Analysis: Clear The Bench Colorado Impact on Judicial Retention
Since the founding of Clear The Bench Colorado – the state’s only active judicial accountability organization, and only consistently reliable source of information on the state judicial branch – six years ago, spearheading a “do not retain” campaign in 2010 against the then-reigning “Mullarkey Majority” on the state supreme court, both supporters and opponents of judicial accountability have speculated on CTBC’s impact on judicial retention rates in Colorado elections.
Recently, a meeting of the “official” State Commission of Judicial Performance discussed the “numbers and percentages of retained judges over the years.” Deputy Director Daniel Souza, explaining a few of the dips in retention rates in recent years, attributed these to the “Matt Arnold Syndrome.” Interestingly, although the Commission has chartered several studies and surveys on judicial retention rates in Colorado elections, they have refused to release those to the public.
After failing to receive requested data from the Commission (notably, the Colorado Judicial Branch declared itself “exempt” from the Colorado Open Records Act, CORA, pursuant to the 2012 Gleason v. Judicial Watch ruling by Colorado Court of Appeals Judge Alan Loeb), Clear The Bench Colorado commissioned a study on judicial retention rates in Colorado over the past decade – and the results are quite interesting.
The numbers do speak for themselves. From 2002-2008, the average retention vote for a statewide judge (Appeals or Supreme Court) was 71.72%. Since the founding of Clear The Bench Colorado in 2009, the average statewide retention vote has been 67.60%, with the most significant change (63.44%) happening in the year of Clear The Bench Colorado’s greatest activity and media exposure, 2010. (see Tables 1 & 3)
Clear The Bench Colorado was most active in 2010, with some significant earned media attention and a statewide campaign focused in particular against four (then three, when Chief Justice Mullarkey chose to “retire” rather than face the voters) Supreme Court Justices who regularly violated the Colorado Constitution. Clear The Bench Colorado traveled the state educating voters on judicial retention elections. Additionally, 2010 saw a well-funded counter campaign against Clear The Bench Colorado, which has been dormant after facing legal challenges for violating the state’s campaign finance laws. 2010 produced an average 12.85% reduction in Supreme Court retention votes from 2008 and previous year averages.
Clear The Bench Colorado positioned itself in 2011 as the only consistent source on Colorado’s Redistricting and Reapportionment process, actively engaging in both testifying on proposals and reporting on the process from beginning to end. Clear The Bench Colorado began reporting on Colorado judicial cases and related stories in 2009, and built on that wide reach and recognition in 2011. Clear The Bench Colorado continues to be the only news source on many cases and judicial issues in Colorado.
In 2012, Clear The Bench Colorado was less active in travelling to speak with the electorate across the state. 2012 saw a shift in the focus of the organization’s approach, from specific recommendations (“yes” or “no” campaign, as in 2010) to a rating without any specific recommendation (ranking votes in cases for/against the Constitution, as in 2012 and 2014). 2012 saw a 2.09% reduction in average Supreme Court retention votes from 2008.
2014 again saw an increase in earned media attention and education on the retention election issue across the state. 2014 also saw two (unrelated to Clear The Bench Colorado) ballot initiatives focused on judicial retention and accountability, both of which failed to make the ballot (but likely helped create an electoral atmosphere that paid more attention to judicial elections than in 2012). 2014 had a 5.28% reduction in average Supreme Court retention votes over 2008.
Clear The Bench Colorado‘s recommendations (2010) and ratings (2012/2014) have had some noticeable impact on election results, reducing the statewide retention vote average by 4.12% overall, utilizing limited resources and manpower.
Additionally, years in which Clear The Bench Colorado was more active (2010, 2014) have a more noticeable impact than years with less publicity (2012), particularly with the Supremes.
Clear The Bench Colorado’s anticipated future participation in education and ratings for Colorado’s judiciary will likely continue the trend of a more informed Colorado electorate, as reflected in the election results.