2024 Ballot Measures That Could Impact State Courts 

When voters head to the ballot box this year, they will be voting on nearly a quarter of the state supreme courts seats across the country. But proposed ballot measures in several states contemplating major changes to state judiciaries, from mandatory retirement ages to judicial ethics, could have a significant effect on state courts as well.

Here are some of the major ballot measures affecting state judiciaries this year.

Eliminating retention elections in Arizona

Arizona judges and justices are appointed pursuant to a merit selection system. Under this system, the governor appoints a judge from a list provided by a judicial nominating commission. That judge then stands for regular unopposed retention elections until reaching a mandatory retirement age of 70.

Earlier this year, the Arizona legislature referred a constitutional amendment to this fall’s ballot that would eliminate regular retention elections for Arizona Supreme Court justices and many other state judges. Instead, retention elections would only be triggered in one of five defined situations, including a finding by the state’s Commission on Judicial Performance Review that a judge or justice has not met judicial performance standards. The measure would also allow any individual legislator, upon written request, to require the commission to investigate an allegation that a justice or judge engaged in a pattern of malfeasance in office, creating opportunities for legislators to politicize judicial ethics through baseless investigations into sitting judges.

The proposal comes on the heels of several major developments impacting Arizona’s judiciary. In 2016, Arizona added two justices to its state supreme court on a party-line vote, giving the Republican governor two additional seats to fill. Six years later, the state saw its first coordinated anti-retention campaign, leading to the ouster of multiple lower court judges. The state is in the midst of another anti-retention campaign against two supreme court justices who permitted a pre-Civil War abortion law to go into effect while litigation proceeded in the lower courts.

If approved by voters, the proposal would apply retroactively to current justices, including the two justices up for retention election this year, meaning that the two justices up for retention would retain their seats regardless of the results of their individual retention elections.

Raising the retirement age in New Hampshire

In New Hampshire, the governor appoints judges and a five-member elected council confirms those appointments. Judges do not stand for retention or reappointment, but the state constitution imposes mandatory retirement at age 70. Any changes to that age limit must be made by constitutional amendment. Earlier this year, the legislature referred to voters a constitutional amendment that would increase the mandatory retirement age from 70 to 75. While no specific judges would benefit from this immediately, the measure was sponsored by a former justice on the state’s high court, who was forced to retire last year after reaching age 70. The former justice made it clear he would have stayed on the court if not for the mandatory retirement age.

Every state but Rhode Island either imposes a mandatory retirement age on its judges or subjects judges to regular approval by voters. In recent years, some legislatures have increased mandatory retirement ages, sometimes for political purposes. For example, last year North Carolina’s GOP-controlled legislature increased the mandatory retirement age for justices from 72 to 76, which had the effect of prolonging the Republican chief justice’s time on the court. However, such efforts have been largely unsuccessful in states where such changes required voter approval, with ballot measures failing in recent years in Arizona, Hawaii, Louisiana, New York, Ohio, Oregon, Texas, and Wyoming.

Judicial accountability in Colorado

Some voters will also have the opportunity to approve major judicial ethics reform. Several years ago, a scandal concerning the coverup of workplace misconduct engulfed the Colorado judiciary, resulting in the former chief justice’s censure. One major aspect of concern involved the chief justice’s obstruction of an independent investigation into his conduct by the state’s Commission on Judicial Discipline.

Like every state — though unlike the U.S. Supreme Court — Colorado has a framework for investigating and adjudicating misconduct complaints against members of its judiciary. Under that framework, the state’s Commission on Judicial Discipline reviews that potential misconduct. The commission is empowered to recommend sanctions, but final determinations regarding punishment are made by the Colorado Supreme Court, even for ethics complaints concerning Colorado justices. While some states have procedures that prevent such conflicts of interest by requiring that review of discipline cases against justices be handled by a separate panel of appellate or trial court judges, or both, Colorado does not.

Earlier this year, a bipartisan majority of legislators referred a constitutional amendment to the ballot that would, among other things, restructure Colorado’s disciplinary framework to avoid such conflicts. The proposed amendment creates a bifurcated board structure that empowers a newly created disciplinary board to issue sanctions, rather than merely recommend them. If a justice were to appeal a disciplinary sanction, the amendment empowers a tribunal of randomly selected appeals and district court judges to have the final say, rather than the Colorado Supreme Court.

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The rules by which state judges must operate can significantly shape the law and legal culture in a state. With state courts deciding major cases on national issues like abortion and voting rights, it is imperative that voters understand the impact of these — and other — proposed changes to their state judiciaries.

Michael Milov-Cordoba is a counsel in the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Michael Milov-Cordoba, 2024 Ballot Measures That Could Impact State Courts, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ(Oct. 23, 2024), https://statecourtreport.org/our-work/analysis-opinion/2024-ballot-measures-could-impact-state-courts