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Trends in michigan supreme court elections 2000-2012.

ABSTRACT

This article explores various trends in Michigan Supreme Court elections from 2000 through 2012. Within the backdrop of the structure of Court elections, dimensions such as incumbency, electoral competitiveness, the role of parties, and campaign spending are examined. This study finds that while incumbents still retain some important advantages, incumbents are no longer automatically re-elected. Moreover, Supreme Court elections are becoming increasingly competitive, as the margins of victory have been reduced substantially in the most recent elections. Even though Supreme Court general elections are officially non-partisan, political parties play a major role, with a formal role in the nominations process, but also through independent expenditures and issue advertising on television. Interest groups and parties both have been outspending candidates in recent elections, and thus have added to the negative tone of Court campaigns. An overall trend of increased campaign spending has been found during the period investigated. In addition, a distinct difference in the level of electoral competitiveness and overall campaign spending was identified when comparing the 2000 through 2006 elections with the 2008 through 2012 elections.

INTRODUCTION

Research on campaigns and elections has tended to focus on Presidential and Congressional elections--elections for national office that capture the attention of the media, voters, and scholars alike. However, there has been a growing body of scholarship on state judicial elections in recent years (Bonneau 2007; Schotland 2007; Streb 2007, Bonneau and Hall 2009; Gibson 2012). Some of the interest in judicial elections centers on the larger, more normative, question of judicial selection in general. That is, advocates and scholars both have addressed the issues of which selection method (appointment, merit system, partisan elections or non-partisan elections) produces the best judges. While the issue of judicial selection is beyond the scope of this article, it is useful to note that a fairly large percentage of elected judges first were appointed. In 2010, one analysis indicated that 43 percent of all Michigan judges sitting at that time had first been appointed to a judicial position (Toy, 2010). Initial appointment is common for the Michigan Supreme Court as well. Including Macomb County Circuit Judge David Viviano's appointment by Governor Snyder to the Court in February 2013, four of the seven current Justices initially were appointed to the Supreme Court.

Historically, all judicial elections have been comparatively "low information" elections. That is, little is known about the candidates running for these offices, as there is relatively little earned media attention given to these races and voter interest or knowledge about the campaigns is quite low. In the past, Supreme Court candidates also raised and spent relatively small amounts of money on paid media. Even though scholars have identified a "new style" of campaigning in more recent judicial elections that has brought more spending, negative advertising, and visibility to these elections (Rock and Baum 2010), most judicial elections continue to be relatively unimportant elections for many voters. Since candidates for the Michigan Supreme Court run in non-partisan general elections, voters also don't have party label information for Court candidates. In fact, some judicial elections scholars have argued that partisan court elections provide more useful information to voters than non-partisan election (Bonneau and Hall 2009). Voters may vote for lower-level partisan offices even though they know little or nothing about the candidates simply because they vote a straight-party ticket, thus capturing all partisan candidates running in that election.

The same cannot be said for those running in non-partisan elections. Voters must specifically vote for these offices, and without much information about these candidates and their qualifications or positions on issues, some voters simply do not vote on this part of the ballot, referred to as ballot roll-off. For purposes of this study, ballot roll-off is calculated as the percentage of voters who did not vote in a Supreme Court race bur voted for the highest office on the same ballot (President, Governor). Roll-off can be substantial for judicial races. When comparing the number of voters who voted for the highest office in a given election year, ballot roll-off is typically about 20-30%, and roll-off tends to be higher in non-partisan races (Bonneau and Hall 2009, 23-26). Indeed, ballot roll-off for Michigan's Supreme Court elections appears fairly typical. While it is more complicated to measure roll-off for multimember races (with candidates vying for two positions), roll-off can be calculated for a partial-term election or when there is a single seat up for election. In those cases, ballot roll-off in Michigan Supreme Court elections has been between about 25% and 30%.

Typical of low information races, voters simply do not know much about Supreme Court candidates, even as Election Day approaches. Fairly large percentages of voters remain undecided, and as a result, may simply not vote for these offices. In Michigan, a 2012 survey of voters conducted about one week prior to Election Day found that over half of respondents (55.2%) still were undecided about which candidate they would support (Glengariff Group 2012). An EP1C-MRA survey of voters conducted in late October 2008 revealed that 57% of voters were still undecided about the candidates in a hotly contested race between Chief Justice Clifford Taylor and Diane Hathaway (EPIC-MRA 2008).

Within that general environment of state Supreme Court elections, this investigation seeks to trace recent trends in Michigan Supreme Court elections. There are several factors that likely influence Supreme Court elections in the state, including the overall structure of the elections themselves, the influence of incumbency, how competitive these elections have been, the role of political parties, and the effects of campaign fund-raising and spending in these races. This article seeks to analyze each of these factors on elections held between 2000 and 2012.

