October 27, 2020
Each state in the Union has its own constitution, directing how judges ascend to the bench. Twenty-one states have a popularly elected supreme court with 15 states using non-partisan elections and 6 states using partisan elections (Illinois being one). Fourteen states use merit selection (also known as the Missouri plan). Thirteen states have the governor appoint with legislative assent. Two states have legislatures elect judges.
Illinois has had a popularly elective judiciary since 1848, when the second Illinois Constitution took effect. During the first constitutional period in Illinois (1818–1848), the General Assembly elected judges. A Democratic court packing scheme in 1841 led many citizens to believe that the legislature wielded too much power in the operation of state government. Framers of the 1818 constitution wanted to protect the citizens from executive tyranny. A new constitutional convention in 1847 addressed those issues by reducing the involvement of the legislature in the activities of the executive and judicial branches, equaling out the powers of the three branches.
In the 1830s and 40s, Jacksonian democracy, personified by President Andrew Jackson, was a populist movement across the country with one of its core tenets being that all governmental positions should be elected by the people. Illinois’s new 1848 constitution reflected this belief in mandating popular elections from governor to county clerk. The new constitution also created three districts to elect each of the Supreme Court justices with the possibility of legislation making Supreme Court justice elections statewide. With the rapid rise of Chicago’s population, legislators never acted upon electing justices statewide in order to maintain geographic representation on the Supreme Court. Currently, Illinois is the only state in the country that has geographic representation for its supreme court.
Reorganization of the judiciary was one of the primary reasons for the calling of the 1870 constitutional convention, and it retained an elective judiciary but expanded the court to seven members from seven geographical districts. In 1940, Missouri adopted merit selection, which called for a commission to provide names of qualified candidates for the governor to choose one. Many states gradually adopted the “Missouri plan.”
When Illinois replaced the 1870 constitution’s judicial article in 1962, election of judges remained intact. Eight years later, when the 1970 constitution was submitted to the public for approval, voters were given the choice between judicial elections and merit selection (gubernatorial appointment from nominees submitted by judicial nominating commissions). The Illinois State Bar Association urged its membership to vote for merit selection. The constitution passed 56–42% and the separate question regarding the judiciary passed 50–43% in favor of retaining judicial elections.