Voter Ignorance and Judicial Elections

This Article proceeds as follows. Part I begins by offering a brief history and background of judicial elections in the United States, including a description of the two major justifications for judicial elections. The first, made by the original proponents of judicial elections, is that elections would make judges more independent, freeing them to make decisions according to the requirements of the law. I call this the “independence theory of judicial elections.” The second justification, made frequently by defenders of judicial elections, is that judicial elections allow the electorate to hold judges accountable for mistakes, whether intentional or unintentional, as well as improper or unacceptable conduct in office. This I call “the accountability theory of judicial elections.” Part II argues that these visions have both failed, and they have failed for one very important reason: voter ignorance. Part III then argues that ballot notations are particularly promising in the context of judicial elections. Most importantly, Part III proposes that the states should use a non–partisan judicial performance evaluation commission to assess the performance of any candidate with prior judicial experience, and notify the voters (again, directly on the ballot) how the candidate performed while in office with respect to certain objective and subjective measures. Part IV answers some potential objections to my proposal. The Article’s conclusion is not that ballot notations will remove all of the challenges associated with judicial elections. They are not perfect solutions. But even partial solutions hold value in this context, for judicial elections are an entrenched reality of our political system, and few other reform proposals hold much promise. Ballot notations, by contrast, could make a large improvement in judicial elections, and that improvement is well worth pursuing