THE STRUCTURE OF SUPREME COURT ELECTIONS

The structure of the state's Supreme Court elections comprises an important part of the context for each of the elections since 2000. Michigan's seven Supreme Court justices serve 8-year terms. Two of the seven seats are up for election in a staggered format every two years, with a single seat up once every eight years. No more than two full-term seats can be up for election every two years, but in some election years, a candidate who was appointed must run in a partial term election in the next election, then run again to complete the original unexpired term of office (MCL 168.404). Therefore, some election years may have three seats up for election, with one or two designated as partial-term seats (as occurred in 2000 and 2012, for example). It has been common for sitting Supreme Court Justices to leave their position prior to the completion of their term. Such vacancies allow the governor to appoint a new Justice, which gives the appointee at least some incumbency advantage when the Justice runs for election. Those Justices who are appointed must first run for partial term seats in the following election. Rarely does a Michigan Supreme Court Justice complete their full term but not run for re-election, which would create an open seat election (i.e., no incumbent running). However, an open seat contest did occur in 2012, when Justice Marilyn Kelly finished out her term, but could not run again because the Michigan Constitution prohibits Court candidates from running again once they've reached the age of 70 (Michigan Constitution, Article VI, Section 19).

An incumbent Supreme Court Justice who wishes to seek re-election can gain access to the ballot by filing an Affidavit of Candidacy with the Secretary of State not less than 180 days prior to the expiration of his or her term of office (Michigan Constitution, Article VI, Section 2; MCL 168.392a) Non-incumbent candidates are nominated at state party conventions in early August (for minor parties) or by early September (for major parties). All candidates must be registered voters in Michigan and licensed attorneys in the state (MCL 168.391).

Michigan is an interesting case to study because it elects its Supreme Court justices in a unique way compared to all other states. Candidates run in a general election on a non-partisan ballot, but are first nominated at state parry conventions. Ohio is the only state that is even similar to Michigan, in that it also holds non-partisan general elections for its Supreme Court justices, but it holds party primary elections to nominate their candidates rather than by convention. Using the structure of Michigan Supreme Court elections as a context, I investigate trends in elections beginning in 2000, looking at electoral competitiveness and the roles played by incumbency, political parties, and campaign spending.

THE INCUMBENCY ADVANTAGE

Early literature on judicial elections has noted the relative advantages--and subsequent electoral success--that incumbent judges have when running for re-election. In the more distant past, a fairly large number of incumbent judges in the U.S. rarely saw any opposition when they ran for reelection (Volcansek 1981; Dubois 1984). However, more recent studies of incumbency in judicial elections have tempered these early views. For example, one investigation of all U.S. state Supreme Court races between 1990 and 2000 found that about 85% of all incumbents were re-elected (Bonneau 2005a, 823).

Voters use what information is available to them when voting, relying on low-cost information when available, such as candidate party affiliation or incumbency status designated on the ballot itself (Klein and Baum 2001). For upper-ballot races such as for President or Governor, there is considerable earned media attention and paid advertising, which provide much more information to voters. These also are partisan races, so voters have additional information regarding partisan affiliation, including when they see the candidate's party designation on the ballot. However, for lower-ballot races, there tends to be very little earned media coverage of these contests, so voters don't learn much about these races from the news. Since many previous races also tended to raise and spend relatively low amounts of campaign money, these contests also did not communicate with voters through lots of paid TV advertising or other means.

Therefore, in many judicial elections, voters simply do not have much information about the candidates or issues prior to entering the voting booth on Election Day. The ballot may provide limited information about candidates. In non-partisan races, ballot information is minimal. The state of Michigan, among a few others, gives incumbent judges a potentially major advantage when they run for re-election. The Michigan Constitution provides that "[T]here shall be printed upon the ballot under the name of each incumbent justice or judge who is a candidate for nomination or election to the same office the designation of that office" (Article VI, Section 24). Other states allowing for incumbency status on the ballot include California, Georgia, and Oregon (Baum 2003). The fact that incumbent Supreme Court justices have "Justice of the Supreme Court" listed on their ballot potentially gives them a huge advantage over challengers, especially in low information races where voters otherwise have little information about the candidates when they enter the voting booth. Thus, the incumbency designation can be an important voting cue in low-information races, especially in non-partisan elections.

Indeed, only five incumbent Supreme Court Justices that have run for reelection between 1960 and 2000 in Michigan have lost. In the 1960s, three incumbents (Otis D. Smith, Paul Adams, and Michael D. O'Hara) lost. In 1976, Justice Lawrence Lindemere (who had been appointed in 1975) lost to Blair Moody, Jr. Justice Lindemere was the only incumbent defeated in the 1970s, while Dorothy Comstock Riley defeated incumbent Thomas G. Kavanagh in 1984.

