The Nov. 8 ballots in Minnesota will be crowded with candidates for governor, attorney general, Congress, the Legislature and county offices.
One thing they won’t have in nearly the entire state: a contested race for judge. There are two Supreme Court seats on the ballot, 10 for the Court of Appeals and 94 for the District Court. In only one race — a District Court race in Shakopee — is there more than a single choice for voters.
Minnesota, which elects judges in nonpartisan elections, rarely has a lot of contests for judicial spots. In 2020 there were five, in 2018 and 2016 there were eight, and in 2014 there were 10. But having only one is rare.
“That is intriguing,” said Herbert Kritzer, a professor emeritus at the University of Minnesota law school who has written extensively about judicial selection in the U.S.
And when sitting judges are challenged, they rarely lose. Kritzer found five such defeats of District Court judges since 1996. Going back to 1984 when it was created, there wasn’t a single appeals court judge defeated. A Supreme Court justice hasn’t lost since 1946, and historians have to go back to 1916 to find another incumbent defeat.
Such rarity of victory makes the risk of running, especially against a sitting district court judge, quite high, he said.
“There’s a good reason local lawyers don’t challenge local judges,” he said. “If they challenge them and lose, they’re going to have to stand before those judges as a lawyer. That tends to be a pretty good disincentive.”
The few times when challenges do happen are if the seat is filled with a recently appointed judge or if that judge “did something stupid,” such as happened in St. Paul in 2018 when Judge G. Tony Atwal was defeated after being convicted of a second impaired driving offense. The winner was P. Paul Yang.
Atwal’s defeat was the first for a sitting district court judge since 2010, and none lost in 2020.
That one contested seat involves Charles F. Webber, who was appointed to a Scott County judgeship by Gov. Tim Walz in April 2021. Before the end of the candidate filing period, Matthew R. Hanson of Prior Lake filed for the seat. Only voters within that judicial district will pick a winner in November.
Asked why he was running, Hanson cited the lack of contested judge elections.
“If the judiciary in Minnesota is to remain truly independent, then we must return to the primary method of selecting judges in Minnesota: local elections by the people,” Hanson said by email. “The Minnesota constitution … dictates that ‘(judges) shall be elected by the voters from the area which they are to serve in the manner provided by law.’”
Kritzer said the other opportunity for contested judge races is when there is an open seat when an incumbent chooses not to run again or faces mandatory retirement. But open seats are rare as well. Even though the state has nonpartisan elections for judges — one of 13 states to use that method for filling the bench — it is something else in practice. Sitting judges most often resign before their terms have expired, giving governors the opportunity to appoint replacements.
There have only been two open-seat elections since 1946, he said, one in 1966 and the 1992 election won by longtime Justice Alan Page. And Minnesota’s Supreme Court has not seen the type of partisan elections that have prevailed in Wisconsin, Kritzer said.
In his nearly four years in office, Gov. Tim Walz has already appointed 66 of the 286 judges at the District Court level, six of the 19 Appeals Court judges and one of the seven members of the Supreme Court. In his eight years in office, Gov. Mark Dayton appointed 162 District Court judges, 14 Court of Appeals judges and six Supreme Court judges.
It is Supreme Court races that most often attract challengers. But even there, Minnesota stands out for having very few sitting justices who got their jobs by first running for the office rather than being appointed. Only Georgia and North Carolina have a similar record for justices who were first appointed. Citing numbers collected by the Brennan Center for Justice, Kritzer has written that while 54.9% of justices in nonpartisan election states reached office via election, none currently serving in those three states was first elected.
By contrast, in three states, Pennsylvania, Louisiana and West Virginia, all justices first reached the court via election rather than appointment.
Again, Kritzer cited Minnesota and Georgia as states where the “norm” on the Supreme Court is for justices to resign so as to give governors, not voters, the first chance to pick a successor.
Mandatory retirement — age 70 in Minnesota — plays a role in the frequency of governor appointments. Across the U.S., according to a Kritzer article called “Appointed or Elected: How Justices on Elected State Supreme Courts Are Actually Selected,” of the 43 new justices in nonpartisan election states who followed judges facing mandatory retirement, 33 came from Minnesota and 32 of those new Minnesota justices were initially appointed.
With only seven positions and with their terms staggered, there are just two or three positions on the ballot each even-year election. The last four times an incumbent judge was challenged over the last five election cycles, the opponent was Michelle MacDonald. But MacDonald is barred from running this year because her law license was suspended indefinitely by the Supreme Court for violations of the code of professional conduct.
Her two most-recent election opponents — Justice Paul Thissen and Justice Margaret Chutich — did not take part in deciding that suspension.
Minnesota adopted nonpartisan judicial elections 110 years ago. Kritzer said states with partisan elections — in which a political party is listed below the candidates’ names — tend to have more contested races. Eight states have such party-driven elections, while five have governors appoint judges, two have judges picked by their legislatures and 21 use the so-called Missouri Plan. That plan, recommended in 2007 by a commission led by former Gov. Al Quie, has governors appoint from a list presented by a review panel. Those judges later face retention elections where they appear alone on the ballot for an up-or-down judgment by voters. The plan never reached the state ballot in Minnesota.
Because contested races are the exception, one recent election stands out. In 2010, 24 candidates entered a race for a single position on the District Court bench in Stillwater. Because the opening occurred after the filing period and not in time for a primary, all 24 appeared on the general election ballot and the job went to the top vote-getter, who carried just 15 percent of the vote.
That candidate, Tad Jude, who this year was a candidate first for state attorney general and then for Hennepin County attorney, ran six years later without opposition.
Editor’s Note: Peter Callaghan wrote this story. This originally appeared Aug. 18 on MinnPost.com. This story had been updated to replace a missing word in Hanson’s citing of the Minnesota Constitution.
Callaghan covers the state government for MinnPost. Follow him on Twitter or email him at pcallaghan(at)minnpost(dot)com.
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