With another general election season approaching, New Mexico voters will need to consider a lengthy ballot to determine their judicial candidates. Supporters of democracy risk weakening their historically hard-fought voice in elections if they neglect to vote for the judges.
The winner of these races will wear the black robe and sit in judgment in all manner of civil, family, children’s and criminal court cases. The judiciary – as is true for the executive and legislative branches – depends on people making informed decisions and electing the best possible candidates. The right to vote for judges, or judicial democracy, enhances popular confidence in our courts and the legitimacy of our governmental system.
Americans did not always enjoy the right to vote for judges; government leaders previously appointed judges, but judicial democracy is now firmly entrenched in most states. Historically, elections for judges promised to address a power imbalance among the branches that tilted toward legislatures. Changing who selects judges to the people supported democratic trends in the early 1800s. The ability to vote for judges promoted public accountability of jurists.
To appreciate the importance of judicial elections we need only consider a time when government leaders appointed judges. In the mid-19th century, American states were overrun by corrupt legislators and governors who regularly abused the appointment power at the behest of wealthy benefactors. The powerful elite class wielded substantial influence over these legislators to appoint judges who could be expected to favor private industrial interests. This diminished judicial independence – the cornerstone of our justice system.
In amending their constitutions through the 1850s, one state after another opted to reject appointments in favor of judicial democracy. In 1911, as drafters of New Mexico’s Constitution were completing their work, they followed this trend and granted the right to vote for judges. This absolute right continued for almost 77 years, until 1988, before New Mexico voters approved a constitutional amendment for selecting judges and justices. They created a hybrid selection process that empowered the N.M. Judicial Nominating Selection Commission to guide the governor in choosing temporary appointees. These judicial appointees must face voters in the next general election to determine who serves out the remainder of the unexpired term.
Voters hold in their hands the power to decide who sits on the bench. This cannot be overstated. The people’s collective influence remains illusory unless voters thoughtfully and independently consider their choices. In contested elections, voters may consider a candidate’s reputation, experience in law, affiliations and other factors in deciding who should administer justice in our courts. Sometimes people will vote to continue the governor’s temporary appointee in office; sometimes they pick the challenger. The fact voters have, at times, elected challengers over appointees demonstrates people maintain a healthy degree of independence from the influences of government leaders. Such voter autonomy serves as a good barometer for the health of our democracy.
After the elected judge completes a first term, the N.M. Constitution requires him or her to face voter approval in nonpartisan, retention elections. These judges or justices appear on the retention section of the general election ballot, without an opponent listed next to their name. Voters may consider the judge’s record, reputation, personal experience with the judge, and other sources to inform their decision. While some voters may call an attorney or seek advice from a judge, not all people have this opportunity.
Nevertheless, voters may turn to the NM Judicial Performance Evaluation Commission (JPEC), which publishes useful information and recommendations on each judge or justice – due to appear on JPEC’s website, nmjpec.org/en, on Sept. 11. Voters may also use the League of Women Voters of New Mexico’s Voter Guide, lwvnm.org/information.html, as an additional source. Equipped with this information, voters can make intelligent decisions on whether to retain a sitting judge. Each retention candidate must receive at least 57% “Yes” votes to stay in office.
Democracy places a heavy burden on the shoulders of citizens. If we are to preserve a vibrant and healthy democracy – one that protects individual rights and avoids governmental abuses – voters need to meet the challenge. We must educate ourselves to ensure our vote is informed and meaningful. To the extent we embrace this commitment of informed voting, we more fully participate in the essence of democracy.