Brian J. Gaines is the Honorable W. Russell Arrington Professor in State Politics for the University of Illinois system, and a professor in the Department of Political Science at the University of Illinois Urbana-Champaign. Most of his research deals with elections, electoral rules, and public opinion.
Gaines responds to Judge Shannon O’Malley, a first-term judge in the court’s child protection division, being ousted by voters in the Nov. 5 election. O’Malley received 57.9% “yes” votes, falling short of the 60% required to stay on the bench, according to unofficial final results published this week.
What factors might explain the rarity of judges being voted out in retention elections, and how does public opinion typically influence these outcomes?
There are competing tendencies at play. “Default bias” or “status quo bias” is a pretty strong factor across decisions, wherein inertia triumphs because people instinctively reject change. In psychology experiments, for instance, people assigned random small prizes tend strongly not to switch when offered the choice. On the other hand, uncertainty can prod people to vote no.
When ballot measures, especially complicated ones, fail, it could be a sign of status quo bias wherein people who feel unclear on the policy or issue pick no to avoid change. But it could also be that those lacking information about judges figure that they know no reasons to vote yes, so should go with no. The former seems to have prevailed in the past, but it was never obvious that low-information elections necessarily favor inertia or incumbents all the time. In particular, whether we see more and more two-sided campaigns, with airing of pros and cons of retention, is likely critical.
Given that Judge O’Malley is the third judge to lose retention since 2018, do you see this as a sign of shifting public attitudes toward judicial accountability in Cook County?
There is certainly some reason to think that retention is getting a bit harder. Active campaigns against judges are not brand new, but they have been increasingly common in Illinois and other states that employ retention elections, such as Iowa and Florida, for about 10-15 years. Sometimes a single, high-profile case is the catalyst, and sometimes these campaigns originate in allegations of impropriety. Here, the 2020 non-retention of Illinois Supreme Court Justice Thomas Kilbride was a precedent maker, prompting Springfield powers (i.e., Democrats) to redraw judicial district boundaries for the first time in decades, to try to prevent a repeat. But dissatisfaction with judges and courts is not strictly partisan, and that defense is not always possible.
How might the threshold of 60% for judicial retention compare to similar rules in other jurisdictions? Do you believe this threshold effectively balances judicial independence with public oversight?
60% is on the high side for retention threshold. Many jurisdictions use simple majority. I will note that the requirement is 60% of votes cast, not of all ballots cast. So, substantial abstention (“roll off” or “drop off”) does not harm judges’ ability to stay on. Supermajority requirements also apply to constitutional amendments, in a slightly more complicated rule, so retention elections are not unique. Even if 60% seems high, historically most judges cleared the bar easily. Incumbency success rates remain very high.
