34 of the 39 states that elect judges received failing grades
Washington, D.C. — A new report released today by the Center for American Progress finds that state judicial ethics rules are failing to address the flood of campaign cash from lawyers and litigants. The report ranks the 39 states that elect their judges by how they address the conflicts of interest inherent in multimillion-dollar judicial elections. The results were discouraging: Only five states received passing grades, and none scored higher than a C.
The vast majority of states scored a D or an F because they have failed to update their ethics rules in the era of big-money judicial elections. Only a few states have ethics rules that require recusal for cases involving campaign donors, and most states leave recusal decisions in the hands of the judges with the alleged conflicts of interest.
The United States is the only country in the world in which judicial candidates need to raise millions of dollars to get elected and stay on the bench. After the Supreme Court’s decision in Citizens United, the amount of campaign cash in judicial elections rose sharply. Judicial candidates spent a record $33.7 million on ads in the 2011–2012 election cycle. Most of this campaign cash comes from lawyers and businesses with a financial interest in the rulings of the judges they help elect. This has inevitably led to glaring conflicts of interest.
To test whether the states that elect judges have addressed conflicts of interest that come with multimillion-dollar judicial elections, CAP looked at whether:
Campaign cash is listed as a basis for recusal
Independent spending is listed as a basis for recusal
The judge alone makes the initial decision to recuse
The judge is required to respond on the record
The judge is required to disclose campaign contributions on the record
The judge must recuse whenever his or her “impartiality might reasonably be questioned”
Parties may agree to waive recusal
The state allows peremptory recusal
Based on these measures, California received the highest grade. Georgia and Michigan also earned C’s, thanks to the recent implementation of reforms to recusal policies in the states. Utah and Washington each scored 65 points. Alabama—a pioneer of big-money elections in the 1990s—could have earned a passing grade, but it failed because Gov. Robert Bentley (R) signed a repeal of the state’s mandatory recusal rule on April 10. This legislation repealed a rule that required high court justices to recuse themselves in cases involving campaign donors who gave more than $4,000 and replaced it with a rule that will likely only apply to those who give tens of thousands of dollars to state supreme court justices’ campaigns.
The analysis takes an in-depth look at five of the states that received failing grades: Wisconsin, Ohio, North Carolina, Alabama, and Nevada.
“The results of this study should alarm anyone who cares about impartial justice,” said Billy Corriher, author of the report and Director of Research for Legal Progress at CAP. “Given the flood of campaign cash in recent decades, justices in state supreme courts across the country are hearing more and more cases that involve conflicts of interest because campaign contributors are among the litigants. If we continue to elect our judges, we must work to ensure that campaign cash does not sway judges’ decisions.”