Two Arizona counties might soon do away with electing judges and instead use the merit selection system already in place in the state’s three most populous counties.
The Arizona Supreme Court is predicting that Yavapai County is likely to have enough residents after the 2020 Census to automatically join the merit selection system.
And voters in Coconino County will decide in November whether to opt into the system, even though fewer than 150,000 people live there.
The Arizona Constitution requires the use of merit selection in counties with at least 250,000 people. Instead of running for election, judges in those counties must apply for vacant positions with a commission whose members are appointed by the governor and the State Bar of Arizona. That commission vets the applicants and sends the governor a list of at least three nominees, no more than two of whom can be from the same political party. The governor must select the new judge from that list.
Maricopa, Pima and Pinal counties currently use merit selection, and the system is also used to select Court of Appeals judges and Arizona Supreme Court justices. Judges who are appointed under merit selection must stand in retention elections every two years, but they face no opponents and voters simply vote on whether to keep them in office.
Only once, in 2014, has a judge been removed from office in a retention election, when Maricopa County voters rejected Superior Court Judge Benjamin Norris.
While the future of Coconino County’s judiciary depends on whether voters there approve Proposition 416, population growth will likely decide the issue in Yavapai County. In 2010, the county’s population was about 211,000. By 2015, that figure reached 225,000, and the Supreme Court believes it is “highly likely” that the county’s population will hit 250,000 by the 2020 Census, according to the budget request that it submitted to the Governor’s Office for the next fiscal year.
The Arizona Supreme Court is asking the Governor’s Office for a budget increase of $117,500 next year so it can prepare for the possible implementation of merit selection in Coconino and Yavapai counties. The funding would be used to hire one new employee and cover operating and travel costs associated with helping the two counties join the merit selection system.
Yavapai County Supervisor Thomas Thurman was skeptical that the county will reach the population threshold needed to trigger merit selection by 2020. He said Yavapai County’s population has likely reached 240,000, and perhaps is as high as 245,000.
Thurman said there are some drawbacks to the direct election of judges. For one, candidates for Superior Court judgeships rarely have opponents. And there are downsides to having judges have to engage in some of the activities that is required of political candidates.
“Knowing some of the judges personally, it’s a little awkward sometimes to be on the bench and then maybe at lunch go down outside the courthouse building and have to ask for signatures to get on the ballot,” he said.
All things considered, Thurman said he’d prefer “we just leave things status quo because it’s been working” if Yavapai county ends up short of the population threshold after the census.
Retired Coconino County Superior Court Judge Jeffrey Coker thinks the status quo needs to be changed. Coker owes his five terms on the Superior Court bench to direct elections, but has thrown his support behind the push for merit selection in Coconino County.
Coker gave several reasons for supporting the change. He noted that Coconino is the second-largest county in the United States, and said campaigning across such a vast area takes judges off the bench for too long. And voters may have no idea whether someone is qualified to be a judge when they cast their ballots, he said.
In a direct election system, judges, like other political candidates, need to raise money. And the only people who usually care enough about judicial races to contribute are lawyers, Coker said. Even if judges try to avoid knowing where the money comes from — Coker said he, like many other judges, had someone else handle campaign finance and reporting so that he wouldn’t know who contributed — people still often find out, he said.
“The optics of it are horrid,” Coker said.
Though advocates tout it as a model for other states, Arizona’s merit selection system isn’t without its critics. Some believe it goes too far in handcuffing the governor’s ability to choose the judges he wants. Others think the entire state should revert back to the direct election of judges.
Attorney Kory Langhofer, who serves as president of the Phoenix chapter of the Federalist Society, a conservative lawyers’ organization, said Arizona’s system makes judges too beholden to the State Bar and “opaque committees that, by and large, don’t represent the views of the people in that state.” Langhofer argued that the direct election of judges or a federal-style system in which the governor can appoint whoever he wants, subject to Senate approval, are superior systems.
“While partisan elections aren’t perfect, the decisions are made by the voters who necessarily reflect the values of the state,” he said.
Critics of merit selection don’t appear to be making much noise in Coconino County on the eve of its election. Opponents have not formed any kind of opposition campaign to Proposition 416.
Flagstaff attorney Gerald Nabours, who is running the campaign for Prop. 416 in Coconino County, said the issue simply isn’t controversial, and that merit selection has a lot of support among both Democrats and Republicans. Even current and former judges who owe their judgeships to direct elections have contributed to the campaign, he said.
Nabours is a member of the Commission on Appellate Court Appointments, which vets nominees for the Arizona Supreme Court and Arizona Court of Appeals, and said his experience with merit selection has convinced him that it’s a superior system.
“I have seen it firsthand. That’s one of the reasons I got involved in it, because I’ve seen firsthand what a great system it is,” Nabours said. “Being an attorney for 40 years in Coconino County, I‘ve seen what a poor system the election process is.”
After Yavapai County, Mohave and Yuma counties are the closest to hitting the population threshold for mandatory merit selection. The U.S. Census Bureau estimated that both Mohave and Yuma counties had about 205,000 residents in 2016.