Minnesota Judicial Elections:
Better Than the "Missouri Plan"
By Stephen C. Aldrich
In her concurrence to the recent Republican
Party of Minnesota v. White1 (Wersal) decision,
Justice O'Connor says that electing judges is a fundamentally misguided
idea. If there must be elections, she opines, the "Missouri Plan"
is the better way to go:
Minnesota has chosen to select its judges through contested popular
elections instead of through an appointment system or a combined appointment
and retention election system along the lines of the Missouri Plan.
... If the State has a problem with judicial impartiality, it is largely
one the State brought upon itself by continuing the practice of popularly
Justice O'Connor's view does not reflect the Minnesota experience.
The Missouri Plan has serious flaws.
Minnesota legislators and voters should be wary of major change in our
judicial election system. Here are four reasons why: (1) state trial
courts are different; (2) judicial independence is encouraged in Minnesota;
(3) the use of "incumbent" on the ballot to denote the sitting
judge gives stability to our bench; and (4) the "Missouri Plan"
has many flaws as well.
State Trial Courts are Different.
There is great difference between federal courts, where Justice O'Connor
now serves, and the state trial bench. 3 Federal
cases involve the unique interests of our federal government ("federal
questions") as well as principles and disputes affecting the citizens
of 50 states ("diversity"). Local or state elections for federal
judges would make them subject to far too much parochial influence.
And no one suggests there is a useful or practical way to elect federal
judges using voters from more than one state.
To be sure, our district courts handle some federal questions as well
as major civil and criminal matters. But the bulk of the work of state
trial judges is about local law enforcement, divorce, juvenile delinquency
and neglect, housing, civil conciliation, and similar matters. That
is, the work involves the daily lives of thousands of citizens each
week.4 Individual daily court dockets with 20-200
people on them are often seen.
Such "retail" courts place a premium upon the ability to handle
high volumes of (often unhappy) parties. Most have no lawyers, and all
are being greatly inconvenienced, many correctly so. Such calendars
require extra courtesy, restraint, and occasional good humor. Elections
make state trial judges more sensitive to how people, including lawyers,
are treated in the courts. That is because all the successful challenges
of judges in Minnesota for the last 30 years have been based upon widespread
claims of poor judicial demeanor.5
Judicial Independence Maintained Here.
From some states, we hear of judicial independence being compromised
by hotly contested elections and the campaign contributions made to
them. That does not appear to have infected Minnesota elections. Minnesota
judges are regularly criticized for their opinions in the news media,
but we continue to call them as we see them. Why?
To date, Minnesota has encouraged judicial independence and fairness
in four ways. (1) Six-year terms combined with (2) nonpartisan elections,
and (3) the "incumbent" ballot designation to give us more
job security than U.S. Senators. And (4) we have no big money to support
challenges in our judicial elections. Those factors have combined to
give incumbents a significant but not insurmountable advantage, as evidenced
by the few successful challenges to sitting judges documented above.
That electoral advantage permits and encourages the judicial independence
so important for our free society. As shown by the few successful challenges
since 1972, no judge has lost a seat because of unpopular decisions,
only because of challenges based on demeanor.6
Most of the states where there have been problems with big money have
partisan elections.7 Minnesota does not.8
In those states, business and union funding has been joined to
interested lawyers attracted to judicial elections by "tort reform"
issues, especially at the Supreme Court level.
Minnesota's Judicial Standards bar candidates from soliciting funds
and from knowing who contributed to the campaigns by the committees
that seek their election. Those who raise funds for judges in Minnesota
say that neither unions nor businesses contribute significantly in Minnesota.
The Minnesota business community is reported to be generally satisfied
with the quality of Minnesota courts.9 Thus,
most contributions come from friends, relatives and lawyers. In addition,
with over 270 trial judges in the state, 61 in Hennepin County alone,
nobody gains enough ideologically by funding unsuccessful challenges
to trial judges to make the financial cost worthwhile.
Contributions in Minnesota are modest. To the extent that lawyers contribute
to such campaigns, they do so out of the desire to keep or have judges
who are doing Ñ or will do Ñ a good, fair job. It makes
lawyers' lives easier.
"Incumbent" Gives Valuable Stability to Bench.
Some have argued that the "incumbent" designation is undemocratic
and a denial of "fairness" in judicial elections. To the contrary,
the designation of "incumbent" serves the valuable social
purpose of a stable judiciary, changeable when there is the requisite
political will. The few successful challenges keep us on our toes; the
lack of opposition to most judges provides stability. An election without
"incumbent" designation is apt for executive and legislative
offices, but not for the different function of courts in protecting
individual rights.10 Some complain about long
ballots for judicial elections with no opponents and too little knowledge
of the candidates where challenges are made.11
My experience is that many voters know as much about judicial candidates
as they really want to know.12 Because Minnesota
voters want a stable, fair, courteous, and competent bench, they want
to know who the incumbent is and whether there is any serious reason
to make a change. The ballot tells who the incumbent is, and the candidates
and their endorsers -including lawyers and newspapers- help us decide
if change is called for. With the explosion of bar, lawyer, interest
group, and candidate websites, there is now little excuse for voting
Since 1968, judicial candidates in both Hennepin and Ramsey counties,
when endorsed by both the lawyers' straw polls and the major newspapers,
have won all but one contested race.13 When those
endorsements have split, the result is mixed.14
Weakness of Retention Elections.
The ABA and Justice O'Connor claim that the so-called "Missouri
Plan" of judicial retention elections is better. Both a task force
of our Minnesota State Bar Association (1997) and the Minnesota League
of Women Voters (1997-99) recently studied retention elections and found
When nobody pays any attention to judicial elections, they provide stability.
