How are political affiliations identified?
Political party disclaimer: Listed party identification is determined by a variety of factors depending on the state process. Party identification is determined in partisan election states by the affiliation as publicly listed on the ballot. For some non-partisan election states, partisanship is assigned based on the party nominating the candidates, endorsements, or partisan primary processes. In some merit selection and governor selection states, the party identification could be indicated on public materials such as a judgeship application or public registration with a political party. For other merit and governor selection states, party identification indicates the appointing governor’s party.
How are priority states chosen?
To ensure our courts are protecting the rights of all individuals, judges must reflect the lived experiences of the communities they serve and the breadth of the legal profession. Different life experiences could inform the way a judge writes an opinion or even interprets the case before them. Priority states may be chosen because they have an upcoming election or vacancy, the state supreme court is set to consider issues of national importance such as voting rights, or the state has recently changed its methods for selecting judges.
I work at a non-profit, how can my organization engage on this issue?
Federal and state laws regulate the type of activity nonprofit organizations can engage in around elections. AFJ’s Bolder Advocacy program may have resources for your state. Review Bolder Advocacy’s resources here. If you have an immediate question, you can call our technical assistance hotline for free at 1-866-NPLOBBY.
Terms you should know
State supreme court
- Not every state’s highest court is called a supreme court. For example, Maryland calls their highest court the Court of Appeals. New York’s highest court is also known as the Court of Appeals. “State supreme court” used on this hub refers to the highest-level appellate court in each state.
- Judges are listed on the ballot with a political affiliation and are chosen through public elections. Under this model, candidates are identified as Democrat, Republican, or Independent on the ballot. Currently, eight states use this selection model. Those states are: Alabama, Illinois†*, Louisiana*, New Mexico†, North Carolina, Ohio, Pennsylvania†, and Texas.
- *Rather than a statewide election, justices in Louisiana and Illinois are voted by geographic judicial districts. This means that each justice represents a specific region or area of a state. The justice must come from that part of the state and only voters in that region may vote for that justice.
- †Illinois, New Mexico, and Pennsylvania select their judges by partisan election if they are being elected to their first term. Judges in these states are retained by retention election for subsequent terms.
- Candidates are not affiliated with a political party on the ballot and are chosen through public elections. However, in some states like Michigan and Ohio, there are partisan primaries or partisan nominating conventions to select the candidates to represent the Democratic and Republican parties on the general election ballot. In Michigan, political parties hold nominating conventions to select their candidates. In Ohio, partisan primaries are held to determine which candidates will be on the general election ballot.
- In total, 14 states, including Michigan, use this selection process. The other states include: Arkansas, Georgia, Idaho, Kentucky*, Minnesota, Mississippi*, Montana, Nevada, North Dakota, Oregon, Washington, West Virginia, and Wisconsin.
- *Rather than a statewide election, justices in these states are voted by geographic judicial districts. This means that each justice represents a specific region or area of a state. The justice must come from that part of the state and only voters in that region may vote for that justice.
- Rather than publicly interviewing, selecting, and electing the next justice on the state supreme court, in two states, supreme court justices are elected by their state’s legislative bodies. This method is only used in South Carolina and Virginia.
- In Virginia, a slate of candidates is brought to the General Assembly, and the candidate with the most votes is elected to the Court. If the VA General Assembly is not in session, then the Governor may appoint an interim replacement. This replacement will be voted on when the General Assembly returns to session.
- One unique characteristic of South Carolina’s selection method is the candidate must be pre-screened and recommended by a judicial nominating commission before being brought before the South Carolina General Assembly for a full vote. Typically, a slate is presented and the SC legislature will choose one candidate from the slate or reject the slate as a whole.
- Merit selection is also referred to as the “Missouri Plan” or assisted appointment. There are two stages in merit selection. First, a “Nominating Commission” screens applications and interviews prospective candidates. Members of these commissions may be elected by bar associations, governors, legislatures, other elected officials, or private citizens. Second, the Commission recommends a slate of preferred candidates, typically three to five, to the appointing body. The appointing body is usually the governor. After appointment of the individual, they are retained on the bench for subsequent terms by retention elections or review and renomination by the commission, governor, or legislature.
- 21 states and the District of Columbia use this selection model. The states that use this model are: Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Hawaii, Indiana, Iowa, Kansas, Maryland, Missouri, Nebraska, New York, Oklahoma, Rhode Island, South Dakota, Tennessee, Utah, Vermont, and Wyoming.
