Resign, Re-run, Avoid Retention
Three judges in southern Illinois’ 20th judicial circuit—Chief Judge John Baricevic and Circuit Judges Robert Haid and Robert LeChien—resigned in August in order to avoid retention elections. Judges Baricevic and LeChien each had narrow retention margins in their 2010 retention election, but Judge Haida has not yet faced a retention election. Each judge announced his intention, instead, to stand for election in the general election, rather than on the retention ballot. A judge in the general election will win his election with a simple majority but a judge on the retention ballot must attain a “yes” vote from 60% or more of the ballots cast in his election. Each judge is running unopposed in the Democratic primary, as they would be doing in the retention elections. Primary election results show each judge with some measure of lead over their Republican opponents for the general election.
A complaint was filed with the State Board of Elections and a Hearing Officer recommended that the objections to the judges’ ballots be over-ruled. However, on January 21, 2016, the Board announced it was unable to reach a decision and therefore, the judges would remain on the general election ballot. The Board of Elections also voted to send the issue to the Illinois Attorney General for an opinion—that office has not yet released an opinion.
Existing law does not prevent the judges from resigning and re-running and the Code of Judicial Ethics is silent on the matter. A similar tactic was used once before in 2006 by Judge Lloyd Cueto who re-won his seat in the general election (Judge Cueto has since retired from the bench without seeking re-election).
Those in favor of the strategy argue that a judge who resigns and re-runs rather than stands for retention must not only defeat an opponent on the primary ballot but also one in the general election and, therefore, does not necessarily face a lower bar to retaining his seat, despite the difference between attaining a simple majority on the general election ballot and the necessity of surpassing a 60% approval rating on the retention ballot.
The counter-argument emphasizes the purpose of the retention election system: freeing judges from the process of electioneering and the perceptions of bias which it creates.
When a judge resigns and re-runs, he bypassed the retention process, with its higher standard for winning, and creates an impression of avoiding the established process. A retention election is fundamentally different from a general election by design and it is intended to protect both judges and the public by ensuring that sitting judges meet standards of quality and are unbiased by the pressures of political campaigns. Unlike the general election, a retention election is nonpartisan, further removing politics from the process. While the retention system is not with flaws—such as long ballots and lack of voter engagement—, retention elections for sitting judges are the statutory process. It seems disrespectful to ignore that.
We are not alone in finding discomfort with judges resigning and re-running, thereby avoiding a retention vote. In February, Illinois state Rep. Charlie Meier filed House Bill 4673 to prevent this behavior in the future. The Bill states that no judge or former judge may submit his or her candidacy for a vacancy in a judicial office by any method other than seeking retention in his or her office, unless that judge or former judge is seeking judicial office in a higher or lower court or he or she has not served as an elected or appointed judge for at least two years.