Election Law Case Comment 123 Harv. L. Rev. 120

Relinquished Responsibilities


So if . . . it violates due process for a judge to sit in a case in which ruling one way rather than another increases his prospects for reelection, then – quite simply – the practice of electing judges is itself a violation of due process.

Republican Party of Minnesota v. White, 2002

These words were included in the Court’s opinion in Republican Party of Minnesota v. White not to endorse but to mock the idea that judicial elections violate due process. The constitutionality of judicial elections was not the issue before the Court in White; nor was this issue directly before the Court in Caperton v. A.T. Massey Coal Co., the topic of this Comment. Yet in both cases, and in others the Court has declined to hear, the lurking question that is being ignored is whether present-day judicial elections, with their untoward emphasis on campaign finances, can be reconciled with the due process guarantee of fundamental fairness.

White simply held that states that choose to elect judges may not prohibit judicial candidates from announcing their views on contested legal and political issues, but the decision has transformed state judicial elections, attracting the attention and resources of special interest groups and prompting a financial arms race. To critics who feared White’s impact, the facts underlying Caperton v. A.T. Massey Coal Co. represent those fears realized.