The Constitutional Risks of Judicial Elections
Out of 5.5 million ballots cast, North Carolina’s 2024 Supreme Court election was determined by a margin of just 734 votes. Publicity efforts by Republican Jefferson Griffin [1] and Democrat Allison Riggs [2] resulted in both candidates campaigning loudly on the "rule of law," broadcasting their judicial philosophies while soliciting financial contributions from supporters. That said, after six months of protests and disputes over ballot counting, Jefferson Griffin conceded defeat to Allison Riggs [3]. As shown by the tenth of a percent difference in results between the two candidates, the race clearly divided the state along ideological and partisan lines.
But what do such divisions mean for a branch of government that is supposed to be non-partisan? Do judges shift their opinions on crime near large elections? And are elections the fairest way to choose judges, or do alternative methods of selection produce rulings that are more consistent and impartial?
Numerous studies address these questions, examining how “tough on crime” sentiment and campaign contributions influence judicial rulings. The US Constitution codifies the right to a fair trial through the Due Process Clauses of the Fifth and Fourteenth Amendments. Despite these protections, debates over the fairness of the judicial system are highly contested, and rightfully so. In 39 states, voters select judges by election in at least some parts of the system [4]. To earn and retain their positions, as seen with Riggs and Griffin, judicial candidates run campaigns that involve verbal attacks and significant financial involvement, much like those in congressional and presidential races. Substantial evidence suggests that judicial elections can influence the outcomes of criminal cases in multiple ways, ultimately leading to harsher rulings for defendants. The following analysis will focus on the implications for North Carolina’s justice system and potential for reform.
The method of judicial selection varies depending on the level and type of court. Appointment and election are the two main assignment processes used in the United States, and many states use some combination of both [5]. Proponents of electing judges argue that campaigns and a public vote promote better representation and greater philosophical diversity on the bench [6]. The three main types of judicial elections are partisan, nonpartisan, and retention [7]. Partisan elections list the candidates' political parties next to their names on the ballot, whereas nonpartisan elections do not [8]. In retention elections, a judge runs unopposed, and voters simply determine whether or not the judge will remain on the bench [9]. The appointment process, on the other hand, is more complex. In appointment-based systems, judicial candidates are nominated by an individual, like the US President or governor, or a state’s independent commission [10]. All Article III Federal Judges, which include the US Supreme Court Justices as well as the court of appeals and district court judges, are appointed in accordance with the guidelines of the US Constitution [11]. Under the federal system, the US President nominates judges, and the Senate confirms their appointment to the bench for life [12].
In North Carolina, the state court system is separated into the Appellate, Superior, and District Court divisions [13], where judges are largely elected through partisan elections [14]. In the state’s district court system, voters in each district elect a corresponding judge to a four-year term [15]. Divided into 41 districts, these courts hear criminal, civil, juvenile, and magistrate-related cases [16]. The district court handles misdemeanors, which are less serious local crimes, initially hears felony cases before they potentially move to the Superior Court [17]. There are no juries in district court, meaning that the rulings of these elected judges are often the final word.
While judicial selection methods vary by state, there are still some national guidelines that apply across the board. The Supreme Court ruled in Caperton v. A.T. Massey Coal Co. that, “a judge cannot hear a case that centers on the financial interests of someone who supported him substantially in his campaign for election” [18]. This ruling acknowledges the fact that monetary factors can influence judges, but it does not provide guidelines for smaller conflicts and psychological influences that may come from election campaigns. In Republican Party of Minnesota v. White, the Supreme Court found that, under the First Amendment, judicial candidates have a constitutional right to express their political and legal views in their election campaigns [19]. While these rulings define the constitutional framework for judicial elections, research suggests that campaign pressures still influence judges’ decisions.
Results from multiple studies analyzed in a 2015 Brennan Center report found that judges delivered harsher sentences closer to election cycles [20]. Results from a study by Pennsylvania, Huber, and Gordon showed that over 2,000 years of additional incarceration sentencing correlated with trial court judge elections that occur every ten years. Another study by Berdejó and Yuchtman found that judges in Washington State delivered sentences that were 10% longer at the end of their term than at the beginning [21]. Additionally, a 2015 Reuters study found that the reversal rate of death sentences was 26 percent for appointed judges, 15 percent for elected judges, and 11 percent for elected judges near competitive elections [22]. The studies referenced provide quantitative evidence that points to the impact of election pressures on judges’ harsher crime sentencing trends.
Media trends have also been shown to influence judicial rulings [23]. Shepherd and Kang’s study determined that the possibility of attack advertisements correlated with state Supreme Court Justices being more likely to rule against defendants [24]. This supports Former Mississippi Justice Oliver Diaz’s claim that “judges who are running for reelection do keep in mind what the next 30-second ad is going to look like” [25].
In 1996, North Carolina adopted Senate Bill 41, which changed elections for Superior Court judges from a statewide process to one where judges are elected only by voters in their respective district [26]. A 2023 study from Bowling Green State University examined the influences of this change on judicial rulings [27]. The driving question of the study was whether or not judges became more responsive to the political leanings of their districts after the passage of Bill 41 [28]. Results found that judges who were appointed to liberal-leaning districts began to rule more sympathetically, whereas the judges assigned to conservative-leaning districts gave out harsher sentences. The study also found that in the most conservative districts, the judges were not proportionally as responsive in their rulings, which correlated with lower reelection rates. These findings show a positive correlation between judges' responsiveness to their voters and their chances of reelection.
