In 2003, the American Judicature Society published an article titled “JUDICIAL SELECTION REFORM: EXAMPLES FROM SIX STATES” by Daniel Becker and Malia Reddick. The following is the section on Mississippi.
Partisan to Nonpartisan Elections in Mississippi
“A first step toward improving the current electoral process is to eliminate partisan contests.”1
In 1994, the Mississippi legislature adopted a sweeping reform of the state’s judiciary. The changes, which did not require amendment of Mississippi’s constitution, increased the size of the newly created court of appeals to reduce a backlog of cases before the state’s supreme court, added new judgeships and redistricted existing jurisdictions, and switched most judicial elections from partisan to nonpartisan contests.
The change from partisan to nonpartisan elections was not the preferred option of the
lawmakers who introduced the judicial reform legislation. The package, when first introduced in 1993, envisioned a merit selection plan for judges of the new court of appeals and the eventual adoption of a similar system for the Mississippi Supreme Court.
Many in the reform camp thought the reform legislation had the necessary votes to pass until a “crusty, rural lawmaker”2 introduced an amendment changing the method of selection for members of the court of appeals to elections. The legislator remarked, “If we in this house have to go around ‘tending all these speakings and eat cold sweet ‘taters to keep our offices, then [the court of appeals judges] ought to also.”3 As Mike Mills, who was then chair of the house judiciary committee, has pointed out, the argument of the legislation’s opponents boiled down to this: “The democratic process is nearly intolerable for us. So it must be good for judges.”4 This reasoning proved persuasive to Mississippi lawmakers and led to the creation of a new slate of judicial elections in Mississippi.
This anecdote reveals both the desire for and the difficulty of judicial selection reform in
Mississippi. Legislative reform of Mississippi’s judiciary had been pursued for over a decade before the passage of the 1994 legislation, but sweeping changes in judicial selection would prove difficult to achieve. The switch to nonpartisan elections represented a compromise between reformers, who hoped for a more far reaching change such as merit selection for the appellate courts, and legislators, who preferred the elective system.
PARTISAN TO NONPARTISAN ELECTIONS IN THEORY AND IN PRACTICE
In the United States, there have been two trends toward the adoption of nonpartisan judicial elections. The first took place in the Progressive Era among western and midwestern states, in which switching from partisan to nonpartisan judicial elections was a reaction to perceived faults of partisan elections. States that had introduced partisan elections to ensure accountability among judges found to their dismay that party machines and powerful interest groups came to dominate judicial elections. California, for example, switched from partisan to nonpartisan elections in 1911 to reduce the influence of the political parties and the railroad conglomerates that had dominated the state’s politics since the 1860s.5 In making the switch, California was part of a larger movement. Washington was the first state to introduce nonpartisan elections of judges in 1907, and by 1917 twelve states, mainly in the West and Midwest, had done the same.6 A second trend toward nonpartisan elections has taken place in the South over the last thirty years. Florida, Kentucky, Georgia, Louisiana, Mississippi, North Carolina, and Arkansas have all introduced nonpartisan judicial elections for some or all of their judges in the past three decades. Currently, twenty-two states have nonpartisan elections for some level of court.7
Several of the midwestern and western states that initially tried nonpartisan elections, such as Iowa, Kansas, and Colorado, subsequently changed to merit selection.
Nonpartisan elections seem to have found the happiest home among a northern tier of states (Minnesota, North and South Dakota, Oregon, and Washington8) that made the change during the Progressive Era9 and have not changed their systems since, and in the modern South.
