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Bryan R. Freeman

Another push for retention elections?

In the seven years since the Quie Commission called for a constitutional amendment to overhaul Minnesota’s system for selecting judges, the proposal has garnered the backing of an impressive array of organizations from all ends of the political spectrum, a cohort that ranges from the Minnesota Chamber of Commerce to the Minnesota Bar Association to the League of Women Voters.

But the Impartial Justice Act, which would eliminate conventional contested elections in favor of a merit-based appointment system with so-called “retention elections,” has made scant progress in the place that matters most, the Capitol, where, year after year, it has languished in committee until the cry of sine die at the end of the biennium signals another ignominious defeat.

Will 2015 be any different?

Sarah Walker, the president of the Coalition for the Impartial Justice, said it’s too early to know whether there will be much desire to revisit the issue in the newly crowned Republican majority in the House. Last session, she noted, the proposal failed to make it out of committee in the DFL-controlled House.

While Democrats are typically more receptive to the proposal, she said the contentious fight over two constitutional amendments on the ballot in 2012 created “amendment fatigue” among lawmakers on both sides of the aisle.

“We’re still evaluating our strategy and potential for success,” said Walker. “But I believe that Republicans care about having a quality judiciary and I think we have a very good case to make.”

While acknowledging that the bill faces stiff opposition, Walker remains hopeful that more Republicans will be open to the proposal in the wake of its intraparty spat over the GOP’s endorsed candidate for the Supreme Court, Michelle MacDonald.

MacDonald, a West St. Paul attorney in private practice, captured the biggest percentage of the vote of any Republican running for statewide office this year, narrowly losing to the incumbent David Lillehaug.

But her campaign also produced a spate of bad headlines, as MacDonald faced a trial stemming from a drunken driving arrest, defied a party ban from appearing at the GOP booth at the State Fair and later filed an unsuccessful campaign law complaint charging that party leaders illegally sought to drive her from the race.

“I think many Republicans were horrified that Michelle MacDonald outperformed the rest of the ticket, despite the backlash from the media and her own party,” said Walker, who described MacDonald’s candidacy “a game changer.”

Sen. Dave Thompson, R-Lakeville, said that the MacDonald campaign has Republicans mulling the party’s commitment to endorsing judicial candidates.

But he said that doesn’t necessarily translate into support for the Impartial Justice Act, which would create a merit-based appointment system with voters’ role limited to a straight yes or no on whether an incumbent should remain in office.

“As a Republican, the political downside of supporting retention elections is great because the activists really dislike it. So unless you have a really a strong philosophical bent, there’s not much incentive to support this thing,” said Thompson, who was among several prominent Republicans to publicly break ranks on the MacDonald race and throw his support behind the incumbent justice, Lillehaug .

“I was of the belief that Michelle MacDonald was not qualified to be on the Supreme Court,” said Thompson. “That doesn’t have me rethinking my position on whether we ought to elect judges. But it does have me rethinking my position on whether we should be endorsing candidates at all and, if we do so, what procedures we should have in place so we don’t have another debacle like this.”

Thompson said he signed on as a co-author to the act last session in the hopes of forging a compromise under which the retention elections would be applied to races in which incumbent judges faced no opposition. When that effort failed, he removed his name from the bill.

“My position was misunderstood. People thought I was accepting retention elections. That was not the case. I just got on the bill to create a conversation and hopefully come up with a hybrid system that a lot of people on both sides think is a very good idea,” he said.

Greg Wersal, the Republican activist and former Supreme Court candidate whose 1998 federal lawsuit, Republican Party of Minnesota v. White, paved the way for partisan judicial races in the state, said retention elections hold little appeal to most Republicans lawmakers.

“It’s never going to get through the House. It hasn’t gotten very far the last few times and I was hoping was hoping it was dead. But maybe we’ll have to kill it one more time,” said Wersal.

Republican legislators who are inclined to break ranks face a risk of considerable political blowback, he added, noting that the party platform explicitly opposes retention elections.

But that could change.

In the midst of the public spat with MacDonald, Keith Downey, the chairman of the Republican Party of Minnesota, warned in a memo that her candidacy “is undermining the conservative argument for electing judges and judicial restraint, and is also calling into question the merit of endorsing judicial candidates.”

On Tuesday, Downey said any changes to the party’s official position on those issues will probably have to wait until the state convention next fall.

“We have to figure out things internally and what the direction will be. It’s a long process,” he said. “But it’s safe to say that a number of people will be interested in taking a look at how we do things and make some changes.”

For her part, MacDonald said this week she intends to run for Supreme Court again in 2016 and vowed to once again seek the GOP endorsement. Despite being outspent nearly 10-to-1 and the considerable negative publicity, MacDonald noted that she garnered nearly 47 percent of the vote.

If only the party had supported her campaign, she said, “We would have a Republican on the Supreme Court.”

Wersal echoed that sentiment. And while retention election advocates have warned that Minnesota’s judicial races will inevitably become more expensive and politically charged if the system isn’t reformed, Wersal said there is little evidence of that in Minnesota so far.

“The White decision is coming up on 20 years and this flood of people running for judicial offices, this flood of money, just hasn’t happened. It’s all bulls–t,” he said.

But hasn’t that been the case in other states?

“I wish it would happen here,” responded Wersal. “I don’t think there’s anything wrong with spending money so that voters know what an election is about. Right now there isn’t enough money being spent.”

In Walker’s view, MacDonald didn’t attract much in the way of donations because of the various controversies that plagued the campaign from the outset. But she said money isn’t the only rationale for overhauling the state’s approach to judicial selection.

Even the best-informed voters, Walker said, have little clue about how to vote in some judicial races and studies have shown that decisions are often based on arbitrary considerations such as the candidate’s last name, gender or incumbency status.

“Our proposal would take care of the fact the Minnesotans are in the dark about judicial elections,” she said.

New House Speaker Kurt Daudt, R-Crown, could not be reached for comment on his views on retention elections.

However, he provided reform advocates with a shot of hope this week with the naming of Rep. Tim Sanders, R-Blaine, as the chair of the Government Operations & Elections Policy Committee. Sanders was one of 17 co-sponsors of the bill last session.


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