Incumbency retained its advantages during the 1990s and into the new century. However, two incumbents lost their bid for re-election in the decade of the 2000s. In 2008, incumbent Chief Justice Clifford Taylor lost to challenger Diane Hathaway in an expensive and controversial race. This election became notorious for the "sleeping judge" ad that the state Democratic party aired against Taylor (where it was alleged that he had fallen asleep during a court case), but some research has suggested that Hathaway's victory came largely from the boost she received from the "Obama wave" in 2008, as well as specific support candidate Obama gave to Hathaway through robo-calls and coordinated campaign literature (Klemanski and Walters 2011).

In August 2010, Democratic Governor Jennifer Granholm appointed Alton Davis to the Court to replace Elizabeth Weaver. Even though Weaver had been a Republican nominee, she was a moderate and had several disagreements with Republicans on the Court. She chose to leave the Court in August 2010 so that Democratic Governor Granholm (whose own term was ending that year) could make the appointment. However, newly-appointed Justice Davis did not have much time to campaign. He was from northern Michigan, and did not have much name recognition across the population centers of the state. Davis lost to Mary Beth Kelly, so served on the Court for only about four months. Table 1 shows which incumbents were initially appointed (and the appointment year) and illustrates the relative success that incumbents have had in recent Michigan Supreme Court elections between 2000 and 2012.
TABLE 1: INCUMBENCY AND MICHIGAN SUPREME COURT ELECTIONS,
2000-2012

Year  Seats Up for   Incumbents Running   Incumbent % of Vote
      Election      for Reelection (date
                         appointed)

2000  1 Full        Full Term--Taylor     Taylor 52.9%
                    (appt 1997)

      2 Partial     Partial--Markman      Markman 56.1%
                    (appt 1999)

                    Partial--Young (appt  Young 51.7%
                    1999)

2002  2 Full        Weaver                Weaver 31.2%

                    Young (appt 1999)     Young 30.7%

2004  2 Full        Marilyn Kelly         Kelly 35.0%

                    Markman (appt 1999)   Markman 27.4%

2006  2 Full        Cavanagh              Cavanagh 59.8%

                    Corrigan              Corrigan 33.9%

2008  1 Full        Taylor (appt 1997)    Taylor 39.5% (beaten
                                          by Hathaway)

2010  2 Full        (Young appt 1999)     Young 27.9%

                    (Davis appt 2010)     Davis 19.3% (beaten
                                          by M.B. Kelly)

2012  2 Full        Open seat             McCormack 23.6%

                    Full Markman (appt    Markman 23.1%
                    1999)

      1 Partial     Partial--Zahra (appt  Zahra 49.5%
                    2011)

Source: Michigan Department of State, Previous Election
Information


Incumbent Michigan Supreme Court Justices have other advantages when running for re-election. One advantage is that an incumbent Justice can file an Affidavit of Candidacy six months prior to Election Day. Incumbents are better able to organize their campaign, raise money, and meet with voters Challengers typically form candidate committees early in an election year so they can begin raising money. However, challengers are officially nominated at the state party conventions, which meet in late September. This late nomination date gives challengers very little time to raise money and mount a full campaign, andis a major reason why incumbent candidate committees raise so much more money than challengers (see campaign finance discussion below).

In order to address that disadvantage, parties have begun to give their challenger candidates more of a head start than the late September nomination provides. The Michigan Democrats have had "spring endorsement" conventions, in which they give their endorsement of candidates for the upcoming November election.

There is no doubt that Michigan Supreme Court Justices have some incumbency advantages when running for re-election. They have an incumbency ballot designation that is a potentially huge advantage in a low-information race. Not all states provide this designation for their Supreme Court incumbents (for example, North Carolina or Wisconsin). For the most part, incumbent Supreme Court Justices have fared very well when running for re-election. However, two incumbent Justices have lost their bids for re-election in 2008 and 2010. Assessing the trends in competitiveness of Michigan Supreme Court elections may help us understand the relative effects of incumbency and other factors in these races.

ELECTORAL COMPETITIVENESS

Previous literature investigating state Supreme Court elections has noted both an incumbency advantage over the years, but some scholars also have identified a growing competitiveness in these races in more recent contests (Bonneau 2005a). This trend in competitiveness appears to be occurring in Michigan as well. This study identifies the number of incumbents defeated and uses the winning margin of victory as indicators of electoral competitiveness. When considering the elections between 2000 and 2012, there appears to be a distinct change in the level of competitiveness between the 2000 through 2006 period and the 2008 through 2012 period. For example, for the nine elections held between 2000 through 2006, no incumbents were defeated. For the six elections held from 2008 through 2012, two incumbents were defeated.

