Election 2025: What is Judicial Retention, and Why Does it Matter for PA’s Supreme Court Balance?

Pennsylvania voters will be asked on Nov. 4 whether to give three judges on the state Supreme Court more time on the bench.

These yes-or-no retention elections are a big deal, and if Republicans succeed in their stated goal of getting Pennsylvanians to vote “no,” they could set the stage for a total remaking of the court.

But the process is also very different from a traditional election, and Republicans won’t automatically win a majority even if they get “no” votes.

All three justices up for retention — Christine Donohue, Kevin Dougherty, and David Wecht — were elected as Democrats in 2015, and their party has held a majority on the state’s high court ever since. The seven-member court currently has five justices elected as Democrats and two as Republicans.

The Pennsylvania Bar Association, a nonpartisan trade group for lawyers that often evaluates judicial candidates’ qualifications, has recommended all three justices for new terms.

Two judges on lower appellate courts are also up for retention; both were also elected as Democrats. Voters will decide whether to give Alice Dubow another term on the Superior Court, and whether Michael Wojcik should have another term on Commonwealth Court.

As Nov. 4 approaches, here’s what you should know about retention.

How does the judicial retention process work?

Judges on all three of Pennsylvania’s statewide appellate courts — Supreme, Superior, and Commonwealth Courts — are first elected in partisan, statewide elections and serve 10-year terms. The number of terms they can serve is unlimited, though they must retire at age 75.

But after these initial elections — in which judges campaign and run under the banner of a party — they get additional terms in retention elections, which are very different.

Retention elections are not partisan, so when a judge appears on the ballot to be retained, their name won’t have a party next to it. These elections also don’t involve an opposing candidate. Voters are simply asked to say yes or no to giving a judge another decade on the bench.

If the vote is yes, the judge stays on. If it is no, the governor can appoint a temporary replacement subject to the approval of the state Senate.

An election for a replacement to serve a full 10-year term is then held in the next odd year, which means that if a judge isn’t retained this year, voters won’t pick a long-term replacement until 2027. The judges appointed as replacements traditionally don’t stand for full-term elections, though nothing actually prevents them from doing so.

This system seems complicated. Is it common?

Kind of.

States use a wide range of techniques to pick judges, ranging from appointment to nonpartisan

election.

Yes-or-no retention elections are the most common way for judges on states’ high courts to get additional terms once they are voted on the bench. However, Pennsylvania’s specific combination of electing judges to all its appellate courts in partisan, statewide elections and then retaining them in nonpartisan, unopposed elections is much less common.

Illinois is the state most like Pennsylvania in this respect, though its appellate court elections are done by judicial district, and are not statewide. New Mexico also has a similar process, though its judges are first appointed by the governor from a judicial commission’s shortlist, then stand for a partisan vote in the subsequent general election, followed by a retention election.

Is a ‘no’ vote on retention the norm?

Nope. It’s extremely unusual.

Most judges up for retention win new terms by comfortable margins. Just one statewide judge has lost retention since 1968, when the state constitution was last updated — Supreme Court Justice Russell Nigro.

That happened in 2005, a politically tumultuous year for Pennsylvania.

Tim Potts, an activist who campaigned against Nigro’s retention, said it all started when the Supreme Court upheld the state’s 2004 slot machine legalization, which the legislature approved over the span of 48 hours by inserting the language into a semi-related bill.

Potts and other activists opposed to gambling argued the rapid timeline and means violated the state constitution, which places strict rules on how bills pass the General Assembly.

After the state Supreme Court upheld the law, Potts said he and a grassroots network of good-government groups and activists began to organize against two retention elections that year, by “all just using our own individual networks.”

Then, lawmakers used a similar process to pass a sizable pay hike for the legislature, executive, and judiciary, which flared smoldering grassroots skepticism into a wildfire of opposition to the commonwealth’s political establishment. From there, Potts said, “It was easy.”

They spent little money, relying on news coverage and word of mouth. They also weren’t just after Nigro. Another justice, Sandra Schultz Newman, was also up for a new term that year. But while Nigro lost by a margin of two percentage points, Newman won by about eight percentage points.

Nigro told Spotlight PA earlier this year that he thought he lost for a number of reasons, including opposition from the Philadelphia political machine — he performed slightly worse than Newman in the commonwealth’s biggest city.

As for the pay raise, which he said he had nothing to do with, he thought that the public’s anger was misplaced and stoked by the press.

Voters, Nigro said, were mad at the pay raise and “voted accordingly. And they blamed me because Justice Newman and I were the only ones on the ballot.”

What is this election about?

Appellate judges’ decisions can have an enormous impact on both state politics and people’s daily lives. Over the past decade, the Pennsylvania Supreme Court’s Democratic majority has handed down some far-reaching decisions.

These rulings have mostly divided the justices along partisan lines, and Donohue, Dougherty, and Wecht typically rule with the Democratic majority. There are exceptions, though.

All three concurred in a ruling to overturn the commonwealth’s congressional map in 2018 as an unconstitutional gerrymander. And in the next redistricting cycle, they joined the 4-3 majority to again step in to pick a new map when the governor and legislature deadlocked.

Nearly all the Democrats on the court — and one Republican — ruled to allow a case challenging the state’s education funding system to go to trial. That case led to a lower court finding the system unconstitutionally inequitable.

The numbers were similar in a case in which the court upheld COVID-19 mediation efforts, though Dougherty partially dissented in that case. The judges were much more mixed on a ruling that allowed notable changes to 2020 election logistics amid the early days of the pandemic; Donohue and the court’s two conservative justices at the time all partially agreed and partially dissented with the Democratic majority’s decision, though their reasons differed.

The Democratic majority then backstopped the state’s voting laws against a slew of other conservative challenges, most notably from President Donald Trump’s 2020 campaign. When the campaign alleged its poll watchers hadn’t been able to get close enough to Philadelphia’s ballot counting process, for instance, the Democratic justices disagreed.

The justices also made a number of quieter moves that have inflamed opposition from business interests, including loosening restrictions on where a plaintiff can file costly malpractice lawsuits and opening the door to gig workers becoming full employees rather than independent contractors.

Republicans see this election as a must-seize opportunity to create vacancies that could allow the party to flip the court, and their early messaging to voters has been simple: Vote no.

The Republican State Leadership Committee (RSLC), a national group that helps fund state-level GOP candidates, has spent at least $85,000 on digital ads through Meta and Google as of Sept. 8. These ads implore viewers to vote “No in November,” request a mail ballot, and stop “radical liberal judges” from securing “another decade of power.”

Democrats are also beginning to spend. The group Pennsylvanians for Judicial Fairness (PJF), which is backed by prominent state and national Democratic donors, released a TV ad asking voters to retain the judges and “keep the Supreme Court independent.”

The ad also highlights a case, brought by a handful of reproductive health providers, that argues the state constitution protects access to abortion. While the high court has yet to rule on the case’s merits, it tossed out a lower court’s ruling.

“Vote and protect your rights,” the ad concludes.

Story by Stephen Caruso of Spotlight PA and Carter Walker of Votebeat

Katie Meyer of Spotlight PA contributed reporting for this story

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Image: “Vote Here” signs at Temple Sinai in the Squirrel Hill neighborhood of Pittsburgh, PA, on Election Day, Nov. 5, 2024. (Credit: Jared Wickerham / For Spotlight PA)