State supreme court changes, 2016

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2016 State Judicial Elections
2017 » « 2015
Part 1: Overview
Part 2: Supreme Courts
Part 3: Partisanship
Part 4: Changes in 2016

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Efforts undertaken in 2016 to reshape the structure and composition of state supreme courts could have far-reaching effects on political control in several states.

HIGHLIGHTS

States with Republican trifectas revised rules on judicial selection and the size and authority of courts.

North Carolina's law allowing retention elections was ruled unconstitutional.

Lawmakers in Arizona and Georgia increased the number of justices on their supreme courts.

Overview

The state judiciary is unique: it is the least prominent branch of state government, and it is also the branch that saw in 2016 the most passionate efforts for institutional change.

Judicial selection was the most-debated issue. While nearly half (24) the states use some form of assisted appointment to select state supreme court justices, 16 use nonpartisan elections and seven use partisan elections. West Virginia moved to nonpartisan elections for the state supreme court in 2015—becoming the fourth state to do so in the past 20 years.

Arizona and Georgia—both controlled by Republican trifectas—passed bills changing the size of their high courts. Kansas and Oklahoma—also Republican trifectas—considered measures to strip their state supreme courts of authority after controversial rulings.

Historical context

The size and shape of state judiciaries are not as fixed as state legislatures or state executive offices. Each year, several state legislatures take up the question of judicial institutional reform and change.

2016 was remarkable in the number of changes driven by legislative action alone. It is more common that legislatures (and citizens) need to place constitutional amendments on the ballot to reshape their courts. Recent examples include:

• In 2015, Wisconsin voters approved Question 1. The amendment, which was referred by the legislature, changed the method for electing the Wisconsin Supreme Court chief justice. The change allowed the court's conservative majority to replace liberal-leaning Justice Shirley Abrahamson with the more conservative Chief Justice Patience Roggensack.
• In 2014, Tennessee voters approved Amendment 2. The amendment, which was referred by the legislature, gave the legislature the power to approve or reject the governor's judicial nominees.
• In 2010, Nevada voters rejected Question 1. The amendment, which was referred by the legislature, would have replaced Nevada's nonpartisan election of judges with assisted gubernatorial appointment.

Changes to judicial selection

Several states are re-evaluated how they select their judges.

States use variations on five methods to select state judges: partisan elections, nonpartisan elections, legislative elections, gubernatorial appointment, and assisted appointment (also known as merit selection or the Missouri Plan).

Most states use assisted appointment at some level; even states that elect judges frequently use assisted appointment for filling interim vacancies. Among states that elect judges, the trend in recent years has been toward nonpartisan elections. West Virginia joined Arkansas, Mississippi, and North Carolina in 2015 to become the fourth state to move from partisan to nonpartisan elections in the past two decades.

Even where states have moved to nonpartisan elections, however, legislative efforts to return to partisan elections regularly occur.

Retention elections overturned in North Carolina

In June 2015, Gov. Pat McCrory (R) signed into law a bill requiring sitting justices on the North Carolina Supreme Court to seek re-election in retention elections rather than in nonpartisan competitive elections, effective in 2016. The law specified that for a sitting justice to be re-elected, he or she must receive at least 50% "yes" votes in a yes-no retention election.

In March 2016, however, a three-judge panel of Wake County Superior Court judges ruled this law unconstitutional, stating that "a retention election is not an 'election' for the office of supreme court justice as required by the constitution."

The state appealed the ruling to the North Carolina Supreme Court. On April 13, 2016, the court heard oral arguments on the constitutionality of the retention election law. Justice Robert H. Edmunds Jr. was recused from hearing the case, as he planned to seek re-election in 2016. On May 6, the remaining justices split 3-3 on the question, and therefore the lower court's ruling, overturning the law, was upheld.