Moreover, the average margin of victory has grown much closer when comparing these two sets of elections. For the elections from 2000 through 2006, the average margin of victory was 16.9%. The largest margin of victory during this time was 28.6%, and other than a 6.8% margin of victory in 2004, all victory margins were over 13%. Electoral competitiveness was much different beginning in 2008. First, the incumbent Chief Justice (Clifford Taylor) lost his election--by almost 10%. This is believed to be the first election defeat of an incumbent Chief Justice in Michigan's history. Second, only one of the six races held between 2008 and 2012 had a margin of victory higher than 10% (at 10.6%), and that too, was a race in which an incumbent was defeated. The lowest margin of victory was 1.5%. When taking all of these elections (including those where the challenger won), the average margin of victory between 2008 and 2012 was 6.7%, less than half of the victory margins for the 2000 through 2006 elections. Competitiveness was the most intense in the 2012, where only about 2 percent separated the vote totals of the top four candidates, and only 1.5 percent separated the vote totals of a winning candidate and a losing candidate. Table 2 illustrates the winning margin of victory in court elections during the 2000 through 2012 period. The margin of victory in multimember elections is calculated as the difference between the two winners and the losing candidate receiving the most votes.
TABLE 2: ELECTORAL COMPETITIVENESS IN SUPREME COURT ELECTIONS,
2000-2012

Year  Candidates (* Denotes winner) Winning Margin of Victory

2000  Taylor */M. Robinson                               14.1%
      Markman */E. Thomas                                18.1%
      Young * /E. T. Fitzgerald                          13.4%
2002  Weaver */ M. Drake                                 17.2%
      Young * /M. Drake                                  16.7%
2004  Kelly * / D. Thomas                                14.4%
      Markman * / D. Thomas                               6.8%
2006  Cavanagh */ Beckering                              28.6%
      Corrigan * /Beckering                              22.7%
2008  D. Hadiaway */Taylor                                9.8%
2010  Young */Davis                                       8.6%
      M.B. Kelly */Davis                                 10.6%
2012  McCormack */Kelley (a)                              2.0%
      Markman */ Kelley                                   1.5%
      Zahra */Johnson                                     7.8%

Source: Michigan Department of State, Previous Election Information

(a.) Open seat; no incumbent running


The increasing competitiveness of Michigan Supreme Court elections is associated with increased party and interest group spending, as will be discussed later. It also may be useful to look at the influence of gender on the competitiveness of these court races as well. Some research has sought to identify the impact of gender on judicial elections (Reid 2000; Williams 2008). Michigan voters have demonstrated support for female Supreme Court Justices for a number of years. In 1972, Mary Coleman (Republican-nominated) became the first female to be elected to the Michigan Supreme Court. At that time, fewer than ten states had a female Supreme Court member (Allen and Wall 1993). Patricia Boyle's appointment followed that, with Dorothy Comstock Riley (1984), Elizabeth Weaver (1994), and Marilyn Kelly (1996) also subsequently elected to the Court by Michigan voters. Boyle and Kelly had Democratic party ties, while Riley and Weaver had Republican party ties. Michigan was one of the earliest states with a majority of female Court members, which occurred after the 1996 elections, but that female majority ended shortly after when Justice Riley left the court in 1997 for health reasons.

Michigan Democrats have nominated female Supreme Court candidates in virtually all recent campaigns. Aside from Justice Alton Davis running for re-election in 2010, the Democratic party has nominated all female candidates for the Supreme Court since 2008. While this strategy has not successfully elected a female candidate in every case, gender could have played a role in Diane Hathaway's upset victory over Clifford Taylor in 2008, and the closeness of the races since 2008 suggest that gender may be playing a role in the increasing competitiveness of these recent elections.

PARTIES AND GROUPS IN SUPREME COURT ELECTIONS

Despite the official non-partisan nature of general elections for the state's Supreme Court seats, scholars for years have argued that parties and partisanship on the Michigan Supreme Court have been prominent features in their general elections (Champagne 2001; Dubois 1979; Ulmer 1962). Justice at Stake and the Brennan Center, advocacy groups that track spending in Supreme Court races, also consider Michigan a partisan state (Sample et al. 2010, 6-7).

