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Litigation Journal

Litigation Journal | Summer 2023: Legitimacy

"Field of Dreams" for Voters in Arizona Merit Retention Elections: Justice O'Connor Helped to Build It

Dinita L. James

Summary

  • Former Supreme Court Justice Sandra Day O’Connor was an ardent proponent of merit selection of judges.
  • Arizona now holds periodic retention elections, in which voters get to decide whether to keep the appointed judges.
  • Maricopa voters have shown that if you build them a fair and independent system for judicial retention elections, they will come to the polls and use it.
"Field of Dreams" for Voters in Arizona Merit Retention Elections: Justice O'Connor Helped to Build It
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If you build it, [they] will come.

That alteration of the line from the 1989 film Field of Dreams popped into my head as I studied the results of the 2022 merit retention election for superior court judges in Maricopa County, Arizona. The movie line that emanates from the Iowa cornfield is “If you build it, he will come.” The “he” is Shoeless Joe Jackson, the hero of the father of Kevin Costner’s character, and Shoeless Joe does indeed join other spirits to play on the diamond Costner constructs amid the stalks.

In my version, “they” are Maricopa County voters, who appear to have used the resource Arizona created to inform their vote on whether to retain appointed judges on the bench.

Retired Supreme Court Justice Sandra Day O’Connor was an ardent proponent of merit selection of judges. In a 2008 essay she coauthored for the 50th anniversary of the Arizona Law Review, Justice O’Connor stated, “Judicial selection methods and the practices surrounding them have a great impact on the accountability and independence of judges, as well as on the public perceptions of the judiciary.” In 1971, as a state senator, she was a sponsor of the first Arizona bill seeking to create a merit selection system for judges. That bill did not make it out of committee, leaving in place the existing system of partisan judicial elections. A similar 1973 bill, also with O’Connor as a cosponsor, made it out of the Senate but died in the House. Arizona finally adopted a merit selection plan for appellate judges and for trial judges in the larger counties through a voter-initiated constitutional amendment in 1974. One of the first judges appointed to the Arizona Court of Appeals through the new process was O’Connor, who served there until her confirmation to the Supreme Court in 1981.

Arizona now holds periodic retention elections, in which voters get to decide whether to keep the appointed judges. Arizona voters tweaked the process again in 1992 with a constitutional amendment to implement a comprehensive system for review of judges. A commission of lawyers, judges, and other citizens appointed by the Arizona Supreme Court conducts performance reviews based on survey data and accountability meetings with individual judges. All participants in the process—litigants, attorneys, witnesses, jurors, courtroom administrative staff—are surveyed, providing a wide cross-section of perspectives on judicial performance. The commission publishes a report in preparation for each retention election, including the results of commission members’ votes on whether each judge meets standards for legal ability, integrity, communication skills, judicial temperament, and administrative performance.

Prior to the 2022 election, Arizona voters had removed only three judges in retention elections. Two were removed in 1978, the first year retention was on the ballot. Over the years, the commission has given overall thumbs-down recommendations or multiple negative ratings on specific factors, but those judges still survived their retention elections.

Something clicked, however, in Maricopa County in 2022. A majority of the commission voted against one judge up for retention, while two other judges received overall negative ratings from multiple commissioners. These three then got the boot from voters.

What may have clicked was the commission’s own publicity campaign, styled “Finish the Ballot!” The 2022 Maricopa County ballot was indeed long. You may have heard about the technical glitch at some polling places on Election Day, ultimately attributed in part to the two-sided ballot being 20 inches long!

The superior court races are at the end of this endless ballot, and a sizable chunk of voters never get there. Out of more than 1.5 million votes cast, the undervote for the superior court races ranged between about 600,000 and 690,000. Still, that means nearly two-thirds of voters made it to the judicial retention races.

The judge with the negative rating from a majority of commissioners lost by the largest margin, 63 percent to 37 percent. He also had the lowest undervote of all the superior court races on the Maricopa ballot, meaning some voters chose to mark their ballots just against retaining him, while not bothering to vote in any of the other judicial retention races. The judge with negative ratings from nine commissioners lost by a 60–40 margin, while the judge with two negative ratings lost by a narrower margin, 52–48.

Based on these results, I’m willing to find causation, not just correlation. I have no doubt that Maricopa voters took the commission ratings into account in 2022. Maricopa voters have shown that if you build them a fair and independent system to inform their vote in judicial retention elections, they will come to the polls and use it. The Field of Dreams for voters in judicial retention elections that Justice O’Connor and her fellow reformers imagined a half-century ago is emerging in the Desert Southwest.