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Minnesota Supreme Court Elections

November 7, 2016

MINNESOTA SUPREME COURT ELECTIONS: CONSIDERING CONCERNS AND CRITICISMS

By: Sara Lewenstein, Volume 101 Staff Member

On, Tuesday, August 9, 2016, 173,884 voters turned out for primary elections in Minnesota.[1] In some districts, the only item on the ballot was a statewide election for a seat on the Minnesota Supreme Court. The candidates included the following: (1) Craig Foss, a blind lawyer who was running for a seat on the supreme court because he couldn’t get a job,[2] (2) Michelle MacDonald, a lawyer who was arrested in 2013 on suspicion of drunk driving and resisting arrest,[3] and (3) the incumbent, Natalie Hudson, a current supreme court justice who was appointed by Governor Mark Dayton in 2015, who has fourteen years of experience as a judge,[4] and who was endorsed by the Star Tribune.[5] The result was a victory for Hudson who won 64.96% of the vote.[6] MacDonald came in second with 20.49% of the vote and will appear on the general election ballot on November 8 along with Hudson.[7]

Minnesota is one of twenty-two states that elect their supreme court justices.[8] The election procedure is proscribed in the Minnesota State Constitution which states, “[t]he term of office of all judges shall be six years and until their successors are qualified. They shall be elected by the voters from the area which they are to serve in the manner provided by law.”[9] The only qualification for judges of the supreme court is that they be “learned in the law.”[10]

Five main methods of judicial selection are used by states at the supreme court level:[11] (1) assisted appointment, utilized by twenty-two states, (2) non-partisan elections, utilized by sixteen states including Minnesota, (3) partisan elections, utilized by six states, (4) gubernatorial appointment, sometimes with required legislative approval, utilized by four states, and (5) legislative elections, utilized by two states.[12] There are various forms of assisted appointment; however, under the most common form, a nominating commission submits a list of names to the governor, who then appoints a judge from the list.[13] Partisan and nonpartisan elections differ by the ballot. In partisan elections, candidates appear alongside a label designating their party affiliation, while in non-partisan elections, there is no label designating party affiliation.

Minnesota Supreme Court justices are elected for six years, a longer term than other Minnesota politicians, in order to keep the court more independent and less subject to political influence.[14] Even though the first Minnesota legislature chose longer term lengths in order to protect the independence of the court, there are still a variety of criticisms lobbed at judicial elections.[15] One main criticism is that judicially elected justices rule with an eye toward re-election. In one study of 28,000 state supreme court decisions from 470 justices, the author found that the voting of state supreme court justices is strongly associated with the political views of the electorate.[16] Justices who face a Republican electorate are more likely to rule according to standard Republican policy while those who face a Democratic electorate are more likely to rule in a liberal manner.[17] In contrast, the study also found that judges who do not face re-election do not rule in a manner that reflects the electorate.[18]

Possibly even more concerning than the effect elections have on the independence of the judiciary, is the fact that state supreme court justices are being elected by an uninformed electorate. There are concerns over what information justices can discuss with voters and also with general voter ignorance of elections. First, justices have to campaign in order to be elected, but what can they discuss while campaigning? In 2002, the United States Supreme Court struck down a Minnesota regulation that prohibited candidates for judicial election from announcing their views on disputed legal and political issues as violating the First Amendment.[19] Despite this guidance from the Supreme Court, it is still unclear under ethical standards where the bounds of acceptable judicial campaign speech lies.[20] The risk of violating ethical standards creates a risk of an uninformed electorate. In addition to a lack of general knowledge, voters don’t have the fallback of being able to vote according to party affiliation since Minnesota uses non-partisan judicial elections. However, there is a notation on the ballot designating the incumbent.[21] Second, in general, judicial elections suffer from low visibility.[22] For example, a 1995 survey of North Carolina citizens found that about 60% of respondents did not know their state supreme court and intermediate appellate court justices were elected.[23]

The practical realities and tensions inherent in judicial elections can be summed up by the “Rule of 80,” which holds “that 80 percent of the electorate does not vote in judicial elections; that 80 percent is unable to identify candidates for judicial office; that 80 percent believes that when judges are elected, they are subject to influence from their campaign contributors; and that . . . 80 percent of the public favors electing judges.”[24]

Uninformed voters are dangerous because, although it may seem obvious, state supreme courts are central to shaping substantive areas of law.[25] There is always the danger that a small group of voters could elect an unqualified justice to a body who is the highest and final arbiter of state law. This danger led the MinnPost to title their article on the Minnesota Supreme Court primary: “The Minnesota Supreme Court Primary May Be the Most Important Election Nobody’s Heard Of.”[26]

No matter one’s view on the wisdom of judicial elections, Minnesota will continue to have them.[27] Despite concerns about impartiality of justices and an uninformed electorate, this method is part of the democratic process that relies on citizen participation. The best way to counteract the potential problems with judicial elections is to expand education and information so that Minnesotans can go vote and make informed decisions at the polls.