All seven judges in North Carolina’s District Court 16, which serves Durham County, are affiliated with the Democratic Party [29]. While this is representative of the political makeup of Durham, where the vast majority of residents lean liberal [30], it discounts the diversity argument in favor of judicial elections. These judges, like in the rest of the state, were elected through partisan elections. A 2021 study in the Journal of Public Economics looked at the differences in judicial rulings for judges elected based on “merit,” or nonpartisan elections, and through partisan elections [31]. Looking specifically at states that moved from partisan to nonpartisan elections, results found that the judges improved in the accuracy and quality of their performance, such as by increasing the judges’ citation rate [32]. This evidence supports the idea that partisan elections may cause judges to focus more on election pressures rather than their actual performance.
If elections consistently distort judicial decision-making, this evidence raises necessary questions about the possibility of reform. Rulings made by judges have lasting impacts on individuals and entire communities, so they must be unbiased and equitable. Despite the drawbacks to electing judges, it is important to note that no system is perfect. Systems where the governor appoints judges likely contain bias from the governor’s preferences and may not hold judges accountable if they are appointed for life. One recommendation to reduce this effect is an independent nominating commission to appoint judges. Judges must be selected in a manner that prioritizes merit and independence over politics to ensure fair outcomes for all justice-involved individuals.
Edited by Marshia Ahsan
Endnotes:
[1] Judge Jefferson Griffin for NC Supreme Court, online at https://www.jeffersongriffin.com (visited October 26, 2025).
[2] Justice Allison Riggs (Riggs for Our Courts), online at https://www.riggsforourcourts.com (visited October 26, 2025).
[3] Gary D. Robertson, Republican Concedes Long-Unsettled North Carolina Court Election to Democratic Incumbent (AP News May 7, 2025), online at https://apnews.com/article/north-carolina-supreme-court-election-appeal-b227a456e5ca04bc42bf6075af46028c (visited October 26, 2025).
[4] Significant Figures in Judicial Selection (Brennan Center April 14, 2023), online at https://www.brennancenter.org/our-work/research-reports/significant-figures-judicial-selection (visited October 26, 2025).
[5] Methods of Judicial Selection (The Fund for Modern Courts 2025), online at https://moderncourts.org/programs-advocacy/judicial-selection/methods-of-judicial-selection/ (visited October 26, 2025).
[6] The Fund for Modern Courts, Methods of Judicial Selection.
[7] Judicial Election Methods by State (Ballotpedia 2025), online at https://ballotpedia.org/Judicial_election_methods_by_state (visited October 26, 2025).
[8] Ballotpedia, Judicial Election Methods by State.
[9] Ballotpedia, Judicial Election Methods by State.
[10] Ballotpedia, Judicial Election Methods by State.
[11] Types of Federal Judges (United States Courts 2025), online at https://www.uscourts.gov/about-federal-courts/types-federal-judges (visited October 26, 2025).
[12] United States Courts, Types of Federal Judges.
[13] Structure of the Courts (North Carolina Judicial Branch), online at https://www.nccourts.gov/learn/structure-of-the-courts (visited October 26, 2025).
[14] Michael Milov-Cordoba, How Years of Legislative Maneuvering Shaped This Year’s Judicial Elections | Brennan Center for Justice (Brennan Center October 15, 2024), online at https://statecourtreport.org/our-work/analysis-opinion/how-years-legislative-maneuvering-shaped-years-judicial-elections, (visited May 8, 2025).
[15] Court Officials (North Carolina Judicial Branch), online at https://www.nccourts.gov/learn/court-officials (visited October 26, 2025).
[16] District Court (North Carolina Judicial Branch), online at https://www.nccourts.gov/courts/district-court (visited October 26, 2025).
[17] Organization of the Court System (North Carolina Judicial Branch), online at https://www2.nccourts.org/neo/overview_5.htm#:~:text=District%20Court%20tries%20misdemeanor%20cases,in%20jail)%20and%20misdemeanor%20appeals (visited October 26, 2025).
[18] Caperton v. A.T. Massey Coal Co., 556 US _ (2009)
[19] Republican Party of Minnesota v. White, 536 US 765 (2002)
[20] Kate Berry, “How Judicial Elections Impact Criminal Cases: Introduction,” Brennan Center for Justice at NYU School of Law 1, 1 (2015).
[21] Berry, “Judicial Elections,” 8.
[22] Berry, “Judicial Elections,” 10.
[23] Berry, “Judicial Elections,” 8.
[24] Berry, “Judicial Elections,” 8.
[25] Berry, “Judicial Elections,” 7.
[26] Joshua Boston and Bernardo S. Silveira, “The Electoral Connection in Court: How Sentencing Responds to Voter Preferences,” Journal of Law and Courts 1, 2 (2023).
[27] Boston and Silveira, “Electoral Connection,” 2.
[28] Boston and Silveira, “Electoral Connection,” 2.
[29] North Carolina District Court 16 (Ballotpedia 2025), online at https://ballotpedia.org/North_Carolina_District_Court_16 (visited October 26, 2025).
[30] Durham, NC Political Map – Democrat & Republican Areas in Durham, online at https://bestneighborhood.org/conservative-vs-liberal-map-durham-nc/#google_vignette (visited October 26, 2025).
[31] Ash, Elliott, and W. Bentley MacLeod, “Reducing Partisanship in Judicial Elections Can Improve Judge Quality: Evidence from U.S. State Supreme Courts,” 201 Journal of Public Economics 1, 1 (September 2021).
[32] Ash et al., “Reducing Partisanship,” 2.