Michigan voters encounter a unique system on their ballots when electing judges, where sitting judges are separated from other candidates. This practice, established by a 1982 state law, places incumbent judges in distinct sections marked “Incumbent Position,” while open seats, which arise from retirements, deaths, or new positions, are listed under “Non-Incumbent Position.” This structure ensures that candidates not currently on the bench compete against each other for non-incumbent roles, rather than directly challenging sitting judges who are seeking re-election. Races for a full term on the Michigan Supreme Court are the only exception to this rule.
For instance, in a past November general election, Wayne County’s 3rd Circuit Court ballot featured 16 incumbent judges running for “incumbent” seats. Separately, one candidate sought a “non-incumbent” seat, and another ran for a partial term. This separation is a direct result of the 1982 legislation.
Before this law, judicial candidates in Michigan all ran against each other in unified contests. The shift came after judges themselves heavily lobbied for the change, which was ultimately sponsored by former state Rep. Virgil C. Smith, a Detroit Democrat. Governor William Milliken signed Smith’s bill into law in 1982.
Proponents of the 1982 law argued that creating separate ballot sections would allow incumbent judges to concentrate on their judicial duties without the distraction of extensive campaigning. They contended it would reduce the need for judges to solicit campaign funds, thereby minimizing the potential for ethically questionable situations. Former state Rep. Smith, speaking to United Press International at the time, stated that the bill would assist judges, who face “a lot more limitations on their ability to put a campaign together” compared to other politicians. He continued to defend the legislation in 2024, asserting that judges require certain advantages to protect them from the competitive pressures of the political system.
Lawyers who supported the change also believed it would benefit newcomers seeking a position on the bench. They reasoned that without having to directly compete against sitting judges, new candidates would have a better chance of winning. Additionally, they suggested that this system would reduce the likelihood of lawyers finding themselves arguing a case in front of a former political opponent if they lost an election.
However, the 1982 law also faced criticism for potentially insulating incumbent judges and giving them an even greater advantage over challengers. Early efforts to separate judicial races by incumbency drew criticism from then-state Sen. Kerry Kammer (D-Pontiac) in 1976. Kammer told the Lansing State Journal that if the state was “serious about having our judges elected,” then such elections should be “more than just window dressing.” A Flint Journal story at the time also commented on the issue, stating that “Judges have used their awesome political power once again — this time to broaden a scheme to help many of them get re-elected.”
Virgil C. Smith later served as a 3rd Circuit Court judge for 14 years, retiring in 2018. His long tenure followed his advocacy for the legislation that shaped how Michigan now votes for its judiciary. The system remains a defining feature of judicial elections across the state.
