Court Review: Volume 42, Issue 3-4 - Lessons from an Unusual Retention Election

On November 8, 2005, something happened in Pennsylvania that has never happened before: an appellate judge, a supreme court justice no less, lost an uncontested retention election. Not only was the loss unprecedented, but with the exception of one retention election in 1993, appellate justices and judges in Pennsylvania routinely have won retention by margins of 70% to 30%. This year, one justice lost his retention election and another barely won with just 54% of the vote. Retention elections have been a feature of judicial elections in Pennsylvania since the state constitution was amended in 1969. Following election to an initial 10-year term, judges may file to stand for retention in an uncontested, nonpartisan election, for successive 10-year terms until reaching the age of mandatory retirement. Retention elections, by their very nature (uncontested, nonpartisan, seemingly with foregone conclusions) traditionally have attracted little attention from the public and the media. Appellate justices and judges have not been targeted in retention elections for decisions they had rendered on the bench, and with one exception, were not identified as judges who should be “voted out.” Two thousand five was the year this changed. Typically, judicial elections, and retention elections in particular, are low turnout elections. This year was no exception in that regard: only 18.26% of registered Pennsylvania voters voted in Justice Sandra Schultz Newman’s retention election, and only 17.87% voted in Justice Russell Nigro’s retention election.1 What was different was that voters paid attention to the retention elections and were motivated to vote “no” in a way they never had before. What accounts for this unprecedented event? It is difficult to make broad generalizations from such a low-turnout election, but it seems that the retention elections turned into a referendum on the role of the courts in our system of governance and the meaning of public service, especially as that relates to compensation and the use of public funds. In addition, this election took on special importance as a target of grass-roots activists eager to send a message that populist action can lead to tangible results. The court and the individual justices standing for retention likely would not have drawn such attention were it not for the debate roiling around recent legislative action regarding compensation for legislators, judges, and executive officials, and the lack of any other statewide races on the ballot. Given this special set of circumstances, some may be ready to dismiss this election as an aberration. It is premature, however, to do so. History shows that judicial elections have tended to become more partisan, more expensive, and more like contests for other elected offices, not less. This first retention election of note may mark a point of departure for retention elections in Pennsylvania and may have important consequences for judicial selection in Pennsylvania going forward. Just as important, the 2005 supreme court retention elections hold significant import for the ongoing relationship between the public and the courts and point out that work needs to be done to improve that relationship