Commission; Executive Council; Governor’s Council
- Depending on the state, a Judicial Commission, Executive Council, or Governor’s Council may be a part of the merit selection process. These individuals may be selected by the governor, legislature, or bar associations to interview, vet, and recommend individuals to the governor to nominate.
- Gubernatorial appointment of judges is a process by which a state’s governor nominates individuals to the bench, and sometimes involves some form of confirmation to the bench by another body. This selection method is different than merit selection because the governor does not have to choose candidates from a recommended slate, though in some states like Maine the governor chooses to partner with a commission to identify and recommend candidates to the confirming body. Once the governor selects their nominee, a legislative or other government body will vote to confirm the nominee. 5 states use this method; those states are California, Maine, Massachusetts, New Jersey, and New Hampshire.
- California’s confirming body is called the Commission on Judicial Appointments. In Maine and New Jersey, the nominee must be confirmed by a majority vote of the state senate. Massachusetts’ nominees are confirmed by a majority vote of the Governor’s Council, also referred to as the Executive Council. New Hampshire nominees are confirmed by the Executive Council.
- Retention elections are uncontested elections held when a judge’s term is about to expire. The judge is brought to the public with a “yes” or “no” vote to keep the judge in their current position. A judge up for retention election must meet a certain threshold of “yes” votes to remain in office. These thresholds vary by state but are often 50 to 60 percent. If a justice loses a retention election, then a replacement justice will be chosen using the state’s interim appointment method.
- Currently, 11 states use retention elections for state supreme courts. Those states are: Alaska, Colorado, Illinois, Iowa, Maryland, Montana (unopposed races only), Nebraska, New Mexico, Pennsylvania, Utah, and Wyoming.
- Judges may also be retained by a nomination commission, governor’s reappointment, or the action of a state legislature. Sometimes a Judicial Performance Evaluation may be used to inform voters or the retaining body of a judge’s fitness for the bench. 7 other states have some other entity (like a governor or commission) that must renominate, revote, or reconfirm. These states include: Connecticut, Delaware, Hawaii, Maine, New Jersey, New York, and Vermont.
Interim Appointment Method
- When there is an unexpected vacancy on the court (a justice could lose a retention election, retire mid-term, or if a death occurs), then a replacement justice will be chosen by the state’s interim appointment method. There are several different interim appointment methods.
- Currently, 18 states use direct gubernatorial appointment (some of those states may require confirmation by a legislative body or a commission). States that use this method include: Alabama, Arkansas, California, Maine, Massachusetts, Michigan, Minnesota, Mississippi, Montana, New Jersey, North Carolina, Ohio, Oregon, Pennsylvania, Tennessee, Texas, Washington, and Wisconsin.
- 28 states fill a vacancy through gubernatorial appointment from a commission’s recommended slate. Those states are: Alaska, Arizona, Colorado, Connecticut, Delaware, Florida, Georgia, Hawaii, Idaho, Iowa, Indiana, Kansas, Kentucky, Maryland, Missouri, Nebraska, Nevada, New Hampshire, New Mexico, New York, North Dakota, Oklahoma, Rhode Island, South Dakota, Utah, Vermont, West Virginia, and Wyoming.
- South Carolina and Virginia fill vacancies by legislative election.
- Illinois Supreme Court Justices choose the replacement justice.
- Louisiana holds a special election.
- Not to be confused with a retention election, re-election occurs in an open contest (partisan or non-partisan). If an incumbent chooses to run for re-election, there still may be challengers.
- Historically, our courts have been composed of judges who worked as corporate lawyers or prosecutors while public interest lawyers, such as public defenders and civil rights attorneys, have not been as highly represented on the bench. Different types of lawyers bring different expertise and skills to the bench and can help to improve the quality of legal opinions and better understand and reflect the communities they serve.
- When judges are selected, in most states, they are chosen by statewide elections. Currently, only four states (Illinois, Kentucky, Louisiana, and Mississippi) elect supreme court justices by geographic districts or circuits.
- Gerrymandering is when politicians or a redistricting body like a citizens’ commission draws electoral districts that favor one political party, constituency group, or community over another. This could mean that certain groups of voters are compacted into as few districts as possible—which weakens their collective voting power across state—or when a group of voters is spread across multiple districts, so their power is diluted and weakened.
- Judicial gerrymandering occurs when the state legislature re-draws or attempts to draw judicial district lines in a state that originally utilizes statewide elections. Judicial gerrymandering often happens because the party in power wants to dilute the collective power of the other party’s voters. The most recent push for judicial gerrymandering occurred in 2021 in Pennsylvania.