The primary argument for nonpartisan judicial elections is that they remove partisan considerations from the selection process while promoting accountability. Judges may then be selected based upon their qualifications rather than their party affiliation. In this regard, nonpartisan elections succeed, at least to the extent that they “make the party affiliation of the judge a less important determinant of the election outcome.”10 Nonpartisan elections are said also to reduce the frequent turnover on the bench that occurs in some partisan election states since, according to some observers, “[i]n nonpartisan election states, good judges are usually unopposed.”11 A recent study of state supreme court elections confirms that there tend to be lower turnover rates in nonpartisan election states, with more incumbent judges running unopposed and fewer judges being defeated when they do face opponents.12 A third rationale offered for nonpartisan elections is that judges in nonpartisan election states will feel less compelled to adopt ideologically extreme positions in order to appeal to strong partisans.13
In spite of the arguments in their favor, nonpartisan elections are described by some commentators as “possess[ing] all of the vices of partisan elections and none of the virtues.”14
One criticism leveled against nonpartisan elections is that they deprive voters of an important source of information about judicial candidates— their party affiliation. In the absence of the party cue, voters tend to base their decisions on name recognition and incumbency.15
Voters in nonpartisan elections may also rely on other factors to determine their candidate choice, such as their perceptions of the candidate’s ethnicity, sex, or religious background, an “eye-catching nickname,” or even ballot position.16 The lack of party affiliation as a source of information may also affect voter turnout. As one scholar of judicial elections notes, “the party label on the ballot has been found to stimulate voter participation in the absence of specific information about the candidates and the issues.”17 As a result, “partisan judicial elections are far better attended by voters
than nonpartisan and merit retention elections.” 18 Critics of nonpartisan elections also
maintain that judicial campaigns in nonpartisan election states can be more expensive than their counterparts in partisan election states because, without party assistance, candidates must spend large amounts of money to reach voters.19
Perhaps the most serious charge made against nonpartisan elections is that “political
parties, whether reflected on the ballot or not . . . continue to impact judicial campaigns.”20 In some states, judicial elections are nonpartisan only to the extent that candidates appear on the ballot without party affiliations; there are no proscriptions against political parties endorsing judicial candidates or making contributions to their campaigns. In other states, party endorsements and/or contributions to judicial candidates are prohibited by state law, or court rules restrict judicial candidates from seeking or using party endorsements, accepting contributions from political parties, and/or identifying themselves as members of political parties. Yet even in some of these states, parties may be active in the selection process.
The constitutionality of regulating party involvement in judicial elections has been questioned. In 1990, a federal appeals court struck down California’s ban on party endorsements of candidates for nonpartisan offices,21 and a federal district court in 2002 invalidated a Mississippi provision that barred political parties from contributing to and endorsing judicial candidates.22 Although a federal appeals court upheld provisions of Minnesota’s judicial canons that restrict candidates from identifying themselves as members of political parties and using party endorsements,23 other restrictions on judicial candidate speech have been found to violate the First Amendment. In Weaver v. Bonner,24 the U.S. Court of Appeals for the Eleventh Circuit struck down Georgia’s ban on judicial candidates personally soliciting campaign contributions and publicly stated support, and in Republican Party of Minnesota v. White,25 the U.S. Supreme Court invalidated Minnesota’s proscription against judicial candidates announcing their views on disputed legal or political issues.
In general, courts are rejecting the argument that differences between the roles of judges and other elected officials necessitate differences in the regulations that govern their election campaigns. With each court decision, the long-term viability of efforts in nonpartisan election states to insulate judicial elections from political influences grows increasingly uncertain.
THE ROAD TO REFORM
Throughout its history, Mississippi has experimented with all methods of judicial selection. The state’s original constitution of 1817 left the selection of judges to the legislature. In 1832, Mississippi became the first state in the nation to establish popular elections of all judges, and, in 1868, it became one of the first elective states to move away from the election of judges when it adopted gubernatorial appointment with senate confirmation.
Popular elections were reinstated in 1910 and 1914 and have been maintained ever since. The 1994 change from partisan to nonpartisan election of judges came about as a compromise between those who supported merit selection of the judges of the new court of appeals and those who favored judicial elections.
