Ruling in Case Concerning Judicial Retention or Re-Election

In March, we wrote about a complaint filed with the State Board of Elections, concerning three judges in southern Illinois’ 20th judicial circuit—Chief Judge John Baricevic and Circuit Judges Robert Haid and Robert LeChien—who resigned in August and announced their intentions to run in the general election for their vacancies, rather than in retention elections for their seats. The judges faced no opponents in the primary, while two of them face opponents in the general election. The general election requires a simple majority of votes for a win, but each judge would have needed a 60% yes vote of ballots cast on their contest to win retention.

A circuit clerk candidate in the race filed an objection to the nomination with the State Board of Elections which was unable to reach a decision on the propriety of the maneuver and declined to intervene. The Sangamon County circuit court then reviewed and affirmed the Board of Elections decision, allowing the judges to remain on the general election ballot.

Expedited appellate review of the decision concluded last week in the Fourth District of the Illinois Appellate Court. The issue for the court was whether article VI, section 12 of the Illinois Constitution of 1970 (Ill. Const. 1970, art. VI, § 12) provides a sitting judge the option of seeking re-election through the general election, rather than retention through the retention ballot. Both courts concluded that the constitution did not prohibit the judges from “seeking to remain in office by retention of through other constitutionally approved method, namely, election or appointment” (2016 IL App (4th) 160160 p.4)

The court added: “While legitimate public policy arguments may exist for limited elected judges to the retention process only, the 1970 Constitution was not written with such a limitation and we are bound to uphold the constitution as written.” (p.11) While the court’s decision seems reasonable, we are concerned about the implications for future judicial elections.

At Chicago Appleseed, we believe the public policy arguments are important to maintain public faith in the judiciary. While judges initially seek election in partisan primaries, they seek retention on a ballot with no party affiliation. Resigning in order to run for your own vacancy, rather than standing for retention, re-injects party alliances to the judicial ballot.

Additionally, the retention races call for a higher vote of confidence from the voters (60% rather than 51% in favor of the candidate). Retention candidates have no opponent but run on their own performance. Allowing veteran judges to run as new candidates obscures information about the judicial candidate, creating the potential for voter confusion.

Finally, where an explicit mechanism for retaining your position as a judge exists—i.e., the retention election system—it feels manipulative for sitting judges to bypass the system, despite the arguments that it is not prohibited. Judicial authority requires the confidence of the public if our courts are to be effective.

There is no word yet whether the decision will be appealed further. It may be time for the legislature to act to restore predictability to the retention process.