The Issue of Nonpartisan State Supreme Court Elections

Analysis of State Supreme Court Elections

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Written on March 17th, 2025

Written by Evan Randle

The judicial branch of the United States of America is widely understood to be the least partisan of the three branches of government. This is well-represented by the structure of the Federal Supreme Court, in which judges are neither elected nor privy to the same term limits demanding a run for re-election (which, some might argue, would encourage partisan politics). Indeed, judges in the United States have historically been observed as agents loyal to the law before any particular party. This is reflected by the plurality of states engaging in non-partisan judicial elections, according to Ballotpedia. Recent trends have shown, however, an increase in partisanship in State Supreme Court elections as the United States has become more divided. This shift is in no small part due to the Citizens United v. Federal Election Commission decision permitting corporations and unions to invest funding into the outcomes of elections, including state supreme court elections. The debate regarding the role of nonpartisan elective selection of state supreme court judges has similarly become more divided over the past decade. This debate centers around the ability of state supreme court elections to maintain—or, as some argue, increase—impartiality, with a potential resolution being found in lawyers and the bar itself.

Defenders of nonpartisan elective selection of state supreme court judges largely trust in states’ present framework to control polarization and promote independence, at least relative to partisan elections. In analyzing arguments calling for a sweeping reform of Kentucky’s state supreme court elections, lawyer Nolan Jackson admits polarization impedes the efficacy and success of said elections. Jackson also argues, however, that Kentucky’s constitutional provisions prevent the extremes of political polarization from rearing their head in state supreme court elections. These provisions include a prohibition of Kentucky Supreme Court justices from holding positions in partisan organizations, a vacancy-filling procedure involving members of both major parties, and a limit placed on how much funding a candidate can receive from a single source. Other scholars are less favorable of nonpartisan state supreme court elections, but prefer it to potential alternatives. Though Stanford professor Jane S. Schater acknowledges many flaws in current State Supreme Court election systems, she argues the development of ‘partisan’ and districted elections would “open the door to… partisan gerrymandering… and would eliminate the voters’ ability to speak on a statewide basis.” Some defenders of nonpartisan state supreme court elections could, therefore, be more accurately described as critics of substitute methods.

There do exist, however, proponents of such alternatives, many of whom sharply oppose the present nature of nonpartisan State Supreme Court elections. Legal scholar Alicia Bannon expresses heavy distaste in State Supreme Court elections, particularly after the Citizens United decision, claiming the shift “presents serious risks to the fairness and integrity of elected courts.” The risks Bannon outlines include the obfuscation of knowledge regarding special interest groups and elections, partisan pressure placed on independent judges and new difficulties in mitigating special interest influence in elections. Michigan State University professor Melinda Gann Hall also disagrees with the very notion of ‘nonpartisan’ state supreme court elections. Hall argues the current state of nonpartisan state supreme court elections actually draws more partisan advertising to states, particularly those negative in nature and/or funded by special interest groups. Donna Goldsmith, a member of the Alaska State Bar, reflects these shifts in her arguments that “with each new election cycle in Alaska, the scale and sophistication of [special interest] attacks has increased.” Though ambivalent, proponents of nonpartisan state supreme court elections acknowledged their ability to maintain some degree of nonpartisanship. The detractors above, meanwhile, insist this effort of non-partisanship has only produced counterintuitive results.

The most common throughline between the authors above has been some dissatisfaction with the current polarized state of Supreme Court elections (even if the degree of their distaste varies). What, then, are potential solutions to these widely accepted challenges to judicial neutrality outside of the United States’ climate, simply decreasing polarization? Goldsmith calls upon her fellow Alaskan lawyers to utilize the collective authority of the bar to expose and resist special interest funding of state supreme court elections. Indiana University Maurer School of Law alumnus Gustavo A. Jimenez, in discussing Wisconsin specifically, calls for stronger recusal rules—statutes preventing judges from presiding over cases with which they have a conflict of interest—regarding campaign contribution cases. Indeed, the Center for American Progress rated Wisconsin as one of the least effective states in preventing conflicts of interest within its supreme court. Stricter legislation could, therefore, limit the influence of foreign and typically partisan campaign funding. Though other proposed solutions for biased supreme court elections may exist, Goldsmith and Jimenez’s arguments find common ground through lawyers’ capacity to inspire change. If the judicial branch of the United States is intended to preserve the integrity of the law, then it is the responsibility of those who practice it—lawyers of various state bars—to call for change, such as through stronger recusal rules. Just as voters collectivize to express their beliefs, lawyers of the bar can band together and demand state judicial election reform.

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