Ohio state Sen. William DeMora, D-Columbus, speaks at the Statehouse in Columbus, Ohio. (Photo by Graham Stokes for Ohio Capital Journal. Republish photo only with original story.)
In 2021, Ohio lawmakers decided to tack on partisan labels for state supreme court and appeals court races. In the past two cycles, Democratic nominees for the high court had done surprisingly well amid Republican dominance up and down the ticket. In 2018, Democrats both seats up for election and in 2020 the party picked up one more.
Following those races, Republicans still controlled the court, but with just a single vote majority. State Republican supermajority lawmakers then converted judicial races to partisan contests. Republicans have fared far better since.
In 2022 Republicans swept all three races on the ballot. This year they did so again.
State Sen. Bill DeMora, D-Columbus, wants to go back to the earlier system in which judicial races were a nonpartisan affair. Given the Republican party’s firm grip on every lever of state government and their recent electoral successes he’s unlikely to get many takers — something DeMora himself alluded to in his testimony.
“Thank you for allowing me to provide testimony of Senate Bill 201,” DeMora told the committee, “the third bill today, which I’m assuming has no chance of getting anything other than a perfunctory three minutes in the limelight.”
DeMora’s case & Republican pushback
The reason this year’s Ohio Supreme Court elections were the most expensive in state history, DeMora argued, is that they’ve been reduced to “proxy battles between the Democrats and Republicans.”
State supreme court races drew in hundreds of thousands of dollars from out of state donors to support candidates on both sides of the aisle. Those donations were made to secure partisan gains, DeMora argued, rather than support an individual judge.
“It used to be that our judicial races were contests between individuals who had differences in opinion on interpretation of the law,” he said, “and now it is just a big money slugfest just like any other partisan race.”
DeMora added the inclusion of partisan identifiers has done more than change the complexion of supreme court races. It has also discouraged participation in judicial races one rung down.
“There were also 25 court of appeal seats up for election two weeks ago,” DeMora said. “Only four of those races were contested across the state.”
Despite DeMora’s complaints, state Sen. Rob McColley, R-Napoleon, argued the change has led to greater participation in those judicial races. Prior to the inclusion of partisan labels, he explained, many voters just didn’t vote in the supreme court races.
“In 2018 the drop off would be 79% of those that cast at the top of the ticket cast it in Supreme Court races,” he said. “In 2022 after this change, that number went up to almost 98% of the voters who cast a ballot at the top of the ticket cast it in the Supreme Court races.”
DeMora pushed back, arguing that increase in participation has at least as much to do with ballot positioning (the partisan labels bill also pushed judicial races near the top of the ticket) as it does with party designation.
McColley added that in a 2014 study by the Bliss Institute, 63% of respondents pointed lack of information about the candidate as the primary reason they didn’t vote in judicial elections.
“When they dug deeper, the top response to what information would you like to have was party affiliation,” McColley claimed. “And so I think we gave voters more information, and as a result, millions more cast their ballots in these elections.”
The problem is McColley’s recollection was incorrect. The biggest thing voters said they wanted was information about the candidate’s professional background and views on crime. Of the six kinds of information pollsters asked about, partisan affiliation came in dead last.
Sen. Theresa Gavarone, R-Bowling Green, argued the way to take partisanship out of the picture is for judges to run as independents —something that to her knowledge none had done.
“We have a partisan primary, and then to turn around and pretend that we’re not partisan in the general seems to be disingenuous,” she said.
“It clouds transparency, and it is information that voters want to know,” Gavarone continued. “Are you proposing that we go back and just suddenly pretend we’re not partisan when you come to the general election, when people already have a choice, they can run as an independent right now?”
DeMora said he’d be happy to do away with partisan primaries as well as general election party designations, not to mention an even broader overhaul aimed at reducing partisanship.
“I wouldn’t mind having all the judges have no partisan races,” he said. “Have them be appointed for certain amount of terms, and like other states, if they do a good job, they’re reappointed by an entity, whether it’s a board of judges, other judges, or a nonpartisan or non-judicial board, or the governor.
How states stack up
Even if the DeMora’s proposal is unlikely to gain traction, he’s not wrong that Ohio is an outlier. According to a Brennan Center Review of state policies, only seven rely on partisan elections to pick their state supreme court justices and appeals court judges. Twice that many fill the high court bench with non-partisan elections, but most states use an appointment process.
While states fit into a couple broad categories, their processes offer a real “laboratory of democracy” — a rat’s nest of subtle variations in selection, confirmation or retention that amount to nearly as many different approaches as there are states.
Among those jurisdictions relying on appointments, most give that job to the governor, but Virginia and South Carolina let state lawmakers decide. In states where the governor has the honor, they can’t just pick whoever they want. Most states use a nominating commission to draft a short list of candidates, and several of them require the governor’s selection to face a confirmation vote in the state legislature, too.
When it comes to additional terms, most states require sitting judges to run if they want to keep their seat, but again partisan elections are rare — only five states use them. The biggest share are 18 states that use unopposed retention elections. Kind of like Ohio’s referendum, under that model, an incumbent judge appears on the ballot and voters decide whether to retain them or not. Another 13 states use nonpartisan elections.
And researchers have found attaching party labels on the ballot isn’t just a question of partisan advantage. In a 2011 study, law professors Michael Kang and Joanna Shepherd showed that elected judges were more likely to rule in favor of a particular business interest as that industry’s contributions to their campaigns increase. But importantly, when they untangled their data to compare partisan elections to nonpartisan ones, they found a sharp divide.
“Campaign contributions from business groups are associated at statistically significant levels with judicial decisions for business interests only under partisan elections, but not under nonpartisan ones,” they wrote.
They argued the role of parties in judicial elections is “critical” to understanding the link between contributions and decisions.
“In other words,” they wrote, “what matters is not simply the amount of campaign money at issue, but the level of party involvement in judicial elections.”
Follow OCJ Reporter Nick Evans on Twitter.
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