Three challengers filed to run in a contested election against Edmunds, including attorney Sabra Faires, one of the plaintiffs in the lawsuit. Because there were more than two candidates, a primary election was required. North Carolina's regularly scheduled primary was held March 15, in the wake of the ruling striking down the retention law and before any provision could be made for a contested judicial election. The state elections board set a special primary for June 7. Edmunds and challenger Michael R. Morgan finished first and second, respectively, of the four candidates. Morgan defeated Edmunds in the November 8 general election.

In July 2016, the North Carolina State Legislature enacted a smaller change affecting judicial elections. SB 667 changes the ballot order for candidates for the North Carolina Court of Appeals. The order before the bill's passage was random; the bill specifies that the candidates of the party that won the last gubernatorial election must be listed first. In 2016, this means that Republican candidates for the court of appeals will be listed first, since the winner of the 2012 North Carolina gubernatorial election, current Governor Pat McCrory, is a Republican. Although court of appeals candidates are not nominated by political parties and are chosen in nonpartisan elections, a previously passed law already requires that candidates' party affiliations be listed on the ballot. State supreme court elections, however, have no party affiliation listed on the ballots.

Advocacy, proposed changes, and lawsuits

Pennsylvania

In February 2016, three former governors of Pennsylvania—Mark Schweiker (R), Ed Rendell (D), and Tom Ridge (R)—held a statewide conference call in which they argued for changing the state's system of partisan elections. The men argued that recent judicial scandals in Pennsylvania, along with the record-breaking $16 million in campaign spending in 2015, necessitated the change. "Judges must be independent, and judicial independence is one of the hallmarks of our democracy," Rendell said. "Judges can't be independent if they have to raise that kind of money."

Arkansas

In March 2016, former Arkansas Governor Mike Beebe (D) argued along similar lines that the state's 2016 supreme court elections, which broke the state's previous record for campaign spending, suggested the need for selecting judges by appointment rather than by the state's existing method of nonpartisan elections.

In June 2016, the Arkansas Bar Association weighed in with a report by an association task force that advocated moving Arkansas from election of judges to gubernatorial appointment with the assistance of a judicial nominating commission. The state's constitution mandates elections for judges, so changes to the judicial selection method would necessitate a statewide vote on changes to the contitution. At least one member expressed concern about reducing the public's participation in the process.

Texas

In July 2016, a group of Latino plaintiffs sued the governor and secretary of state of Texas over the state's method of electing supreme court justices for both its high courts. The plaintiffs claimed that the current at-large election method violates the federal Voting Rights Act. At the time of the lawsuit, all nine justices of the Texas Supreme Court and all nine justices of the Texas Court of Criminal Appeals are elected by all voters of the state. The plaintiffs claim that Latino voters are "politically cohesive" and vote as a bloc but that this method prevents Latinos from using that bloc voting power to elect candidates of their choice, because they are outnumbered by the white voters of the state. The plaintiffs argued that this violates the provision of the Voting Rights Act that prohibits any "standard, practice, or procedure" that "results in a denial or abridgement of the right of any citizen of the United States to vote on account of race or color." In other words, the plaintiffs claimed that preventing Texas Latinos from voting as a majority bloc results in denying or abridging Texas Latinos' right to vote based on race.

The plaintiffs asked the court to declare that the at-large election practice violates the Voting Rights Act and to enjoin the state government from using it. Their suggested election method is to elect individual justices from individual districts, at least two of which would be majority Latino.

The text of the complaint is available here.

Changes to court authority

After contentious rulings, lawmakers in Kansas and Oklahoma considered reshaping court responsibilities.

Two other Republican trifectas—Kansas and Oklahoma—considered restricting state supreme court authority after recent controversial rulings.

Kansas Supreme Court

In March 2014, the Kansas Supreme Court ruled that the state's education funding plan was unconstitutional due to the funding shortfalls and inequalities it created. The court ordered the legislature to revise the funding program.

Earlier in 2014, Governor Sam Brownback (R) preempted potential court action in his State of the State address:

“

This is the people’s business, done by the people’s house through the wonderfully untidy—but open for all to see—business of appropriations. Let us resolve that our schools remain open and are not closed by the courts or anyone else.

