Judicial Elections in Minnesota
Current Issues on the Independence of the Judiciary
The White Decision
Prior to 2002, candidates for judge in Minnesota were governed by judicial canons in the Code of Judicial Conduct that governed judicial elections. The canons prohibited judicial candidates from stating their views on “disputed legal and political issues.”
The White case was brought in federal court by Greg Wersal and the Minnesota Republican Party, contending that the judicial canons violated their first amendment rights to free speech. The United States Supreme Court, in a 5-4 vote, agreed and struck down the canon that prohibited judicial candidates from stating their views on such issues. In 2005, the Eighth Circuit Court of Appeals struck down additional canons, based on the Supreme Court decision.
As a result of these decisions, candidates for judge in Minnesota can now:
Candidates are still prohibited from:
- Personally asking an individual for a contribution
- Making pledges or promises of certain conduct other than impartial performance of duties
- Committing themselves with respect to a certain case, controversy or issue
- Doing anything that reasonably questions their impartiality as a judge
Politicized Campaigns and Money
The White decision opens the door for increased political attacks and campaign expenditures in judicial elections. We cannot be confident that our good track record of impartiality in our judicial candidates will continue.
Nationally, a record amount of money is being spent on judicial elections, particularly in state Supreme Court races:
- Candidates in Alabama raised over $13 million in their Supreme Court elections
- Illinois Supreme Court race in 2004 set a fundraising record of over $9 million
- Supreme Court expenditures in Georgia have increased from $39,000 for one race in 2000 to $4 million for a seat in 2006
- Closer to home in Wisconsin, an open seat for the Wisconsin Supreme Court in 2007 generated $2.7 million in spending from the candidates and more than $3 million spent by outside groups
Reforms Under Consideration
Bills have been introduced in the Minnesota Legislature to reform Minnesota's judicial selection process. HF 1083 and SF 1082 propose to replace our current system of selecting judges with a retention election system. In a retention election voters would be asked to vote to retain a judge or not – there would be no opponent on the ballot. A judicial evaluation commission would evaluate the judge’s work and provide that information to the voting public. If the majority of voters voted not to retain the judge, the governor would then appoint someone else to the position using the methods currently in place for mid-term appointments. If they judge were retained, he or she would serve an eight-year term.
Changing our state's election system to this model would require that the voters approve an amendment to Minnesota's Constitution.
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