Voters weighed in on court matters on Election Day 2014 as three states asked their electorates to approve or reject measures impacting the courts. Whether altering the judicial selection method in Tennessee or approving increased transparency in Hawaii, voters shaped policies that would govern the fair and impartial operation of their state court systems.
In the November general election, voters approved an amendment in Tennessee that replaced the constitutional requirement that judges “shall be elected” (a requirement that had led to unsuccessful legal challenges of the state’s merit selection system, which provided for gubernatorial appointment pursuant to recommendations by a nominating commission, followed by retention elections) with a “modified federal” system for selecting justices. Over $1.7 million was raised in support of the measure—with nearly 75 percent of funds coming from the Tennessee Business Partnership—while just under $50,000 was raised in opposition, almost all of which was provided by two individuals. Under the new system, the governor appoints all appellate judges, subject to confirmation by the legislature. Then, Tennesseans vote to retain or replace these newly appointed judges in subsequent retention elections. Immediately after Amendment 2 passed, Governor Bill Haslam followed up on his commitment to reestablish a judicial nominating commission to vet applicants and send him those candidates most qualified for appointment (maintaining the core elements of the state’s merit selection system). According to the order, every member of the council is to be appointed by the governor, with three members each from the western, central, and eastern parts of the state, and two at-large members. Once a set of candidates is sent to the governor, the governor can choose to appoint one of these three, or he or she can reject all three and ask for a second slate of candidates. However, as the product of a simple executive order, this new commission could be eliminated by Haslam’s successor.
In Tennessee, a constitutional amendment requires passage in two successive legislative sessions (with a simple majority in the first session, and support from two-thirds of legislators in the second), followed by approval from a majority of the voters casting ballots in the election. Voters approved Amendment 2 with 61 percent of the vote.
Florida voters defeated a proposed constitutional amendment that would have given the outgoing governor the power to make “prospective appointments” as his or her term comes to a close. Under the existing system, the governor can only appoint a judge when his or her position becomes vacant, leading to ambiguity when a position opens at the end of a governor’s term. Amendment 3, therefore, was an attempt by the legislature to vest the outgoing governor with the power to appoint a judge in the event that a judicial vacancy occurs on the same day that a new governor takes office. Significantly, on January 8, 2019, three justices widely considered to be part of the court’s left-leaning wing will reach the end of their terms and be subject to mandatory retirement. Governor Rick Scott, who is term-limited, will leave office the same day.
The initiative—which saw no spending on either side—was introduced by Senator Tom Lee (R) and gained the support of the Florida Chamber of Commerce and the Florida Farm Bureau. However, several Democratic lawmakers opposed the bill, as did the League of Women Voters of Florida and former Florida Supreme Court Justice Harry Lee Anstead, who was nominated by four successive statewide nominating commissions and appointed by a Democratic governor. With only 48 percent approval, Amendment 3 fell 12 points shy of the 60 percent threshold needed for passage.
Following unanimous votes in both houses of the state legislature, 82 percent of Hawaii voters approved a constitutional amendment requiring Hawaii’s judicial selection commission to disclose the names of the candidates it recommends to the governor or chief justice for appointment. (In Hawaii, the governor chooses an appointee from a list of four to six candidates submitted by the judicial nominating commission. The appointee must then be confirmed by the Senate.) Support for the amendment came from national advocacy groups with local chapters in Hawaii, including Americans for Democratic Action-Hawaii, the state affiliate of an organization founded by First Lady Eleanor Roosevelt that claims to be a “forthright liberal voice,” 1 the League of Women Voters of Hawaii, and Hawaii Family Advocates. The amendment was opposed by the attorney general, David M. Louie, who felt that a lack of candidate confidentiality and privacy might serve as a deterrent to potential high-quality applicants. No money was spent supporting or opposing the amendment.