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Duke Journal of Constitutional Law & Public Policy

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judicial retention, merit selection, ballot access


Courts | Election Law | Judges | Law


This Article considers methods by which state appellate court judges are selected. It focuses on the evolution of and rationale for the so-called merit-selection system, a hybrid approach that prevails in a substantial number of jurisdictions. Under merit selection, there is an initial gubernatorial appointment based on recommendations from a nominating committee and a retention election, which is limited to a single candidate and a single question: whether the initially appointed appellate judge should be retained so as to serve a new term. The retention election is a form of election that satisfies states’ requirements that judges be elected. But the limits on access to the retention-election ballot pose substantial issues under the Supreme Court's ballot-access cases. The Article recognizes that merit selection has been challenged under state and federal constitutional theories but not under the ballot access cases, which may prove to be the Achilles Heal of the retention election system. Strict scrutiny applies to the total foreclosure of access to an election ballot, and the strict-scrutiny standard applies to judicial elections. Strict scrutiny requires consideration of alternatives, such as contested elections or judicial appointments. While merit-selection systems have long been challenged yet never toppled, consideration of the ballot-access cases may result in a different outcome, as judicial retention elections serve as a complete bar to the ballot for all candidates other than the candidate who seeks retention for a new term.



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