Judicial Retention Elections Typically Low-Key Affairs

By 
Richard Shugrue
Creighton Law Professor, Ret.

This November, two members of the Nebraska Supreme Court will be on the ballot in retention elections under the state’s merit system.

Lindsey Miller-Lerman, senior member of the state’s highest court, and Jeffery Funke, appointed in 2016, are on a non-partisan ballot in which voters are asked whether they should be retained in office.

Funke represents the 5th Judicial District, which covers Cass and Otoe counties, but extends to counties as far as Webster and Hall counties. He is a former county judge and served on the district court before his appointment by Gov. Pete Ricketts.

Miller-Lerman was the first woman appointed to an appellate court in the state, when Gov. Ben Nelson named her to the then-new Nebraska Court of Appeals, created in 1991. She served as chief judge of that court before being named to the Nebraska Supreme Court by Nelson in 1998.

She was the first woman to serve on the top court in the history of the state. Her district is roughly the north half of Omaha, running from Pacific Street to State Street.

The judicial retention elections are usually low-key affairs. For example, Chief Justice Mike Heavican, who is the only high court jurist to run on a state-wide ballot, faced voters in 2016 and about 671,000 ballots were cast. In the presidential election that year, Nebraskans cast more than 844,000 votes.

The most controversial Nebraska Supreme Court retention election in the state’s history was in 1996, when Justice David Lanphier was removed after a well-funded interest group targeted him, the only justice on the ballot that year, in revenge for court actions they did not like.

Iowa, which also uses a merit plan for high court judges, had one of the most notorious revenge removal elections in 2010, when three jurists, including the chief justice, were removed from the Iowa Supreme Court. The group opposing the justices did not approve of a decision declaring same-sex marriages to be constitutional.

 Just a few years later, the U.S. Supreme Court ruled in Obergefell v. Hodges (2015) that there is a fundamental right to wed no matter the gender under the federal constitution.

In recent years, many judges have reported having nightmares over well-financed campaigns to remove them from office, whether under merit plan retention elections or partisan or nonpartisan competitive battles.

In the Iowa campaign of 2010, for example, more than $100,000 was spent against the incumbent justices. 

Leonard Leo, long associated with the Federalist Society, offered material aid to the Trump administration to name more than 200 federal judges, has started a group called CRC Advisors, which is raising millions to influence judicial selections this fall on behalf of conservative ideology.

That could result in a more interesting fall this year.

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