New York's system of judicial elections was at issue recently. In 2008, a unanimous Supreme Court held in New York State Board of Elections v. Lopez Torres that New York's system of partisan primary elections of state supreme court judges (in New York, the Supreme Court is the lowest court) did not violate First Amendment associational rights. There, potential candidates who wanted to be on the ballot argued that they could not even be nominated because state parties controlled the nominations. They claimed that party control of the system violated their rights as voters and candidates. The Supreme Court disagreed. No rights were taken away from voters. They could still elect their judges and neither voters nor candidates have associational rights like political parties. Moreover, even if a potential candidate had a First Amendment right to run in a party primary — which he did not — the New York legislature made the reasonable decision to put certain limits on that right, i.e., the support of the party apparatus.
But the plaintiffs in Lopez Torres still wanted to be elected as judges. They did not attack the concept of judicial elections, but rather only political parties' control over nominations for those elections.
In order to challenge the election of judges as a violation of the federal constitution, we would need an injured party who was injured because of judicial elections and we would need a federal constitutional hook. As for an injured party, perhaps a party to a lawsuit whose victory was overturned after new justices were elected to the state supreme court would qualify. Or, perhaps a party to an ongoing lawsuit whose opponent was a major donor to a presiding judge in the case would also qualify. In Caperton v. A. T. Massey Coal Co., the Supreme Court said that elected judges must disqualify themselves from cases involving people who spent exceptionally large sums to put them on the bench. That case involved a $50 million lawsuit against a coal company whose chief executive spent over $3 million to put a judge on the West Virginia Supreme Court. The donor had a "disproportionate interest" in the case, thus requiring recusal.
The Court held that failure to recuse would violate the due process clause because of the probability of actual bias. That holding was vague and unclear, but it could be extended to suggest that accepting any donations from voters — all of whom are potential parties to lawsuits or potentially affected by the judges' decision — raises the real specter of bias. At a minimum, this line of argument suggests that judicial elections should be publicly funded.
Do you think this rationale can/should be extended to the institution of judicial elections? I have my doubts, but what do you think?