The role of political parties in Michigan Supreme Court elections can be found in several party activities. The importance of initial appointments has already been noted, and these appointments have strong partisan overtones, as can be seen in 1982, the late 1990s, and 2010. For the period under investigation in this article, the immediate backdrop to the 2000 election was Governor John Engler's appointment of Clifford Taylor, Robert Young, and Stephen Markman to the Court in the late 1990s. Along with Justice Maura Corrigan, who was elected in 1998, these Justices often were referred to as the "Engler Gang of Four." They comprised what was considered to he a conservative majority on the Supreme Court, and all had affiliation with the Federalist Society, an organization that describes itself as "a group of conservatives and libertarians interested in the current state of the legal order" (Federalist Society). The division among Court members can be seen as both ideological, as it relates to judicial philosophy, and partisan, because partisan differences often become the proxies in election battles for Court seats. For example, campaign ads, press releases, and other communications by state Democratic party officials often emphasize how Republican-endorsed candidates for the Court "have sided with insurance companies" or "worked to deny benefits to a cancer patient" (Michigan Democratic Party 2012). Republican party communications have focused on the conservative approach of their candidates, which the party argues is an antidote to "liberal activist judges" endorsed by the Democratic party (Michigan Republican Party 2010).

At the very least, parties have an official role in nominating Court candidates at their state conventions held about two months prior to Election Day (MCL 168.392). While the party leadership presumably has an interest in recruiting the strongest candidate, individuals who are eligible for office can recruit themselves. This has led to some division within the party about which candidates to nominate. For example, in the 2008 nomination process, two candidates emerged at the convention--Deborah Thomas (who had been nominated in 2004) and Diane Hathaway. The nomination vote was fairly close, with Hathaway beating Thomas by about 300 votes out of almost 3,100 votes cast (Associated Press 2008).

Partisanship can play yet another role in the non-partisan general elections for the Supreme Court. In 2008, partisanship emerged as an importance influence on the Taylor-Hathaway Court race in two ways. The "Obama wave" election brought many Democrats into office--and many voters supported the party's candidates that year. But more specifically, the Obama campaign sought to support Diane Hathaway's candidacy. The party sponsored robo-calls of Barack Obama reminding potential voters to vote for Hathaway. The Obama campaign in Michigan began talking about "turning the ballot upside down" so that Diane Hathaway was a voter's first consideration. As Clifford Taylor later (2010) recounted
  I think my defeat was the result first because of the Obama tide
  in 2008. But in addition, the party and the Obama campaign were
  very effective in tying Obama to Hathaway. They made it seem as
  though it was not an Obama-Biden ticket, bur rather Obama-Hathaway.


The same could be said of 2010, only with this election, a "Republican wave" occurred. With this wave, both Republican-endorsed candidates were elected, and Republican Mary Beth Kelly unseated the Democratic parry's incumbent, Alton Davis. Kelly not only beat Davis by a 29.9% to 19.3% margin, but she garnered the most votes of all candidates, even beating incumbent Robert Young by 2%. While Supreme Court candidates appear to benefit somewhat from partisan wave elections, the partisanship of the campaigns does not seem to translate fully to Michigan voters.

One way to look at the possible role of partisanship is to identify the "base party vote" in an election. For purposes of this study, a statewide, partisan, but low-information contest would best serve the investigation. A statewide race more closely would match with the Supreme Court statewide elections. A low-information but partisan race would allow us to see how voters might vote for candidates they know nothing about--except for the party label information on the ballot. Therefore, such an analysis would be able to track what could be called "behavioral partisans," rather than relying on surveys in which respondents self-report their party identification. The statewide elective office that best meets these conditions is the State Board of Education, because it is both partisan and a very low-information race. A low-information partisan election typically finds that voters will tend to vote their party affiliation in most cases, because they know nothing about the candidates or the issues. Two seats are up for the State Board every two years. Since we are looking for the most solid partisan voter support statewide, the party's candidate with the lower vote total of the two candidates is used. Table 3 shows the number of seats that each party's lower-scoring State Board of Education candidate received for elections 2000 through 2012.
TABLE 3: STATE BOARD OF EDUCATION VOTE TOTALS, 2000-2012

Year  Republican Party  Democratic Party   Difference
          Candidate           Candidate

2000         1,539,204         1,864,208  +Dem 325,004
2002         1,284,237         1,243,622   +Rep 40,615
2004         1,811,131         1,954,648  +Dem 143,517
2006         1,409,859         1,662,989  +Dem 253,130
2008         1,509,652         2,279,423  +Dem 769,771
2010         1,375,968         1,140,976  +Rep 234,992
2012         1,716,711         1,919,047  +Dem 202,336

Source: Michigan Department of State, Previous Election
Information.