As in other states, concerns began to develop in the late 1980s and early 1990s regarding
the increasing cost of judicial campaigns in Mississippi and the effect that this could have
on perceptions of the independence and impartiality of the judiciary. These concerns were expressed by a variety of groups. In 1990, the Mississippi Commission on Judicial Performance began recommending to both the governor and the legislature that
Mississippi judges be chosen in nonpartisan elections. The commission reiterated its support for nonpartisan elections in its 1993 annual report, noting that it had received more complaints regarding judges’ political activity between 1990 and 1993 than it had in its first ten years of operation combined (1980-1989).26
The Mississippi Judicial Council also urged the legislature to adopt a nonpartisan election plan. In 1992, the president of the Mississippi Bar Association wrote that “serious problems . . . in the method, financing, conduct and the future of judicial elections . . . must be addressed before they become more serious and contribute to any further erosion of our judiciary.”27 A 1994 report by the Mississippi Economic Council described partisan elections of appellate judges as a threat to judicial independence and endorsed a merit selection and retention plan, arguing that the “highest courts of appeal must be independent and free to apply the law without political consideration.”28
In his 1995 “State of the Judiciary” address,Chief Justice Armis Hawkins cited the high cost of judicial campaigns in states such as Texas and Alabama and encouraged the legislature to act to prevent this from occurring in Mississippi.
Despite the concerns in some circles regarding the judicial selection process, the primary motive for the 1994 judicial reform package was the inability of the courts to meet
the needs of Mississippi’s citizens. A 1993 study by the Mississippi Bar’s Commission on the Courts in the 21st Century had concluded that the judiciary’s fundamental problems were the backlog of cases before the state’s supreme court, the inefficiency of the trial courts, the inadequate salaries of Mississippi judges compared to neighboring states, and the outdated information technology used in the courts.29
The 1994 reform package’s expansion of the recently established court of appeals from five to ten judges,30 creation of two new circuit districts, and addition of fourteen new circuit and chancery court judgeships addressed the backlog and inefficiency issues.
The change from partisan to nonpartisan elections was not the most preferred option of
those who pushed the 1994 legislation. The original proposal called for merit selection of judges of the new court of appeals, which reformers hoped would eventually be extended to the supreme court, but, after the “cold ‘taters” speech, the adoption of merit selection appeared unlikely. An amendment calling for nonpartisan judicial elections was introduced in the house of representatives and passed by a vote of 90-32.
Mike Mills, former chair of the house judiciary committee,31 says that making judicial elections nonpartisan “was absolutely a compromise between merit selection and partisan elections.” According to Mills, the desire of reformers was “to break the judiciary away from partisan politics,” and, after it became clear that legislators would not accept merit selection, nonpartisan elections seemed the only way to attain the larger objective.32
The main opponent of the switch to nonpartisan elections was the black caucus. These legislators felt that blacks had made gains through the political party process, and they feared that the elimination of party primaries would negate these advances. The reformers addressed this criticism by redistricting judgeships and chancellorships to create more majority-black districts. They estimated that fifteen to twenty blacks could win circuit and chancery judgeships in the new districts. At the time, only four of forty circuit court judges and two of thirty- nine chancellors were African-Americans. Based on the creation of additional majority black districts, one African-American legislator reported that the bill would “allow minorities to put their imprint on the judiciary.”33 A number of black lawmakers wrote letters to the Justice Department in support of the reform package and particularly nonpartisan elections.
In April 1994, the Nonpartisan Judicial Election Act, along with the rest of the judicial reform legislation, was approved by the house of representatives, the senate, and the governor. The legislation was then submitted to the U.S. Department of Justice for pre-clearance under the Voting Rights Act. After a request for additional information, the Attorney General’s office approved the changes in September 1994. The Nonpartisan Judicial Election Act34 prohibits judicial candidates from “campaigning or qualifying for such an office based on party affiliation” and stipulates that the names of judicial candidates will appear on the ballot with “no reference to political party affiliation.” Because it was the result of a compromise rather than an organized reform effort,
because it was one aspect of a larger reform package, and because it required only legislative rather than popular approval, the Nonpartisan Judicial Election Act was passed with less fanfare than judicial selection reforms in other states. There was also a sense that a less than dramatic change had been achieved.
