Brunner proposes judicial campaign reforms
February 3, 2022 (COLUMBUS) — Drawing on her experience as Ohio’s former chief elections officer and from studying past reform efforts, Ohio Supreme Court Justice Jennifer Brunner today proposed a package of initiatives to improve Ohio’s judicial elections.
Justice Brunner is running for Chief Justice in the November 8 election, and her judicial campaign reform package announced today is the latest in a series of policy proposals she began rolling out in September.
The plan is designed to improve faltering voter trust and confidence in Ohio’s courts by increasing voter participation in judicial elections and supporting an informed electorate. The package includes randomly rotating the order of races on the ballot (under current law judicial races come last), establishing a non-partisan commission for recommending candidates to the governor for appointment to fill judicial vacancies, and studying the inclusion of party labels on the ballot in all judicial races.
“Ohioans have time and again reaffirmed their belief that judges should be held accountable in regular, competitive elections, and I agree. As a former Secretary of State and someone with experience running for election at the trial, appellate and Supreme Court levels, voters seem to prefer judicial elections as the best way to select the people who will serve on the bench and for accountability,” Justice Brunner said. “I am proposing this package of reforms to make our system even stronger because there is evidence that we can do better.”
Brunner said she studied past judicial selection reform efforts in Ohio, from the debates surrounding the enactment of the 1968 Modern Courts Amendment, to statewide conferences convened by the late Chief Justice Thomas J. Moyer in 2003 and 2009, to efforts led by current Chief Justice Maureen O’Connor beginning in 2013.
“There are three main issues with our current system that have persisted throughout these discussions and they still persist today,” Justice Brunner said. “Voter confidence in our judicial system continues to falter, voter participation in judicial elections is lower than in executive and legislative races, and the public’s general level of awareness and understanding of the courts is not high.”
The 2021 State of the Courts poll by the National Center for State Courts found that measures of trust and confidence in the courts are the lowest they’ve been since NCSC began tracking confidence indicators. The NCSC survey found that 64% of respondents had “either a great deal of confidence or some confidence” in the state courts, down from 76% in 2018. “Unfortunately, this finding is consistent with nearly all other recent surveys,” Brunner said.
Studies have also consistently shown that fewer votes are cast in judicial races compared to executive and legislative races. For example, an examination of Ohio judicial races from 2002-2012 by Ohio Supreme Court staff found that under voting or voter fall-off in Ohio Supreme Court races was as high as 24 percent in some years. “In other words, in some years as many as one in four voters who took the time to vote in the election left the voting booth without casting a ballot for the races for Supreme Court justices,” Brunner said.
And perennially, the courts have been the least understood branch of government. One famous poll found that Americans knew the names of the Three Stooges and not of the three branches of government, it also found that most people could name two of Snow White’s seven dwarfs, but only 25 percent could name two U.S. Supreme Court justices.
As Chief Justice Maureen O’Connor wrote, “Judicial elections are the main mechanism for supporting positive perceptions of the courts by demonstrating accountability to the public. By strengthening judicial elections, we will support public trust and confidence in the judicial branch.”
Justice Brunner proposes the following reforms:
Randomizing the order of races so judicial races sometimes appear first on the ballot.
Brunner’s proposal would amend Ohio Revised Code 3505.03-04 to require the randomization of the ballot placement of all contests. Studies have shown that ballot order affects voter participation. Chief Justice O'Connor had suggested consideration of a similar proposal in 2013. She wrote at the time: “There appears to be little, if any, reason that non-judicial statewide elected contests have priority ballot placement over statewide judicial contests. This arbitrary ballot placement presupposes an existing higher importance to offices in the executive and legislative branches. Ballot placement can create voter perception that judicial contests are of lesser importance, and, consequently, acts as a disincentive to become more fully informed about judicial contests when preparing to vote.”
A study by two business professors at the University of California at Berkeley found that randomizing ballot among candidates on the election ballot can have a positive effect on voter-ballot response. The researchers examined multiple sets of election data and theorized that if elections officials randomized the order of contests on the ballot, it could reduce under voting and thereby increase participation overall.
Studying the effects of placing party affiliation on the general election ballot just for Supreme Court and Court of Appeals races.
The General Assembly and the Governor amended the law in 2021 so that for the first time in more than 100 years, party affiliation will appear on the ballot for candidates seeking election to the Ohio Supreme Court and the Ohio Court of Appeals. Since 1911, party affiliation has appeared on the ballot for judicial primaries but not in the general election. For regular appellate and local court races (county, common pleas and municipal), Ohio will for now remain the only state in the country where party affiliation is identified for voters in primaries but not the general election. Brunner said she will convene scholars, citizens and members of the legal community to study the issue and discuss whether the recent legislative changes requiring party affiliation for the high court and the appellate courts should apply to races at every level in Ohio.
“Whether a judge is a Democrat or a Republican should have no bearing on how the judge does her or his job,” Justice Brunner said. “The General Assembly and the Governor last year decided to include part affiliation on the general election ballot in the general election but for only about 10 percent of the elected judges in the state. We need to examine this issue and discern whether the change should apply to all 723 elected judges in the state.”
Establishment of a formal, non-partisan system for recommending nominees to the governor to fill judicial vacancies.
More than half of all judges in Ohio initially join the bench not through an election, but instead by being appointed by the sitting governor at the time who makes an appointment to fill a vacancy. Ohio is one of only 14 states without some type of formal system for making non-partisan recommendations for appointments to fill judicial vacancies.
“Most other states have a process in place to bring together citizens from diverse backgrounds to carefully consider candidates for the bench,” Brunner said. “It is time for Ohio’s judicial selection process to reflect that courts belong to the people, with judicial vacancies filled on the recommendation of everyday citizens who care deeply about the integrity of Ohio’s judicial system.”
A 2013 paper by Chief Justice Maureen O’Connor examined the issue. “Ohio has experimented with some form of a nominating commission with varying degrees of success in the past,” Chief Justice O’Connor wrote. “Cuyahoga County has had a very successful local program fulfilling this function. The American Bar Association has advocated this approach. If the goal is to create a panel to review the qualifications of individuals who stand to be appointed or elected to a judgeship, a judicial nomination commission would achieve that goal.”
Brunner said in her first 6 months in office she will convene stakeholders from the bench, the bar, academia and civic organizations to examine what has worked in other states and propose a formal structure for Ohio’s judicial nominating commission.
Expand support and participation for the statewide voter education program.
Research has shown that one of the main reasons voters choose not to participate in elections is the lack of information about the candidates. But the more citizens know about the courts the greater becomes their trust and confidence in the judicial system. In 2015, the Ohio Supreme Court, the Ohio State Bar Association, the Bliss Institute at the University of Akron, the Ohio News Media Association, and the Ohio Association of Broadcasters established Judicial Votes Count, a program to better educate Ohioans about judges and the Ohio court system and to increase voter participation in judicial elections. Judicial Votes Count provides judicial candidate information for primary and general elections. Visitors to the site were at an all-time high in last fall’s Ohio elections. Under Brunner’s plan, the Supreme Court will identify funding sources to expand knowledge of and access the site and increase participation.