Once single-issue groups and moneyed interests discovered them, retention
elections have been used successfully to attack judges for their controversial
decisions. Big money and whisper campaigns show up at the last minute
to target a particular judge without comparing that judge to a potential
replacement. That happened to Supreme Court judges in California and
Tennessee16 who issued controversial decisions
in death penalty cases. Their records were distorted by special interest
groups with big money behind them.
Even worse, retention elections mean that every judge has to worry about
opposition at every election. When no one is required to file as an
individual challenger, no judge knows if there is a move to replace
him or her until too late. By contrast, in Hennepin County this year,
21 of 28 judges whose terms expire have no opponent. Thus, stability
of 21 judgeships is assured and those 21 are freed of electoral concerns.
The same is true of the appellate and other Minnesota trial court judges
who have no opponents.
As this is written, the 14 sitting judges with challengers17
are forming committees to campaign on their behalf.18
They will be distracted for four months. If prior experience continues,
one might lose. That is a small price to pay for a bench that is fundamentally
competent, fundamentally fair, and stable but not unchangeable.
Don't Change Now; Keep the Money Out.
As things stand, we should keep our present system of judicial elections.
The numbers of judges, their six-year terms, nonpartisan races, small
money involvement, generally civil debates, remaining campaign restrictions
in our Judicial Ethics Code, and generally fair and competent work of
our judges have protected us from the evils that Justice O'Connor and
her majority colleagues fear about elections. They also protect us from
trial court judges who treat people poorly or are regularly unfair.
The Court's recent decision in Republican Party of Minnesota v. White
has probably encouraged a few opponents this time. We will see some
more in the next couple of elections as people plan how to use the new
freedom to speak. To date, Minnesota has rejected big money judicial
campaigns. As long as big money stays on the sidelines, Minnesota likely
will continue to have a competent, fair, and stable but changeable judiciary.
If special interests and moneyed interests successfully target many
fair, competent, courteous judges, Minnesotans will likely reconsider
In the meantime, both judges and citizens will continue to be the beneficiaries
of the wisdom of our state's founders. They created a constitution and
a judiciary remarkably free of partisan taint and still protective of
individual rights and fairness to all.
1 . Republican Party of Minnesota et al. v. White et al., No. 01-521,
___ U.S. ___ (filed 06/27/02) http://laws.findlaw.com/us/000/01-521.html
2. Id., Concurrence 1.
3. Justice O'Connor served as a judge of the Arizona trial courts and
a justice of the Arizona Supreme Court. Perhaps the partisan elections
there have affected her view.
4. In Hennepin County alone, there are about 750,000 court filings each
5. With about 300 seats up for election, there have been only five successful
Hennepin County challenges since 1966: 1974 (Sedgwick over Edstrom);
1976 (Albrecht over Chapman); 1990 (Wexler over Rogers); 1994 (Karasov
over Rice); and 1996 (Steenson over Christensen). In Ramsey County only
three challenges have been successful: 1984 (Marrinan over Kirby); 1996
(Finley over Sands); and 2000 (Tilsen over Bowser). In Greater Minnesota
there have been two recent defeats of sitting judges: 2000 (Goodhue
County -Blakely over Hong) and 1994 (Carlton County - Merritt over Seitz).
7. A recent trial bench race in Tuskegee, AlABAma is reported to have
required raising $175,000.
8. The largest sum I have heard spent for a judicial race in Hennepin
County is $50,000 - and that was the losing candidate's attempt to save
a seat. In a county with 700,000 registered voters, $50,000 is pennies
in today's world of election finance.
9. The U.S. Chamber of Commerce ranked Minnesota as fifth in the nation
in the competency of its judges. U.S. Chamber of Commerce, State Liability
Systems, Ranking Study, Final Report, January 11, 2002, p. 17. In that
same survey, Minnesota juries were rated fifth best by Chamber standards
in their predictability. http://www.litigationfairness.org/component/ilr_media/30/pressrelease/2002/341.html.
Minnesota is a state where attorneys reasonably expect to get a fair
10. The 1999 study of the Minnesota League of Women Voters strongly
recommends keeping the "incumbent" designation.
11. Recent Minnesota studies note how few people in a post-election
survey could remember whom they voted for, much less why. No comparative
statistics for legislator, Library Board, or Watershed District member
were given. See Minnesota State Bar Association, "Report and Recommendations
of the 1997 MSBA Task Force on Judicial Elections," June 19, 1997;
see also Minnesota League of Women Voters, "1997-99 State Study:
Election of Judges."
12. If we really want to reduce voter frustration and confusion the
Legislature could declare elected any judge with no opponent when filings
close. No one can remember when a judge has lost a write-in challenge.
13. Poston over Peterson in 1996, but by less than 1 percent of the
14. Winners: Hennepin 1976 (Albrecht) and 2000 (Karasov). Losers: 1996
(Sands) and 1998 (Bowser).
15. See note 11, supra.
16. The most recent example is Tennessee Supreme Court Justice Penny
17. Hennepin =7; Ramsey = 1; Greater Minnesota = 6.
18. So also were the 12 aspirants for the open ("Atkins")
seat in Scott County, 1st Judicial District. The primary results will
have narrowed that to two by the time this is published.
STEPHEN ALDRICH was elected in 1996 as a judge of the 4th
Judicial District, Hennepin County. He now has an opponent for reelection
this fall. Details may be found at www.hcba.org, www.mw-lawyers.org,