”

After the ruling, the Republican-led Kansas Legislature and Gov. Brownback responded with two pieces of legislation: one that removed the supreme court's administrative control over lower courts and another that would defund the entire state judiciary if the court found the first law unconstitutional.

In December 2015, the court did find the first law unconstitutional, setting up the funding crisis triggered by the second. In February 2016, Gov. Brownback signed a new law rescinding the removal of funding.

In March 2016, the Kansas State Senate narrowly passed a bill to expand and define impeachable offenses for supreme court justices. Specifically, the bill defines the phrase “high crimes and misdemeanors,” which is cited as cause for impeachment of justices in the Kansas State Constitution. If the bill passes, high crimes and misdemeanors for supreme court justices would include, among other offenses, “commission of a breach of judicial ethics," “attempting to subvert fundamental laws and introduce arbitrary power," and “attempting to usurp the power of the legislative or executive branch of government.” The bill, SB 439, moved to the Kansas House of Representatives Committee on Judiciary for review.

In May 2016, the state supreme court again rejected a legislative plan for school funding and warned that if the problems weren't solved by June 30, a court order would prevent schools from reopening in the fall. Legislators adjourned their regular session without further addressing the school funding situation.

The legislature began a two-day special session on June 23, 2016, to pass a new bill for school funding. In addition, two bills were immediately introduced by the House Judiciary Committee: a constitutional amendment that would cap school funding at 45 percent of the state budget and a bill to create a superior court that would have appellate jurisdiction over the state supreme court. Click here to read the text of the bill. It prescribes that the superior court would have appellate jurisdiction over decisions of administrative bodies and officers of the state and appellate jurisdiction over all matters for which the state supreme court has original jurisdiction—and that the superior court would be the court of last resort for all matters over which it has jurisdiction, meaning that the supreme court would have no authority to hear rulings of the superior court. The bill provides a timeline for appointing judges and setting up the court by the summer of 2017.

The legislature passed the new funding bill during the special session, Gov. Sam Brownback signed it, and the high court quickly issued a ruling in advance of the June 30 deadline accepting the new funding plans and avoiding school shutdown. However, the court case over school funding continued. The state supreme court heard oral argument from the state and from school districts on Sept. 21.

Oklahoma Supreme Court

In March 2016, Kansas State Rep. Jason Nelson (R) introduced a bill that would require decisions of the Oklahoma Supreme Court to be placed on the ballot for voter approval. All claims made by the court on the constitutionality of a law could be overridden by voters.

The court had recently handed down rulings on same-sex marriage and the display of the 10 Commandments on state property that have angered some conservatives in the state.

Changes to the size of supreme courts

Arizona and Georgia Republicans increased the number of justices.

The number of justices on state supreme courts varies between five and nine; most states have seven. Two states under Republican trifectas—Arizona and Georgia—enacted laws in 2016 to increase the size of their state supreme courts.

In both cases, the new justices are to be appointed by the governor.

Arizona Supreme Court

For the third time in the past five years, bills were introduced in the Arizona Legislature to increase the size of the state supreme court. HB 2537, passed by the House in February and by the Senate in May, would add two new justices to the court, bringing the total count to seven. Governor Doug Ducey (R) signed the bill on May 18. Ducey will appoint the new justices—the second and third justices of his term.

Estimates for the 2015 plan to increase the size of the court suggested that the two additional justices would cost an additional $1 million per year in related support costs.

In a statement, Chief Justice Scott Bales said that while he would support a comprehensive overhaul of state judicial funding, the court's current "caseload and population do not mandate more justices."

Georgia Supreme Court

In March 2016, the Georgia Legislature approved a bill that would give Governor Nathan Deal (R) the authority to name two new justices to the high court, bringing the total to nine. Deal signed the bill on May 3. The two additional justices will be Deal's fourth and fifth appointments, constituting a majority of the court.

See also

• Judicial selection in the states