Judicial Elections

Background

State judicial elections are a little noticed but important battlefield in the ongoing ideological contest in the United States over the future of U.S. environmental law. In many ways, the states represent the front line in environmental policy development and environmental law enforcement. In addition, to exercising delegated authority under such major federal laws as the Clean Water Act and the Clean Air Act, states have adopted a variety of their own pollution prevention and natural resource protection laws. States ands localities, of course, exercise primary control over land use issues in this country. State courts play a crucial role in interpreting applying state and local laws relating to environmental protection and natural resource management.

Over the last decade, opponents of environmental regulatory policies have mounted a coordinated campaign to influence the direction of state environmental policies by promoting the election of state judges inclined to support their positions. At the federal level, judges are appointed to lifetime positions, and some state judicial appointment procedures likewise guarantee a significant degree of judicial independence. But in some 40 states judges at some level stand for election of some type. Some state judicial elections are overtly partisan, and some are at least nominally non-partisan. Some states hold "retention" elections, in which sitting judges are on the ballot seeking "yes" votes for another term but there is no direct opponent; other states set up head-to-head contests between judicial candidates.

Over the last decade, various pro-industry, anti regulatory groups have mounted increasingly strong electoral challenges to sitting judges, based on variety of judicial actions, but including their decisions in environmental and land use cases. An Oklahoma-based group launched a nationwide program of judicial evaluations, scoring judges on whether or not their decisions in environmental cases do or do serve the interests of regulated businesses. Because state judicial elections have relatively low visibility, the efforts of business groups to influence state judicial elections appear to have had significant impact without attracting significant public attention.


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