Judicial elections in Mississippi since the reform have reinforced this sentiment in the
minds of many observers.
THE IMPACT OF REFORM
Judicial elections in Mississippi since 1994 have led some to question whether moving from partisan to nonpartisan elections was an effective response to reformers’ concerns
about the selection process. The reform did not address the financing of judicial elections, and the cost of campaigns continued to rise. In 1996, eleven candidates for four seats on the Mississippi Supreme Court spent a total of more than $1.4 million,35 with substantial contributions coming from trial lawyers and the business community.36 The level of PAC involvement in these elections directed the legislature’s attention to the need for regulation of judicial campaign financing.37
In late 1996 and early 1997, both the legislature and the Mississippi Bar held public hearings to discuss remedies for expensive judicial campaigns. Following the hearings, legislative proposals were introduced to set limits on contributions to judicial candidates and to strengthen disclosure requirements. The bills that were eventually approved by the legislature in April 1998 limited individual and PAC contributions to candidates for the supreme court and court of appeals to $5000 and capped contributions to candidates for all other courts at $2500.38 The legislation also mandated more extensive disclosure of campaign contributions and expenditures.
Unfortunately, the campaign finance regulations that were eventually enacted in 1999
have had little impact on money in judicial races. In 2000, nine candidates for four seats raised nearly $3.4 million,39 and the 2002 election saw the most expensive campaign in the state’s history for a single seat on the Mississippi Supreme Court.40 In addition, the 1999 legislation could not curb independent spending by special interest groups. In 2000,
the U.S. Chamber of Commerce spent nearly $1 million on television advertising favoring
four Mississippi Supreme Court candidates.41 Expenditures by trial lawyer groups brought the total in “soft” money in the 2000 judicial elections to an estimated $1.5 million.42 In the 2002 elections, the Chamber itself did not sponsor any advertisements, but some commentators speculate that it financed the more than $500,000 worth of television ads presented by a group called the Law Enforcement Alliance of America.43 Nine other groups also ran ads in 2002, most of them devoted to tort reform advocacy or opposition.44 According to some observers, taking parties out of the selection process in Mississippi—at least to the extent that judicial candidates appear on the ballot without party affiliation—has led to increased involvement by special interest groups and single-issue organizations who are closely aligned with the parties.
In addition to addressing the financing of judicial campaigns, another provision of the 1999 legislation amended the Nonpartisan Judicial Election Act to prohibit political parties from contributing to or endorsing judicial candidates. Governor Kirk Fordice vetoed the legislation because of his concern that the ban on party contributions and endorsements violated the First Amendment, but the legislature overrode the veto in January 1999. In 2002, a federal district judge agreed with Fordice, striking down the ban as unconstitutional.45
Reformers in Mississippi have sought to address problems with judicial elections from other angles. In 2001, Chief Justice Edwin Pittman proposed changes to the code of judicial conduct that were eventually adopted in 2002. A new disqualification provision allows a party to file a motion to recuse a judge when an opposing party or attorney is a major donor to the judge’s election campaign.46 A “major donor” is defined as someone who, in the judge’s most recent election campaign, contributed more than $2000 in the case of appellate judges or more than $1000 for other judges.47 The rule change also limits the period during which candidates’ campaign committees can accept contributions,48 creates the special committee on judicial election campaign intervention to address allegations of campaign misconduct,49 and requires judicial candidates and their election committee chairpersons to take a two-hour course in campaign practices, finance, and ethics.50
In addition to the amendments to the judicial canons, a constitutional amendment on
the ballot in 2002 would have lengthened the terms of circuit and chancery court judges
from four to six years. Longer terms mean that judges are not required to campaign for election as often. In spite of active support from Pittman and the Mississippi Bar Association, the measure failed by a 61-39 margin. As observed in the introductory quote to this chapter, nonpartisan elections can be an important first step in depoliticizing the judicial selection process. However, as the Mississippi experience illustrates, additional
measures such as campaign finance reform may be required, and new problems such as the increased involvement of special interest groups may arise. With the 1999 legislation,
Mississippi lawmakers demonstrated a willingness to consider incremental reforms. In
amending the supreme court rules that govern judges’ behavior during campaigns, Pittman showed reform leadership as well. The tone and conduct of future elections will determine whether stronger measures are required to preserve the perception of judicial independence in Mississippi.
