The pros and cons of electing judges come down to a single tradeoff: elections make judges answerable to the public that lives under their rulings, but they also expose the bench to campaign money, political pressure, and measurable shifts in how judges behave as election day approaches. About 87% of the roughly 10,000 state trial and appellate judges in the United States face voters at some point in their careers, so this tradeoff is not a thought experiment—it defines how most American judges reach and keep their seats.1Center for Effective Government. Elected vs. Appointed Judges
The Case For Electing Judges
The core argument is accountability. Judges exercise government power that shapes criminal sentences, custody disputes, property rights, and constitutional questions. If that power is going to be wielded by someone, the people affected should have a say in who wields it. No nominating commission, governor, or legislative confirmation vote replicates the direct check of a name on a ballot.
Retention elections show the mechanism at its cleanest. A sitting judge runs unopposed, and voters answer yes or no on whether to keep them. Most states require a simple majority; New Mexico sets the bar at 57%.2Ballotpedia. Retention Election A judge whose record draws sustained public criticism can be removed without waiting for a disciplinary proceeding that may never come.
Elections also preserve a democratic check when judges first arrive by appointment. When a seat opens between elections, 29 states fill supreme court vacancies through a commission-assisted gubernatorial appointment and 17 let the governor appoint directly.3Ballotpedia. How Vacancies Are Filled in State Supreme Courts In nearly every case the appointee then stands for election at the next general cycle, so even judges who did not win their seats originally eventually face voters.
The Case Against Electing Judges
Voters Often Do Not Know The Candidates
Accountability means something only when voters have the information to hold anyone accountable. Judicial races sit at the bottom of long ballots, and many voters skip them entirely, a drop political scientists call ballot roll-off. Those who do vote often fall back on whatever shortcut is available: party labels in partisan races, name recognition, or cues from a candidate’s name. Bar association ratings and judicial performance evaluations exist in many jurisdictions, but few voters seek them out. Nonpartisan elections, meant to focus attention on qualifications, can make the problem worse by stripping away the one informational cue most voters can read.
Campaign Money Follows Cases To The Courthouse
Judicial campaigns have become expensive in ways that would have been unthinkable a generation ago. In the 2023–24 cycle, candidates, parties, and interest groups spent at least $157.3 million on state supreme court races, 35% more than any prior cycle. A single Wisconsin Supreme Court seat drew over $100 million in 2025. In 2023–24, outside interest groups spent $85 million on judicial races, more than the $70 million spent by the candidates’ own campaigns.4Brennan Center for Justice. The Politics of Judicial Elections 2023-24 Much of that money comes from organizations with direct stakes in the cases those courts will decide.
The constitutional floor on this problem was set in Caperton v. A.T. Massey Coal Co. (2009). The CEO of a coal company facing a $50 million judgment spent roughly $3 million supporting a candidate for the West Virginia Supreme Court, more than all of that candidate’s other supporters combined and three times what the candidate’s own committee spent. After winning the seat, the new justice cast the deciding vote to overturn the judgment. The U.S. Supreme Court held that the size and disproportionate influence of the spending created an unconstitutional risk of bias and required recusal under the Due Process Clause.5Justia. Caperton v. A. T. Massey Coal Co. Caperton set no bright-line dollar threshold, though. The standard is fact-intensive, which leaves most large contributions below the constitutional recusal trigger and the everyday influence of campaign money largely unregulated by the Constitution.
Judges Rule Differently When Elections Are Near
The most concrete evidence against elections comes from criminal sentencing. Economists Carlos Berdejó and Noam Yuchtman found that elected judges imposed sentences roughly 10% longer in the final months before re-election than at the start of their terms, and deviated from sentencing guidelines about 50% more often as election day approached.6UC Berkeley Haas School of Business. Criminal Punishment and Politics: Elected Judges Take Tougher Stance Prior to Elections The pattern disappeared for judges not seeking re-election, which rules out a calendar coincidence. Sentences spiked before election day, dropped when the new term began, then climbed again as the next election approached.
A defendant sentenced in October of an election year may receive a meaningfully longer prison term than someone sentenced for the same crime in January. The pressure extends past sentencing to any ruling that could become a 30-second attack ad: granting a controversial motion, ruling for an unpopular defendant, striking down a popular law. A judge who fears that a legally correct decision will end their career is a judge whose independence has already been compromised.
What Candidates Can And Cannot Say
Judicial elections run under First Amendment rules that shape what voters actually hear. In Republican Party of Minnesota v. White (2002), the Supreme Court struck down a state rule barring judicial candidates from announcing their views on disputed legal or political issues, holding that a state cannot hold elections while forbidding candidates from discussing what the elections are about.7Justia. Republican Party of Minnesota v. White
Thirteen years later, in Williams-Yulee v. Florida Bar (2015), the Court upheld a rule prohibiting judicial candidates from personally soliciting campaign donations, writing that “Judges are not politicians, even when they come to the bench by way of the ballot.”8Justia. Williams-Yulee v. Florida Bar Campaign committees handle the asking instead, which adds a layer of separation without severing the connection between money and the bench.
How The Format Changes The Tradeoff
Thirty-nine states use some form of election for at least part of their court system, and the pros and cons shift with the format.9Brennan Center for Justice. Judicial Selection: Significant Figures Partisan elections put a party label next to each name, giving voters an immediate signal about judicial philosophy at the cost of looking like legislative politics.10Ballotpedia. Partisan Election of Judges Nonpartisan elections strip the label away, which pushes voters toward evaluating qualifications but can also leave them with no cue at all.11Ballotpedia. Nonpartisan Election of Judges Retention elections avoid head-to-head campaigns entirely and function as periodic yes-or-no referendums on sitting judges.
Merit Selection As A Middle Path
Dissatisfaction with both pure elections and pure gubernatorial appointment produced the Missouri Plan, first adopted in 1940 and now used in some form by 21 states and the District of Columbia for at least part of their judiciary.12Ballotpedia. Assisted Appointment of State Court Judges A nonpartisan nominating commission of attorneys and non-attorneys reviews applicants and sends the governor a short list, typically at least three names, screened for legal knowledge, experience, integrity, and temperament.13IAALS. Judicial Nominating Commissions The governor appoints from the list, and after an initial period, often two years, the new judge faces a retention election.14IAALS. Retention Elections
Supporters say this captures the best of each system: professional screening blocks unqualified candidates, the governor’s role keeps a democratic element, and retention elections preserve ongoing accountability. Critics say nominating commissions can become insider clubs dominated by the organized bar, substituting one kind of political influence for another that is harder to see. The diversity record is mixed. One study of state appellate judges found that merit-selected judges were 31% less likely to be women than judges chosen by other methods, with no meaningful difference by race. In nonpartisan election states, over 18% of judges who first reached the bench through interim appointment were nonwhite, compared with just 5% of those who won contested elections.15Judicature. Picking Judges: How Judicial Selection Methods Affect Diversity in State Appellate Courts No selection method has a clean record, which is part of why the underlying debate remains unsettled.