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3 justices running for retention to state Supreme Court

Yes-or-no vote can award or deny another 10-year term

HARRISBURG — Pennsylvania voters will be asked on Nov. 4 whether to give three judges on the state Supreme Court more time on the bench.

These yes-or-no retention elections are a big deal, and if Republicans succeed in their stated goal of getting Pennsylvanians to vote “no,” they could set the stage for a total remaking of the court.

But the process is also very different from a traditional election and Republicans won’t automatically win a majority even if they get “no” votes.

All three justices up for retention — Christine Donohue, Kevin Dougherty and David Wecht — were elected as Democrats in 2015, and their party has held a majority on the state’s high court ever since. The seven-member court currently has five justices elected as Democrats and two as Republicans.

The Pennsylvania Bar Association, a nonpartisan trade group for lawyers that often evaluates judicial candidates’ qualifications, has recommended all three justices for new terms.

Two judges on lower appellate courts are also up for retention, both were also elected as Democrats. Voters will decide whether to give Alice Dubow another term on the Superior Court and whether Michael Wojcik should have another term on Commonwealth Court.

As Nov. 4 approaches, here’s what you should know about retention.

How does the judicial retention process work?

Judges on all three of Pennsylvania’s statewide appellate courts — Supreme, Superior, and Commonwealth Courts — are first elected in partisan, statewide elections and serve 10-year terms. The number of terms they can serve is unlimited, though they must retire at age 75.

But after these initial elections — in which judges campaign and run under the banner of a party — they get additional terms in retention elections, which are very different.

Retention elections are not partisan, so when a judge appears on the ballot to be retained, their name won’t have a party next to it. These elections also don’t involve an opposing candidate. Voters are simply asked to say “yes” or “no” to giving a judge another decade on the bench.

If the vote is yes, the judge stays on. If it is no, the governor can appoint a temporary replacement subject to the approval of the state Senate.

An election for a replacement to serve a full 10-year term is then held in the next odd year, which means that if a judge isn’t retained this year, voters won’t pick a long-term replacement until 2027. The judges appointed as replacements traditionally don’t stand for full-term elections, though nothing actually prevents them from doing so.

This system seems complicated. Is it common?

Kind of.

States use a wide range of techniques to pick judges, ranging from appointment to nonpartisan election.

Yes-or-no retention elections are the most common way for judges on states’ high courts to get additional terms once they are voted on the bench. However, Pennsylvania’s specific combination of electing judges to all its appellate courts in partisan, statewide elections and then retaining them in nonpartisan, unopposed elections is much less common.

Is a ‘no’ vote on retention the norm?

Nope. It’s extremely unusual.

Most judges up for retention win new terms by comfortable margins. Just one statewide judge has lost retention since 1968, when the state constitution was last updated — Supreme Court Justice Russell Nigro.

That happened in 2005, a politically tumultuous year for Pennsylvania.

Tim Potts, an activist who campaigned against Nigro’s retention, said it all started when the Supreme Court upheld the state’s 2004 slot machine legalization, which the legislature approved over the span of 48 hours by inserting the language into a semi-related bill.

After the state Supreme Court upheld the law, Potts said he and a grassroots network of good-government groups and activists began to organize against two retention elections that year, by “all just using our own individual networks.”

Then, lawmakers used a similar process to pass a sizable pay hike for the legislature, and executive and judicicial branches, which flared smoldering grassroots skepticism into a wildfire of opposition to the commonwealth’s political establishment. From there, Potts said, “It was easy.”

Katie Meyer of Spotlight PA contributed reporting for this story

BEFORE YOU GO… Spotlight PA is an independent, nonpartisan, and nonprofit newsroom producing investigative and public-service journalism that holds power to account and drives positive change in Pennsylvania. Sign up for our free newsletters.

If you learned something from this article, pay it forward and contribute to Spotlight PA at spotlightpa.org/donate. Spotlight PA is funded by foundations and readers like you who are committed to accountability journalism that gets results.

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