  1. 2016 Primary Election Results, Off. of the Minn. Secretary of St., http://www.sos.state.mn.us/elections-voting/2016-primary-election-results/ (last visited Oct. 12, 2016). ↑
  2. Greta Kaul, The Minnesota Supreme Court Primary May Be the Most Important Election Nobody’s Heard Of, MinnPost (August 2, 2016), https://www.minnpost.com/politics-policy/2016/08/minnesota-supreme-court-primary-may-be-most-important-election-nobodys-heard. ↑
  3. In 2014, MacDonald also ran for a seat on the Minnesota Supreme Court against Justice David Lillehaug. At the time, MacDonald said, “I’ve always wanted to be a judge.” Doug Grow, Michelle MacDonald and the Anatomy of a Political Train Wreck, MinnPost (Sept. 9, 2014), https://www.minnpost.com/politics-policy/2014/09/michelle-macdonald-and-anatomy-political-train-wreck. ↑
  4. Kaul, supra note 2. ↑
  5. Editorial, Natalie Hudson is Clear Choice for Minnesota Supreme Court, Star Trib. (Aug. 1, 2016), http://www.startribune.com/natalie-hudson-is-clear-choice-for-minnesota-supreme-court/388715441/. ↑
  6. 2016 Primary Election Results, supra note 1. ↑
  7. Id. ↑
  8. Sixteen states, including Minnesota use non-partisan judicial elections at the supreme court level, while six states use partisan elections. Judicial Selection in the States, Ballotpedia, https://ballotpedia.org/Judicial_selection_in_the_states (last visited Oct. 31, 2016); see also Methods of Judicial Selection, Nat’l Ctr. for St. Cts., http://www.judicialselection.us/judicial_selection/methods/selection_of_judges.cfm?state= (last visited Oct. 12, 2016). ↑
  9. Minn. Const. art. IV, § 7; see also id., art. IV, § 8 (describing procedure for when there is a judicial vacancy). ↑
  10. Id., art. IV, § 5. ↑
  11. The term “supreme court” is being used generally to refer to a state’s highest court of appeals although not all states refer to it as their “supreme court.” ↑
  12. Judicial Selection in the States, supra note 8. ↑
  13. Id. ↑
  14. Court Info. Off., Minnesota Supreme Court 5 (2016), http://www.mncourts.gov/mncourtsgov/media/CIOMediaLibrary/DocumentLibrary/SupremeCourt5-16.pdf. ↑
  15. See generally Amanda Frost & Stefanie Lindquist, Countering the Majoritarian Difficulty, 96 Va. L. Rev. 719 (2010) (discussing the majoritarian difficulty, the likelihood that elected judges will rule to please their constituents even if it means undermining the rule of law, and proposing federal judicial oversight over elected state court judges as a solution); Dmitry Bam, Voter Ignorance and Judicial Elections, 102 Ky. L.J. 553 (2013) (arguing that the justifications for judicial elections have failed because of voter ignorance); David Pozen, The Irony of Judicial Elections, 108 Colum. L. Rev. 265 (2008) (discussing rationales for and against electing judges); Amanda Frost, Defending the Majoritarian Court, 2010 Mich. St. L. Rev. 757 (2010) (contrasting the decisions of appointed federal court judges and elected state court judges and finding differences in their results). ↑
  16. Joanna Sheperd, The Influence of Retention Politics on Judges’ Voting, 38 J. Legal Stud. 169, 171 (2009). ↑
  17. Id. ↑
  18. Id. ↑
  19. Republican Party v. White, 536 U.S. 765, 788 (2002). ↑
  20. For example, rule 4.2(A)(1) of the Minnesota Code of Judicial Conduct states that judicial candidates must “act at all times in a manner consistent with the independence, integrity, and impartiality of the judiciary.” Minn. Code Jud. Conduct, Canon 4. It is easy to see how campaign statements by judges can cross this line. ↑
  21. Even though there is no notation of party affiliation on the ballot, Minnesota political parties may still endorse a candidate. In 2014, MacDonald was endorsed by the Minnesota Republican Party at its convention, but was not endorsed this year. Kaul, supra note 2. ↑
  22. Gregory A. Caldeira & Keven T. McGuire, What Americans Know About the Courts and Why it Matters, in The Judicial Branch 262, 266 (Kermit L. Hall & Kevin T. McGuire eds. 2005). ↑
  23. Deborah R. Hensler, Do We Need an Empirical Research Agenda on Judicial Independence?, 72 S. Cal. L. Rev. 707, 712 (1999). ↑
  24. Kermit L. Hall, Judicial Independence and the Majoritarian Difficulty, in The Judicial Branch 60, 73 (Kermit L. Hall & Kevin T. McGuire eds., 2005). ↑
  25. See, e.g., Randall T. Shepard, The New Role of State Supreme Courts as Engines of Court Reform, 81 N.Y.U. L. Rev. 1535 (2006). ↑
  26. Kaul, supra note 2. ↑
  27. Absent a constitutional amendment, of course. ↑
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