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David Orr

David Orr

Posted: November 9, 2009 09:52 AM

It's Time to Get Judicial Retention Elections Off the Ballot in Illinois

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Now, I have always thought of myself as an advocate for democracy. As Cook County Clerk since 1991, I have spent 18 years pushing measures to improve access to voting. I fought for the Motor Voter law to simplify voter registration. I initiated Early Voting to make it more convenient for working people to cast ballots. And I pressed for open absentee voting, to remove outdated restrictions against voting by mail.

So, why am I against voting for judges? Our current system -- electing judges through retention contests -- undermines the quality of judges, in part because there are just too many on the ballot. Judicial retention races are a paradox, where too much democracy means no democracy at all.

Not a single judge has lost a retention election since 1990. That's 19 years -- longer than I've held this office as County Clerk.

Consider November of 2008, when most voters' eyes were on the presidential prize. On November 4, there were 84 contests on the ballot in Cook County. A full 70 contests, or 83% of the races, were judicial retention elections where the judges were up for a yea or nay vote -- to retain or fire. They were, essentially, running against themselves.

That's a lot of elections. To understand how many, consider this. That's more judges on the Cook County Ballot than Madison, Sangamon, Lake, Champaign, DuPage and St. Clair counties combined. More than twice as many. Nearly three times as many. Twenty-three times as many as Madison County.

Few people have the time to examine the judicial records of 70 candidates. It's hard enough to make decisions about presidents and senators. What kind of system is this? A broken one. It's the kind of system where the press devotes very few column inches to any individual judge's qualifications. It's the kind of system where most voters are ill-equipped to make a decision.

To nobody's surprise, nearly every Cook County voter who entered a polling place in November 2008 cast a ballot for president. Fewer than one percent did not. But in the average judicial retention race, only 65% of voters cast a ballot. That's only slightly more than the votes in uncontested races.

And who can blame voters for skipping those races out of fear of casting an unwise vote?

It's not only hard to know the right decision, it's hard to actually cast that vote. The judicial ballot is an unwieldy behemoth. Our paper ballots, consisting of two double-sided sheets, are the longest in the country. It takes flipping through eight pages on our touch screens to get through the retention ballot. That doesn't even count the review screens, and the reams of paper trails to provide the necessary security for the vote. Judicial retention ballots turn a simple act of citizenship, which should take two or three minutes, and turns it into an eight or nine minute affair. If you've ever wondered why there are long lines on Election Day, now you know.

The long ballot also exacts a literal financial cost. It takes more taxpayer dollars to program, print and process our ballots because of the judicial races.

Right now, to be retained, a sitting judge needs a yes from 60 percent of the people voting in their race. In a low turnout race, that's not hard for machine operatives to supply, if skeptical voters don't vote. So that's what we have now -- retention by machine. Qualifications just don't factor in to re-election. That is why we need a merit-based system.

There are a good dozen bar associations in Cook County who rate judges on their merits. But those recommendations have no legal power. They compile, print and promote their endorsements, but they simply don't get into everyone's hands. All 74 judges who sought reelection in Chicago and suburban Cook County in 2004 were retained whether or not bar associations found them wanting. Even two judges who were rated unqualified by a whopping twelve bar associations kept their posts.

It's time to give recommendations based on merit more power -- and to give them the power of law. Here's the idea. A panel of bar association representatives screens judges whose terms are up, and assesses their qualifications. The panel automatically retains those who meet standards. But the five or ten who fall short are placed on the retention ballot, and must win 60% of the vote to keep their jobs.

With only five or so races on the ballot instead of 70+, the news media and voters will be able to devote attention to the candidates. And the hope would be, they would reject the judges who don't deserve to keep their robes. For without the possibility of losing, we don't have democracy. What we have is something else, altogether. A respectable judiciary deserves better.

 

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