Why Pa. voters are asked to choose ‘yes’ or ‘no’ for some judges on Election Day

Pennsylvania is among a handful of states that hold partisan elections for judicial seats.

But after a judge is elected to the bench, the partisanship is meant to stop.

That’s why, in November’s election, Pennsylvania voters will see the option to mark “yes” or “no” next to some candidates on their ballots. Those are the names of sitting judges whose terms have expired, leaving it up to voters to determine whether they should retain their seats.

Featuring judges from county trial courts to the state Supreme Court, the judicial retention ballot section in an off-year election can go largely unnoticed, and judges usually cruise through the process to an extra term. Since retention elections began in 1969, only one Pennsylvania Supreme Court justice, Russell Nigro, has ever been ousted.

But this year’s election season is different.

Millions of dollars have already poured into a campaign to boot three Democratic Supreme Court justices from their seats, and millions more have been spent on ads to retain them.

Here’s what you need to know about retention elections, how Pennsylvania got this quirky system, and who is on the ballot.

Retention elections are the mechanism through which Pennsylvania voters give judges another term — or the boot.

Judges in Pennsylvania are elected through partisan elections. They need to win a primary and then run under a party label, just like any other elected position.

But once they are on the bench, they are expected to act without partisan biases and apply the law fairly.

To avoid having active judges engaged in a head-to-head race against opponents at the end of their terms, voters select “yes” to give the judge another term, or “no” to have the judge vacate the bench.

“Retention elections are in essence a job-performance report,” said Deborah Gross, president and CEO of the nonprofit Pennsylvanians for Modern Courts. “It’s a check-in to make sure a judge is doing their job.”

Most judges in the state are elected for 10-year terms. Philadelphia Municipal Court judges are elected for six-year terms, as are magisterial district judges in the rest of the state. (Magisterial judges, however, are not reelected through retention.)

The only other check on how long judges serve is the mandatory retirement age of 75.

Judicial retention elections in Pennsylvania were born from a historic compromise between a merit-selection process by a committee and a partisan election.

Pennsylvania updated its state constitution in 1968, and as part of the process, voters approved a slate of judicial reforms, including retention elections.

Before the 1968 update, judges ran for reelection as partisan candidates like any other elected official. (Pennsylvania previously also experimented with judicial appointments, nonpartisan ballots, and elections for long terms without reelection.)

The League of Women Voters made the case for the retention system in 1967, saying it would “help to keep the courts out of politics and politics out of the courts.”

Many legal advocacy organizations, including Pennsylvanians for Modern Courts and the Philadelphia Bar Association, support a merit-selection system to replace elections altogether.

Retention elections for the Pennsylvania Supreme Court are usually few and far between, as terms run for 10 years. And they have been more rare over the last two decades, due to resignations, retirements, and the death of a chief justice.

The last time a Supreme Court justice was up for retention was in 2017.

But this year, in an unusual occurrence, three justices are up for retention: Christine Donohue, Kevin Dougherty, and David Wecht. The judges were all elected to 10-year terms as Democrats in 2015, following scandals that included the 2013 criminal conviction of one justice and the 2014 suspension and resignation of another, leaving three seats open.

The election caused the balance on the state’s highest court to become a 5-2 liberal majority.

The rare confluence of three justices up for retention at once comes amid increased political focus on state supreme courts.

This year’s race in Pennsylvania offers Republicans their best chance at altering the balance of the court before the 2028 election. And Democrats view keeping the current justices as essential to securing protections for abortion rights and other civil liberties.

Donohue, Dougherty, and Wecht have engaged in unprecedented campaigning, appearing in TV ads and events across the state. And the state Republican Party has made ousting them a top priority.

Millions have been spent on the race, including more than $7 million pledged directly to the justices by mid-September.

“The concept was to remove politics at least to some extent from the process by having a retention election,” Marc Zucker, a commercial litigator and former chancellor of the Philadelphia Bar Association, said. “As it turns out, it remains a politicized process.”

It would be historic if any, or all, of the Pennsylvania Supreme Court justices lose the retention vote.

Justices have won most retention elections in the last two decades with two-thirds of the vote or more.

If justices lose retention, they would serve until the end of the year, when their term expires. Then the governor could appoint an interim replacement. That appointment, however, would need to be confirmed by the GOP-controlled Pennsylvania Senate.

If Democratic Gov. Josh Shapiro and Senate leaders are unable to agree on a replacement, the seat could be open until a partisan election in 2027, the next off-year election. Until then, the state’s highest court would operate with only four justices — two liberals and two conservatives — to take on any pre-presidential election cases, and more.

In addition to the three justices on the state Supreme Court, Superior Court Judge Alice Beck Dubow and Commonwealth Court Judge Michael Wojcik will be on the ballot for retention statewide.

And each county will have its own trial judges on the ballot. In Philadelphia, 13 Common Pleas Court judges and five Municipal Court judges are seeking retention.

Judicial elections create a challenging information environment.

“How do you make a decision when the judicial code of conduct really limits how judges can even campaign?” said Lauren Cristella, the president and CEO of the Committee of Seventy.

Cristella recommends relying on bar associations’ thorough vetting of judicial candidates.

» READ MORE: The future of redistricting in Pa. could be at stake in November’s Supreme Court race

The Philadelphia Bar Association declined to recommend four Common Pleas Court judges and a Municipal Court judge this cycle. The association’s recommendations can be seen at https://electqualifiedjudges.com.

The Pennsylvania Bar Association (www.pabar.org/site) vets statewide judicial candidates.

For the first time, Cristella said, the Committee of Seventy created a statewide nonpartisan voter guide that includes judicial races. It can be found at ballot.seventy.org.