With ballots arriving in the mail and early voting starting this weekend people across Nevada will need to dig into some voter guides.
The Clark County ballot includes more than five dozen races for district, family and justice court judges. Just more than half of them are competitive.
“If you find the ballot bewildering it’s not you, it’s the ballot, because it asks an awful lot of you,” said Rebecca Gill, associate professor of Political Science at the University of Nevada Las Vegas. “People shouldn’t feel bad if it seems like this is really hard, because it is really hard.”
One of the reasons Clark County has so many judges on the ballot is because of the way the judiciary developed over time, Gill said.
“We haven’t subdivided the county into geographic regions for county judges,” she said. “That means the whole county is like one big district and since we need so many judges we end up with these ballots that are stuffed full of a whole lot of judges.”
Unlike congressional or local office candidates that are divided by districts and only show up on the ballot of those who live in those districts, everyone votes for the 32 district court and 26 family court races in Clark County.
A ballot flush with judges may even keep some people from voting at all, said Gill, and often result in “ballot roll-off” where voters simply will not complete their ballot and at times even skip important ballot questions — state constitutional amendments and statutory initiatives — at the end.
The question of how best to select judges has plagued lawyers and political scientists for centuries, but most states including Nevada have made their choice in favor of popular election.
The Nevada Constitution requires the state’s Supreme Court justices and District Court judges to be elected to 6-year terms. Attempts to move Nevada to an appointment system have all failed, including the last one, a 2009 legislative referred constitutional amendment which was rejected by voters.
“Voters like the idea of being able to elect their judges; it’s just the actual process of doing that is a really big drag,” Gill said. “They don’t want to have the right to vote for judges taken away but they also don’t really want to exercise that right.”
Nevada does however use an appointment system to fill judicial vacancies that is much like the system relied on exclusively in other states, called the Nevada Commission on Judicial Selection.
Open seats are publicly noticed, and all eligible lawyers are invited to apply. The Nevada Commission on Judicial Selection, a constitutionally created body, vets and interviews applicants, and then refers three names to the governor for consideration.
‘Work around the problem of elections’
“There is a way for people to work the system a little bit so a judge could retire early with the understanding that an appointment will be made. That’s one way to, in a way, work around the problem of elections because if you get someone appointed to a judgeship their odds of winning an election whenever they do have to run are increased because they can run as an incumbent,” said James Richardson, a professor emeritus of sociology and judicial studies at the University of Nevada, Reno. “It can happen and it has happened.
“It doesn’t always happen that people retire early just to make sure someone is put in as an incumbent,” Richardson added. “It’s a rare thing. What happens is that people leave because they fall ill or decide not to run for reelection. There’s not always a conspiracy going on.”
Appointments, however, can lead to a series of uncontested judicial elections, Richardson said.
“One of the interesting things about judgeships is that a lot of the time they don’t draw opponents. If you look at the ballot a lot of judges are running unopposed,” Richardson said.
In Clark County a dozen District Court, 11 Family Court, and two Justice Court seats are uncontested, and in Washoe County another dozen judgeships are unopposed.
In one extreme case in Douglas County, voters will be electing a judge in a contested election for the first time in more than 30 years.
District Judge Tod Young is facing lawyer Caren Cafferate-Jenkins, his first opponent since he was appointed to the District I seat in 2012 and the first time an incumbent has been opposed since 1986.
After serving 25 years unopposed on the Douglas County bench, District Judge Dave Gamble announced his retirement in 2012, two years before his term expired, leaving the appointment of a successor to then-Gov. Brian Sandoval from a list of applicants screened by a judicial selection committee.
Sandoval appointed Young who has served as a judge at the 1st District Court for the last eight years.
In another case, the last competitive election for Douglas County Department II was in 1996, nearly a quarter of a century ago, when attorney Michael Gibbons defeated attorney Robert Storey.
That seat has been held unopposed by Judge Thomas Gregory since he was appointed by Sandoval in 2015 after Gibbons was also appointed by Sandoval to the newly created Nevada Court of Appeals.
“Out of all the local attorneys who appear in this court regularly and the attorneys from other countries who appear in this court regularly, none of them have seen fit to run against me because they are satisfied with the fact they get fair hearings and decisions based on the law,” Young said.
Cafferate-Jenkins, a civil litigation attorney with more than 25 years of experience, argues if nobody runs against incumbents voters’ voices are effectively silenced.
“This is six years after he ran unopposed,” said Cafferate-Jankins. “Never had to run a race and he’s been on the bench for seven years.” Cafferate-Jenkins applied with the Commission on Judicial Selection in 2012 to fill Gamble’s seat. She said she has applied for an appointment seven times but has yet to make the cut, so now she’s running.
“There is a long-standing tradition of judges leaving their post near the end of their term and a commission of judicial selection selects a judge for the vacancy,” said Cafferate-Jenkins. “I think that’s an important thing for the people of Nevada to recognize, that they are denied a choice in smaller communities.”
For now, Nevada voters have, as UNLV’s Gill calls it, the “daunting” task of selecting all those judges who are on the ballots.
“If you have a group of like-minded friends, divide and conquer, because it’s going to take hours and hours and hours to try and research every individual race on your own,” Gill said. “I do this for a living and I can’t tell you how many hours of research I do in order to fill out my ballot.”
“It’s an overwhelming task. Do the best you can,” Gill said. “The only other thing I would say is maybe think about whether this system is really working.”