1. JUSTICE FOR HIRE: IMPROVING JUDICIAL SELECTION, A STATEMENT BY THE RESEARCH AND POLICY COMMITTEE FOR ECONOMIC DEVELOPMENT 5 (2002).
2. Bill Minor, Judicial Election Reform Thwarted by Cold ‘Taters, SUN HERALD, Nov. 8, 2001, at C3.
4. Michael P. Mills and Lee Waddle, Judicial Independence in Mississippi, 20 QUINNIPIAC L. REV. 709, 712 (2001).
5. John H. Culver & John T. Wold, Judicial Reform in California, in JUDICIAL REFORM IN THE STATES 140 (Anthony Champagne & Judith Haydel, eds., 1993).
6. Robert Darcy, Conflict and Reform: Oklahoma Judicial Elections 1907-1998, 26 OKLA. CITY U. L. REV. 519, 524 (2001). The first jurisdiction in which judicial candidates
appeared on the ballot without party labels was Cook County, Ill.
7. This figure includes all states in which judicial candidates are listed without party affiliation on the general election ballot. In some of these states, however, judicial elections are nonpartisan in name only, since the nomination process—if not the selection process—is dominated by political parties. In Michigan, supreme court candidates are nominated at party conventions, and, in Ohio, judicial candidates are nominated in partisan primary elections. Some commentators believe that the selection process in Idaho should also be described as partisan because of the tone of the 1998 and 2000 elections. See, e.g., Selection of State Judges Symposium Transcripts, Judicial Elections and Campaign Finance Reform, 33 U. TOL. L. REV. 335, 338 (2002).
8. Michigan and Ohio also adopted nonpartisan elections during this period, but see id.
9. Three other northern states, Montana, Idaho, and Wisconsin, could be added to this list, but they did not adopt nonpartisan elections during the Progressive Era.
10. Anthony Champagne, The Selection and Retention of Judges in Texas, 40 SW. L. J. 53, 63 (1986).
11. Thomas E. Brennan, Nonpartisan Election of Judges: The Michigan Case, 40 SW. L. J. 23, 26 (1986).
12. Melinda Gann Hall, State Supreme Courts in American Democracy: Probing the Myths of Judicial Reform, 95 AM. POL. SCI. REV. 315 (2001). Hall compares nonpartisan and partisan elections for state supreme court judges nationwide between 1980 and 1994 and shows that, overall, judges in nonpartisan elections are more likely to run unopposed and less likely to be defeated.
13. Anthony Champagne, Interest Groups and Judicial Elections, 34 LOY. L. A. L. REV. 1391, 1427 (2002).
14. Peter D. Webster, Selection and Retention of Judges: Is There One ‘Best’ Method?, 23 FLA. ST. U. L. REV. 1, 26 (1995).
15. Philip L. Dubois, FROM BALLOT TO BENCH: JUDICIAL ELECTIONS AND THE QUEST FOR ACCOUNTABILITY 79-81 (1980). The use of incumbency as a cue in nonpartisan elections may be the reason that fewer incumbent judges are defeated in these states. See Hall, supra note 12.
16. Id. at 81.
17. Philip L. Dubois, Accountability, Independence, and the Selection of State Judges: The Role of Popular Judicial Elections, 40 SW. L. J. 31, 43 (1986).