As they affect Michigan Supreme Court elections, two conclusions emerge from a review of this table. First, if partisanship was communicated completely to voters who would always vote in a partisan way, Democratic parry-endorsed Supreme Court candidates would almost always win (the only exceptions would be 2002 and 2010). Second, there likely is some partisanship that is communicated to voters. The vote totals from the 2008 State Board race suggest that the Democratic party Court candidate should win easily, and in fact, a relatively unknown and under-funded Democratic party-endorsed challenger beat the incumbent Chief Justice by almost 10%. The figure from 2010 shows the biggest Republican advantage during the 2000 - 2012 period, so it is not surprising that both Republican-endorsed candidates won in 2010, defeating a Democratic-endorsed incumbent.

Political parties are active in non-partisan general elections for the Court in one additional and substantial way. Parties have been extremely involved in airing advertisements--especially TV ads, since 2000. These advertisements can be costly, and in many elections, parties are spending as much or more money than candidates do for campaign communications. Trends in campaign spending are examined in the following section.

CAMPAIGN FUNDRAISING AND SPENDING

A number of judicial election scholars have investigated the role of money in state Supreme Court elections. This earlier research has focused variously on the effects of campaign spending on: the increasing costs of judicial campaigns (Schotland 2001); electoral competition and outcomes (Marion et al. 2005; Bonneau 2007); factors influencing campaign spending (Bonneau 2005b); public financing of judicial elections (Kotey 2005; Esenberg 2010); and the effects of campaign money on judicial decisionmaking (Cann 2007; McCall and McCall 2007). This section seeks to summarize the overall trends in Supreme Court spending, review the fundraising experiences of incumbents and challengers, and to identify the roles played by political parties and outside groups in court campaign financing.

One observation about campaign spending and Michigan Supreme Court elections is that considerable amounts of money have been expended in these races, especially since 2000. The advocacy group Justice at Stake tracks campaign spending in state Supreme Courts, and their research has found that Michigan is easily in the top ten states for overall spending on Court races (Sample et al. 2010). In its studies of Supreme Court elections, the Brennan Center found that Michigan was the fifth highest-spending state in the 2008 election cycle, and spent the most of any U.S. state in its 2010 and 2012 Supreme Court elections (Brennan Center for Justice 2012).

As with all candidates for public office, the ability to communicate with voters is crucial for Michigan Supreme Court candidates. Since the Supreme Court race is a statewide election, substantial resources are required to communicate to voters across a state that is large both in geography and population. The high costs associated with campaigns presents a challenge to Supreme Court candidates because they are not only competing against each other for campaign contributions, but also against upper-ballot candidates such as those running for Governor, U.S. Senate, or U.S. President.

In our earlier discussion, it was noted that incumbent Supreme Court candidates have several potential advantages over challengers. In past elections, incumbents tended to have considerable advantages over challengers in raising and spending campaign funds. Campaign money is particularly crucial in low-information races, because there is very little earned media coverage of these campaigns, and candidates must find other ways to gain name recognition and communicate their campaign messages to voters. One trend in campaign money revealed by an investigation of candidate committee receipts is that Michigan Supreme Court elections have become fairly expensive over the past several elections. The hotly contested race in 2000, with three separate elections (one full-term, two partial terms), saw five out of the six major party candidates raising over $ 1 million each. In 2008, incumbent Chief Justice Clifford Taylor raised $1,937,759 - a record amount for a Michigan Supreme Court race--although he still lost to challenger Diane Hathaway. Table 4 compares candidate committee spending between incumbents and challengers for the elections held between 2000 and 2012.
TABLE 4: CANDIDATE COMMITTEE SPENDING, MICHIGAN SUPREME COURT,
2000-2012

Year  Incumbent   Challenger   Average     Average     Percent
      Spending    Spending     Incumbent   Challenger  Avg.
                               Spending    Spending    Challenger
                                                       of Avg.
                                                       Incumbent

2000  Taylor      M. Robinson  $1,289,890  $1,018,214         79%
      $1,332,975  $1,195,683

      Markman     E. Thomas
      $1,244,502  $1,108,420

      Young       E.
      $1,292,192  Fitzgerald
                  $750,539

2002  Weaver $    M. Drake $    $ 451,427    $ 28,755          6%
      280,440     45,961

      Young $     J. Brennan
      622,413     $ 11,549

2004  M. Kelly $  D. Thomas $   $ 725,389    $ 45,327          6%
      728,800     68,374

      Markman $   B. Zahra $
      721,978     22,279

2006  Corrigan $  Beckering $   $ 498,043    $ 45,629          9%
      679,286     61,269

      Cavanagh $  Shulman $
      316,799     29,989

2008  Taylor      Hathaway $   $1,937,759   $ 752,736         39%
      $1,937,759  752,736

2010  Young $     Morris $      $ 915,721   $ 382,304         42%
      843,254     346,346

      Davis $     M.B. Kelly
      988,187     $ 418,262

2012  Markman $   C. Kelley $   $ 808,787   $ 261,424         32%
      768,273     303,592                           *

      Zahra $     S. Johnson
      849,301     $ 219,255

Source: Michigan Department of State, Campaign Finance Disclosure

* 3 seats were up in 2012, including 1 open seat (won by Bridget
Mary McCormack, whose receipts totaled $636,237; 4th place
candidate Colleen O'Brien spent $549,682)


