Last week, the Berkeley Institute of Government Studies poll found that over 60 percent of Californians believe that American democracy is in serious trouble. While we typically associate threats to democracy or the right to vote with states like Texas, Florida, Louisiana, and North Carolina, this time, it’s like a horror film, “The Call is Coming from Inside the House.” On Wednesday, the California State Assembly is considering a constitutional amendment to limit our almost century-old right to vote on the retention of California Supreme Court and appellate justices. It could go on the ballot in 2026 and, if successful, could make it harder to vote on Superior Court judges as well.
Under the California Constitution, the people elect the judges (who, at the Supreme Court and appellate levels, are called “justices.”) When there is a court vacancy, the governor appoints a judge or justice but only until the next election when the voters have their say on whether a Superior Court judge should be able to serve a six-year term and a Supreme Court or appellate justice a 12-year term. Assembly Constitutional Amendment 8 (ACA 8) would change that and “deem elected” Supreme Court and lower appellate court justices and cancel the election unless an undefined number of voters petition for one.
By turning over our right to elect justices to an undefined number of people, ACA 8 breaks an over 90-year-old commitment to Californians. When voters approved the present system in 1934, the official ballot argument promised, “Ultimate control would remain in the hands of the people.”
Currently, voters have little say or even input when a judge is appointed. The governor has almost complete discretion. Until Governor Newsom made members’ names public, California governors relied on secret committees largely composed of judges and lawyers to help make selections. Prior to the appointment, individuals the governor wants to nominate go before a specially selected panel of the State Bar that investigates, distributes surveys, and collects information on them for a confidential evaluation back to the governor. Supreme Court and appellate justice nominees must be confirmed by a different panel composed of the attorney general and justices on the Supreme Court and appellate court.
Californians know little about who our judges are.
As a result, Californians know little about who our judges are. While the same Berkeley poll found relatively high levels of trust in the judiciary, at least compared to other governmental institutions, a Stanford Law School analysis found, “it is difficult to conclude that the states’ judicial selection process deserves the credit.”
ACA 8’s author, Assembly Elections Committee Chair Gail Pellerin, is a former election administrator in Santa Cruz County. Her reasoning behind making it harder for voters to have a judicial election is to save money, particularly when almost all retention elections result in the justice returning to office. Democracy, however, is not measured solely in dollars and cents. Even if it were, there are any number of ways to make elections cheaper without canceling them and other places in local and state budgets to cut.
The new process that ACA 8 establishes for a retention election also has new costs. For example, San Francisco is in the First Appellate District, which is 400 miles long spanning 12 counties. Election departments in each of the counties will have to prepare signature petitions for each of the justices whose terms are up, provide them to interested citizens, and receive, count and certify them before voters can have an election. The same would be true in each of the 58 counties for Supreme Court elections.
If a low number of signatures is required to trigger an election, then the process will simply be more expensive and cumbersome than it is today and achieve the same result — a judicial retention election. If a high number of signatures is required, then voters may be shut out of the judicial selection and retention process entirely.
Some ACA 8 proponents warn that judicial elections jeopardize judicial independence or can be captured by politics. But it has been almost four decades since California had any serious challenges to the retention of Supreme Court or appellate justices. Taking away the people’s “power. . .of vetoing an appointment of the Governor” that we were promised in 1934 is too high a price. In fact, ACA 8 will make the average citizen dependent upon small groups with large resources to organize and petition in order to be able to have a vote.
Instead of ACA 8, California legislators should take the judicial appointment process out of its current darkness. When federal judges, who serve life terms, are nominated, questionnaires containing information about their qualifications, professional experience, and judicial records are made public. California voters do not currently see that information about our local judges but could if the legislature acted. In addition, legislators could direct the judicial branch to improve public access to court information and files (consistent with privacy) and provide funding to local courts, bar associations, civic groups, and others to educate the public about the role of judges, especially in the criminal and family courts.
The right to vote is no longer a right if it is dependent upon an unknown few to decide whether we have an election. ACA 8 weakens our democracy. Our legislators should reject it.