19. Champagne, supra note 10, at 63.
20. Mark A. Behrens & Cary Silverman, The Case for Adopting Appointive Judicial Selection Systems for State Court Judges, 11 CORNELL J. L. & PUB. POL’Y 273, 298 (2002).
21. Geary v. Renne, 911 F.2d 280 (9th Cir. 1990). California has nonpartisan elections for its superior court judges.
22. Mississippi Republican Party State Executive Committee v. Musgrove, unreported (S.D. Miss., Oct. 21, 2002).
23. Republican Party of Minnesota v. Kelly, 247 F.3d 854 (8th Cir. 2000).
24. Weaver v. Bonner, 309 F.3d 1312 (11th Cir. 2002).
25. See Republican Party of Minnesota v. White, 536 U.S. 765 (2002).
26. Letter from Luther T. Brantley, III, Executive Director, Mississippi Commission on Judicial Performance, to Senator Hainon Miller (Apr. 19, 1994).
27. Alex A. Alston, Jr., Sanctity of the Courts, MISSISSIPPI LAWYER, Apr./May 1992.
28. Mississippi Economic Council, JUSTICE FOR SALE? SELECTING MISSISSIPPI’S APPELLATE JUDGES 7 (April 1994).
29. Mississippi Bar, LAYING THE GROUNDWORK FOR COURT REFORM: A REPORT OF THE MISSISSIPPI BAR’S COMMISSION ON THE COURTS IN THE 21ST CENTURY (July 1993).
30. A court of appeals composed of five judges had been created in 1993. Under the legislation that created the court, the judges were to be elected by the voters in November 1994.
31. Mills was later appointed, then elected, to the Mississippi Supreme Court and now serves as a federal district judge.
32. Telephone interview with Mike Mills, former chair of the house judiciary committee (Sept. 26, 2002).
34. Miss. Code Ann. § 23-15-974 – 23-15-985.
35. Mary Libby Payne, Mississippi Judicial Elections: A Problem Without a Solution?, 67 MISS. L.J. 1 (1997).
36. Business Exerts Influence in Supreme Court Races, CLARION-LEDGER, Feb. 11, 1996, at 1.
37. Reed Branson, Campaign Reform Measure Receives Approval in House, COMMERCIAL APPEAL, Feb. 1, 1997, at A12.
38. Miss. Code Ann. § 23-15-1021.
39. Roy A. Schotland, Financing Judicial Elections, 2000: Change and Challenge, 2001 L. REV. MICH. ST. U. DET. C. L. 849 (2001).
40. Three candidates for a single seat raised nearly $1.7 million. Beverly Pettigrew Kraft, NATIONAL CENTER FOR STATE COURTS, 2002 APPELLATE COURT RACES IN MISSISSIPPI: THE CANDIDATES, THE ISSUES, AND THE BACKDROP (Nov. 22,
41. The Chamber refused to file reports as to how much it spent or who its contributors were, asserting that its expenditures were for issue advocacy rather than in support of particular candidates. A federal district court disagreed, but the court of appeals ruled that the Chamber did not need to file disclosure statements. Chamber of Commerce of U.S. v. Moore, 288 F.3d 187 (5th Cir. 2002).
42. Judicial Elections: Longer Term Should be OK’d Nov. 5, CLARION-LEDGER, Oct. 25, 2002, at 10.
43. Michael Orey, Business Targets Judicial Race in ‘Tort Mecca,’ WALL ST. J., Oct. 30, 2002, at B1.
44. Elizabeth Amon, Courting the Vote, NAT’L L. J., Oct. 28, 2002, at A1.
45. See supra note 22.
46. Code of Jud. Conduct, Canon 3E(2).
47. Note that these amounts are lower than the contribution limits established in the 1999 legislation.
48. Code of Jud. Conduct, Canon 5C(2). Contributions are prohibited “earlier than 60 days before the qualifying deadline or later than 120 days after the last election in which the candidate participates during the election year.”
49. Code of Jud. Conduct, Canon 5F.
50. Code of Jud. Conduct, Canon 5F(7).