In most cases, incumbents had substantial campaign finance advantages, with only the 2000 Taylor-Robinson contest even close with respect to money spent. In the elections up through 2006, challengers spent less than 10 percent of what incumbents were able to spend on average. The more competitive elections of 2008 through 2012 saw the gap closing between incumbents and challengers, but the difference was still fairly substantial, as challengers spent only about one-third of the amounts spent by incumbents on average.

In addition to the candidates themselves, other groups have become quite active in Michigan Supreme Court campaign spending. For example, political parties have supported their candidates through independent expenditures. By law, these expenditures are used to support or oppose a candidate, but cannot be coordinated with or directed by a candidate (Michigan Department of State, Independent Expenditure Report). These "uncoordinated expenditures" by political parties have varied to a degree (low expenditures in the mid-term elections of 2002 and 2006), but have averaged about $1 million per election for the seven elections between 2000 and 2012.

In addition to party activity, interest groups such as the Michigan Chamber of Commerce and the Michigan Association of Realtors have been active in supporting Republican-endorsed candidates in Supreme Court elections, in large part centered on tort reform concerns. Conservative interests sought to counter what was regarded as "pro-plaintiff' activist decisions by liberal or Democratic party-dominated Courts. State Supreme Court elections have also become "nationalized" to a degree, with national-level organizations such as the National Association of Manufacturers and the U.S. Chamber of Commerce spending considerable amounts in state Supreme Court races since 2000 (Sample et al. 2010, 38). Interests largely supporting Supreme Court candidates considered to be more pro-plaintiff, such as trial lawyers and labor unions, have tended to organize more at the state level and have tended to support the Democratic party-endorsed candidates.

Regardless of organizational pattern, spending by groups has largely come through issue advertising on TV. Federal and state campaign finance laws both make a legal distinction between activities considered to be "express advocacy" (that use language such as "vote for," "vote against," or "elect") and "issue advocacy" (that focus on an election issue or candidate characteristic, but do not expressly advocate for a candidate). Because issue ads do not expressly advocate for or against candidates, Michigan law does not require that the money spent: he reported to the states campaign finance disclosure system. Also, since this spending activity lies outside disclosure rules, those who make contributions to groups sponsoring issue ads-and the amounts contributed--are not reported to the state. Thus, there are no limits on this spending. In the early 2000s (again with the exception of the 2000 election), issue ad spending by parties or groups tended to be about the same amounts as what candidate committees were spending on their campaigns. Spending for issue ads increased somewhat in 2008, and then became three to four times more than what candidate committees were spending on their entire campaigns in 2010 and 2012.

But the use of issue ads themselves in Supreme Court races has its critics. Some observers believe that these ads do not meet the issue advocacy standard when they are a part of Court races. As Rich Robinson, Executive Director of the Michigan Campaign Finance Network has indicated (2013):
  Authentic issue advertising is an effort to move the viewer
  to contact a public official who can act on a matter--in
  other words, grassroots lobbying. In Michigan, judges are
  not lobbyable officials. Therefore, there is no such thing
  as authentic issue advocacy in a judicial campaign. All the
  ads are the functional equivalent of express advocacy.


A related aspect of outside group spending on TV' ads has been the tone of the ads themselves. Justice at Stake found that in the 2008 elections, an overwhelming percentage of the attack ads aired in all Supreme Court elections were sponsored by interest groups, followed by parties, and with a small percentage of those ads sponsored by candidates. Of the positive (or "promote") ads that aired during the 2008 elections, an overwhelming percentage were sponsored by candidates, with some sponsored by groups, and almost none sponsored by parties (Sample 2010). As groups and parties begin to spend a greater percentage of the overall amount of money spent in campaigns, it is likely that Court campaigns will become increasingly negative. Table 5 presents a campaign finance summary for Supreme Court races, including the percentage of overall spending by candidate committees compared to other groups.
TABLE 5: OVERALL CAMPAIGN SPENDING, MICHIGAN SUPREME COURT,
2000-2012

Year   Candidate   Independent     TV Issue        Total         % of
      Committees  Expenditures          ads                   overall
                                                          Spending by
                                                           Candidates

