Oklahoma Judicial elections have long been afterthoughts. Oklahoma has a two tiered system for selecting judges. Voters elect local trial judges directly through a non-partisan Top Two primary. Every four years local trial judges must run for re-election. Statewide appellate judges are nominated through a nonpartisan judicial nominating commission. The commission is made up of fifteen members, six lawyers and nine non lawyers. The commission sends a list of candidates to the governor, who then appoints those individuals she thinks best to serve. Appellate judges, whether recently appointed or not, then face voters on a nonpartisan retention ballot every four years. Voters have two options: they can either keep the judge; or remove the judge, causing the nominating process to begin anew to fill the vacancy. Prior to this system judges ran in partisan races and were forced to commit a great deal of time to campaigning and raising funds. Since the retention system has been in place in Oklahoma, no judge has ever been removed through a vote of the people.
Nationally, there have been judges defeated in retention elections–notably in Iowa and Tennessee . Those campaigns gained public attention over same sex marriage in Iowa and the death penalty in Tennessee. However the reason for the heighted public campaign in the Sooner State was of local origin. The state’s largest newspaper, The Oklahoman, reported that the State Chamber’s new rating system was the principle reason for the heightened attention to the judicial ballot. The Chamber claimed the ratings were designed to give voters information to hold judges accountable for their decisions. The state’s leading liberal weekly, The Observer, noted “Business owner are liable if they cause injury or harm. They are liable if they break the law. The judges who rule against a business owner aren’t anti-business, they are pro-law.” This year, it was not just the State Chamber becoming more involved, but also Yes for Fair and Impartial Judges, and the Oklahoma Bar Association, all in attempting to provide information to voters on this down-ballot race.
Oklahoma has had a long history of races with little in the way of public campaigning. This year a campaign advocating for the retention of all judges formed and ran television commercials across Oklahoma. I had the opportunity to speak with Matt Latham, Treasurer of Yes for Fair and Impartial Judges. I asked Latham why in 2012 Oklahomans felt the need to proactively advocate for retention. Latham pointed to an effort in Oklahoma to politicize the courts in recent years. Latham characterized the efforts of his group merely being more proactive on the views held by Oklahomans, as people in general desire courts to be fair and impartial.
In 2012 the State Chamber of Oklahoma released ratings of all appellate judges in Oklahoma. Latham said his group wanted to fill the void in information about judicial races. Newspaper accounts only give readers biographical information with no additional information. The Chamber’s rating system only listed case names and assigned positive or negative ratings without further explanation. Latham noted, “There was clearly misinformation being spread including the extremely flawed and intentionally misleading rating system on liability.” His group wanted to put out information on why the judges were fair and impartial, such as pointing to how the judges used the Oklahoma Constitution and Oklahoma Statutes when it came to deciding cases before them. Since the decisions of cases are applied based on the facts of each case it is hard to communicate how judges used the law to guide decisions. This message was best communicated by lawyers in their communities on a personal basis. Latham stressed that judges themselves are limited by judicial codes so they cannot form political committees or actively campaign. This is why efforts of groups like Yes for Fair and Impartial Judges is important in giving voters a complete picture of the role of judges. Latham noted that his group decided to use television commercials because, “television is an efficient and effective medium for communicating information. It also allowed us to speak to a large audience within the state in a short amount of time.” In a race that didn’t catch much attention, the use of television ads clearly sent a message that this election was important.
The 2012 results were similar to those of both 2008 and 2010 ranging in the mid to upper sixties for retaining judges. When asked if the results meant that proactive campaigns would be necessary, Latham said, “Oklahomans will always do our best to defend our right to a fair and impartial court.”
It seems likely that some groups will continue to try to politicize the courts, while others like Yes for Fair and Impartial Judges will continue to advocate for retention of justices.