Across the nation, states have different ways of selecting the justices who serve on their state court of last resort. Most states have variations of elections for selecting those jurists. In other words, citizens get to have a say at the ballot box in who sits on their state supreme court.
Elections serve as an important accountability feature in any government. Voters, through elections, have the ability to keep good men and women in office and get rid of those who have strayed from the will of the people.
This same philosophy applies to the judiciary when judges are elected. Whether or not judges should be elected and thus accountable to the voters is a matter of heated debate between political scientists, including myself, and legal scholars. However, for my purposes here, I will set aside that normative debate and begin from the assumption that judges are elected, as they are in many places, including the focal point of this piece: Ohio.
Prior to 2021, Ohio used a questionable method of selecting its supreme court justices. Similar to the judicial selection system employed by the state’s biggest rival, Michigan, the Buckeye State held partisan primaries for justices, and the winners of those partisan primaries competed in non-partisan general elections.
In other words, knowledgeable voters in Ohio had to do very little work to find out with which party a general election judicial candidate was affiliated. The judicial candidate’s party affiliation had been on the primary ballot. It was referred to in nearly every media story about judicial elections. Partisan interest groups distributed literature in support of their preferred candidate. And political parties could endorse judicial candidates. The candidates’ party affiliation was available almost everywhere—everywhere except where it mattered: On the ballot.
Decades of political science research demonstrates that non-partisan elections are detrimental to turnout. In elections where the candidates’ party affiliation is readily available on the ballot, turnout is significantly higher than in elections where party affiliations are not on the ballot.
And it’s easy to understand why turnout varies in partisan and non-partisan elections. Voters have a lot going on. They have jobs to work, kids to feed, community activities to attend. Precious few voters have the time to sit down and do extensive research on the candidates they will find on their ballot. What the voter does know, however, is their own general worldview. And they know which party generally best represents that worldview. It’s why selecting a president or governor is relatively easy for most voters. The party label serves as a clue for them—a heuristic in social-science speak—about where a candidate stands on the issues and how well the candidate will represent the voter’s policy preferences.
When that label is not available to voters, rather than making a mistake and unintentionally voting for a candidate that may be at odds with their preferences, many simply don’t vote.
In judicial elections, the research demonstrates that roll-off, the difference in the number of votes cast for the top office on the ballot and any lower race, is between 10 and 17 percentage points in non-partisan elections. Put another way, if the top office on a ballot had 100 ballots cast, a non-partisan judicial race would have only 83 ballots cast.
Against that backdrop, in 2021, Ohio State Representatives Brian Stewart and DJ Swearingen and Senators Teresa Gavrone and Jerry Cirino introduced legislation in their respective chambers of the Ohio Legislature to change the election system for Ohio’s Supreme Court justices from non-partisan to partisan.
Based on the political science research and my own analysis of the 2020 turnout data, I testified in House and Senate committees that “If [Ohio’s] supreme court elections [in 2020] had been partisan rather than non-partisan, we could have expected between 756,000 and 778,000 additional votes on the supreme court races.”
Other political scientists, both from in Ohio and from other states, who have made careers of studying judicial elections also submitted written testimony in support of the bills. Unsurprisingly, the legal community opposed it, as did every Democrat in the legislature. Nevertheless, the bill passed both chambers and was signed by Governor Mike DeWine in the summer of 2021.
During the 2022 midterm election, Ohio had three supreme court races on the ballot, the first under the new partisan system. We now have an opportunity to evaluate the veracity of my claims to the committees. Let’s review the figure below.
In 2018, the last time Ohioans voted for governor, two supreme court races appeared on the ballot. Voters cast 4.43 million ballots in the governor’s race. In one supreme court contest, voters cast only 3.56 million ballots (roll-off = 19.7%); in the other, voters cast 3.52 million votes (roll-off = 20.5%). The average roll-off between the governor’s race at the top of the ballot and the supreme court races in 2018 was 20.1 percent.
Two years later, the presidential race received 5.92 million ballots, while the two supreme court races garnered only 4.97 million and 4.87 million ballots, a roll-off of 16.1 percent and 17.8 percent, respectively. Average roll-off was 16.95 percent.
This year, with the governor’s race again at the top of the ballot, unofficial turnout (as of 14 November) was as follows:
- Governor’s race: 4,025,717 ballots
- Supreme Court race 1: 4,015,083 ballots
- Supreme Court race 2: 3,996,441 ballots
- Supreme Court race 3: 3,996,805 ballots
You can see why precision here is more important than in previous years. From the top of the ballot, roll-off was 10,634 votes (0.003%), 29,276 (0.0073%), and 28,912 (0.0071%). The average roll-off was barely one-half of one percent (0.006).
It appears that, if anything, I underestimated the power of the party heuristic for judicial elections in Ohio. Applying the average roll-off from 2022 to the 2020 election, turnout on the supreme court races likely would have been between 922,000 and 1.02 million voters higher, rather than the 756,000 and 778,000 I estimated in my testimony.
Despite what partisan activists say, making judicial elections partisan is not a power-grab. In fact, the exact opposite is true. When elections are non-partisan, it allows elites to suppress voter turnout and to fleece a relatively few voters into voting against their preferences.
The Ohio judicial elections some activists point to—in 2018 and 2020—are case-in-point. In elections where voters overwhelmingly chose Republicans for statewide offices, Democrats won three out of four state supreme court races. That seems highly improbable in today’s political climate, and the 2022 election results demonstrate just how improbable it was: Republicans in Ohio won every single statewide race.
So, don’t be fooled by partisans who claim this reform is indicative of nefarious acts. The goal of partisan elections is to inform voters and increase turnout. The results from Ohio’s Supreme Court elections show overwhelmingly that goal has been accomplished. Now, it’s time to reform the lower court races as well.