2000  $6,824,311    $1,587,829   $7,500,000  $15,912,140          43%
2002    $964,342       $27,408   $1,020,000   $2,011,750          48%
2004 $1,544,278      $694,700   $1,377,000   $3,615,978          43%
2006  $1,087,344        $5,223     $844,500   $1,937,067          56%
2008  $2,690,495    $1,012,000   $3,804,000   $7,506,495          36%
2010  $2,596,049    $2,485,885   $6,295,000  $11,376,934          23%
2012  $3,442,267    $1,142,580  $13,847,619  $18,432,466          19%

Sources: Michigan Campaign Finance Network; Michigan Department of
State, Campaign Finance Disclosure


The table above illustrates both the increases in overall campaign spending as well as the decreasing percentage of overall money spent by candidate committees compared to other groups. As with the other spending data, the 2000 election runs counter to the general trends. This is in part due to the fact that three seats were up for election that year, so it is understandable that total amounts of money were higher than elections in which the campaign was for only one or two seats.

One concern raised about the influence of parties and groups in Supreme Court elections is the possible influence these interests might ultimately have on judicial decision-making. Despite the non-partisan nature of Michigan Supreme Court elections, questions have been raised about the partisan nature of Court decisions. A 2008 University of Chicago study found that the Michigan Supreme Court ranked last among all state Supreme Courts on what the study's researchers called "independence." By their definition
  Independence refers to the judge's ability to withstand partisan
  pressures, or disinclination to indulge partisan preferences,
  when deciding cases. Our measure of independence gives a judge
  a high score if he is more likely to vote with opposite-party
  judges and a low score if he is more likely to vote with
  same-party judges. (Choi et al. 2008, 10)


In other words, the Michigan Supreme Court was considered to be the most partisan in its decision-making of any Supreme Court in the U.S., including those states whose members are elected by partisan election.

CONCLUSIONS

This investigation of recent Michigan Supreme Court elections has revealed several important trends and characteristics. The structure of Michigan Supreme Court elections gives incumbents a built-in advantage because Michigan law gives them incumbency status on the ballot. This is a substantial potential advantage, especially in elections where voters otherwise do not have much information about the candidates or the issues. Incumbents also have tended to raise and spend more money, although outside group spending has emerged as an increasing trend in recent elections too.

While incumbents enjoy some advantages, one trend in court elections has been the increased level of competitiveness that has occurred in the most recent elections. Compared to the 2000 through 2006 elections, where victory margins were in the double digits and no incumbent was defeated, the victory margins 2008 through 2012 elections have been in the single digits and two out of the five incumbents running for re-election in those years were defeated.

Another trend has been the increasing campaign spending activity of political parties in these officially non-partisan general elections for the Supreme Court. Political parties in Michigan have been involved in the court races in the past (by recruiting and nominating candidates and through some electioneering activities). However, the parties have become more central in the general election since 2000, especially through independent expenditures and TV advertising.

This investigation traced campaign spending for Michigan Supreme Court elections beginning in 2000. In that first election, three seats were up, and the race had strong partisan and ideological overtones. As a consequence, the candidate committees raised and spent a record amount (at that time). But the explosion of money spent on TV ads by parties and groups for the court races was the beginning of what has become a major trend in Michigan Supreme Court elections. The larger trend of increased overall campaign spending for the Supreme Court races is an important part of this analysis. In addition, the spending trend shifted substantially beginning in the 2008 election. The 2008 election saw spending increase across all categories (candidates, independent expenditures, issue TV ads) compared to all previous elections except 2000. Spending in the 2008 election was in the top five amounts spent among all Supreme Court races in the U.S. that year. The election in 2012 in Michigan saw the most campaign spending for state Supreme Court seats of any state in the nation (Michigan Campaign Finance Network 2012).

Campaign spending by candidates as compared to parties and groups also shows a clear trend. Candidate committee spending as a percentage of all spending hovered around 50% for elections from 2000 through 2006 (with a low of 43% in 2000 and 2004 to a high of 56% in 2006). Rut candidate spending dropped compared to other group spending beginning in 2008. In the past two elections, candidate spending was closer to 20% of overall spending--outside groups are becoming a more prominent feature of Supreme Court elections.

In the final analysis, two major trends stand out. One is a broad trend that covers all elections between 2000 and 2012, showing increasing overall campaign spending and increased spending activity by groups other than candidates. But within that overall trend is an identifiable shift in virtually all dimensions investigated for this study. The experiences of the 2000 through 2006 election period are substantially different from those occurring between 2008 and 2012. Electoral competitiveness, serious challenges to incumbents, overall campaign spending, and spending by outside groups all have increased substantially beginning in 2008, as compared to the 2000 through 2006 elections.

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JOHN S. KLEMANSKI

Oakland University
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