Voter Ignorance and Judicial Elections

48 Pages Posted: 29 Aug 2016

See all articles by Dmitry Bam

Dmitry Bam

University of Maine - School of Law

Date Written: March 1, 2013

Abstract

Despite their initial promise and democratic pedigree, judicial elections in the United States have been described as an “unmitigated failure” and a “hopeless disaster.” Even the most ardent defenders of judicial elections acknowledge their capacity to undermine judicial independence and impartiality. But the elections’ potential to promote judicial accountability has also remained unfulfilled. Although scholars have offered different theories and explanations for these shortcomings, and have advanced a panoply of solutions, the results so far have been underwhelming. One after another, scholars and judges have called for judicial elections to be abandoned.

This article argues that voter ignorance is at the root of the problem. The public’s political ignorance is widespread, and that is particularly true when it comes to electing judges. Neither judicial independence nor judicial accountability can exist when a judge’s job is in the hands of an uninformed electorate. Instead, voter ignorance breeds judicial fear, which in turn leads to less independent, less impartial, and even less accountable judges.

The article proposes ballot notations as a novel solution to the voter ignorance problem. Specifically, states should include on their ballots an evaluation of judges by a non-partisan judicial performance evaluation commission, made up of lawyers, litigants, academics, judges, and public (lay) members. This would be a substantial change in practices. Very few ballot notations are used in modern elections generally, and judicial elections in particular. The ones that are used, candidates’ party affiliation and incumbency status, have proven to be ineffective in the context of judicial elections. This proposal also is novel in theory. Scholars have ignored the judicial-election ballot itself as holding a potential solution to the voter ignorance problem. But ballot notations can alleviate the voter ignorance problem and, at least partly, negate judicial fear. These notations, therefore, may restore the original vision of judicial elections, allowing voters to hold judges accountable while also preserving judicial independence.

Suggested Citation

Bam, Dmitry, Voter Ignorance and Judicial Elections (March 1, 2013). Kentucky Law Journal, Vol. 102, No. 3, 2013-2014, Available at SSRN: https://ssrn.com/abstract=2830096

Dmitry Bam (Contact Author)

University of Maine - School of Law ( email )

246 Deering Avenue
Portland, ME 04102
United States

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