The Mind of the Judicial Voter

Abstract

Scholarship on judicial elections has all but neglected the primary actors in the drama: the voters themselves. All too frequently, the electorate’s role in choosing its judges is relegated to secondary status, and the specific question of how citizens decide to cast their vote in judicial elections is almost totally ignored. But the question is important, and the answer may be surprising. Drawing from decades of research by social scientists and case studies of recent high-salience judicial elections in Iowa and Wisconsin, this Article argues that judicial voters are motivated first and foremost by considerations of procedural fairness, not policy preferences or expected case outcomes. The Article then assesses the consequences of this finding for both contestable judicial elections and retention elections, concluding that retention elections are better able to provide voters with the information they value most.

Keywords: judges, judicial elections, retention elections, Iowa, Wisconsin, voters, procedural fairness, sociological legitimacy, rationally ignorant voters, popular constitutionalism, same-sex marriage

JEL Classification: K40