Over a million Oklahomans voted in the recent November 3rd election. For most, the presidential race between Joe Biden and Donald Trump is what drove them to the polls. However, some were likely confused when they reached the bottom portion of their ballot marked “Judicial Retention Elections.” What are judicial retention elections? Every two years, certain judges are placed on the ballot for a simple yes/no retention vote. These elections stem from Oklahoma’s judicial selection method, and ask voters whether they want to keep, or retain, certain judges. Elections are staggered so judges only face retention every six years.
Many claim that the merit selection method is a more sophisticated, apolitical judicial selection method than the federal model or the partisan election model, but in reality it is much worse than either of the two. In essence, the retention vote was a patronizing attempt to make “merit” selection more palatable to voters back in the 1960s. Unfortunately, due to a bribery scandal that involved a supreme court justice, it worked. Oklahomans voted to institute the so-called merit selection model. Predictably, not a single judge has been voted out via retention election in the fifty-plus years since they were instituted.
I would wager that the majority of Oklahoma voters, including me, a relatively informed voter, know next to nothing about the judges that come up for retention votes. That is not surprising, considering most people do not have the time to research and evaluate the legal philosophy and judicial track record of every judge. Thus, a look at election results from the past few elections tell a simple story: a majority simply vote yes on all of the judges, a decent minority vote no on all of them, while only a small fraction do research and make informed votes. To be clear, this is not a blog lambasting Oklahomans for being uninformed. Many people I know personally vote “No” on all retention elections no matter who it is. I used to vote “No” by default as well. The problem is, it doesn’t matter how informed you are. The judicial selection system we use is extremely flawed, thus rendering your vote meaningless.
Consider the following:
Option one: You vote “Yes” (as do a majority of Oklahomans) to retain all the judges (or justices) on the ballot. You maintain the status quo and have voted to validate the work of the Judicial Nominating Commission.
Option two: You vote “No” on all the judges/justices. If the majority of Oklahomans follow suit, what have you actually accomplished? The same institution (JNC) that gave you the lineup of presumably bad judges that you just voted out will simply reconvene, behind closed doors, and pick new ones. And there is not a single institutional check to ensure that the commissioners choose the most qualified candidates.
Either way you vote, the JNC retains its grip on judicial selection in our state. To add insult to injury, the JNC is effectively controlled by lawyers from the Oklahoma Bar Association (OBA). The only interests truly represented on the court are those of the OBA. In simpler terms, lawyers effectively dictate who sits on the court regardless of retention election outcomes. The 1889 Institute has published various pieces regarding the JNC, the OBA, and the Supreme Court, but one point bears emphasizing again: aside from the useless and patronizing retention elections, the people of the state of Oklahoma have no say in who sits on the higher courts, while lawyers from the OBA have the ultimate say.
The only way to fix this issue is to wrest power away from the OBA by fundamentally reforming our judicial selection method. Voting in retention elections certainly won’t change anything.
The opinions expressed in this blog are those of the author, and do not necessarily reflect the official position of 1889 Institute.