Michigan voters encounter a unique system when casting ballots for judges, where incumbent judges often appear in their own distinct sections. This separation, which includes designations like "Incumbent Position" and "Non-Incumbent Position" on the ballot, was established by a state law enacted in 1982. This practice means that judicial candidates do not always compete directly against sitting judges in the same race, a significant change from how these elections operated previously.
For instance, in a general election, voters might see numerous incumbent judges listed for "incumbent" seats in a specific court, such as the 3rd Circuit Court in Wayne County. Simultaneously, a separate section could feature a candidate running for a "non-incumbent" seat, perhaps due to a judge's retirement, death, or the creation of a new judicial position, or for a partial term. The only exception to this ballot separation rule applies to full-term races for the Michigan Supreme Court, where all candidates run together.
This system was a direct result of heavy lobbying by incumbent judges themselves, who sought the change. Proponents of the legislation argued that giving incumbents their own ballot section would allow judges to concentrate on their judicial duties, rather than dedicating time to fundraising for campaigns, which they suggested could lead to ethically compromised situations.
Former state Rep. Virgil C. Smith, a Detroit Democrat who sponsored the 1982 bill that became law, supported the measure. He stated at the time that the bill aimed to assist judges, who he believed faced "a lot more limitations on their ability to put a campaign together" compared to other politicians. Smith, who later served as a 3rd Circuit Court judge for 14 years before retiring in 2018, reiterated in 2024 that judges still warrant special consideration. He asserted, "If you don’t give them some advantages, you leave them open to the predatory nature of the political system," adding that he had no issues with the legislation he helped pass.
Lawyers who backed the change also posited that the new system would make it easier for new legal professionals to successfully secure a position on the bench, as they would not be forced to campaign against sitting judges. Furthermore, they suggested it would lessen the likelihood of attorneys finding themselves arguing cases before a judge who had been a former political rival, should they lose an election.
Critics, however, voiced concerns that the 1982 law would unduly shield incumbent judges, granting them an even greater advantage over challengers. Then-state Sen. Kerry Kammer, a Democrat from Pontiac, critiqued early attempts to separate judicial races by incumbency in 1976. Kammer argued that if the state was truly committed to electing its judges, "then it seems to me that these elections ought to be more than just window dressing."
Despite these criticisms, state lawmakers ultimately approved Smith’s bill and sent it to Governor William Milliken, who signed it into law in 1982. A report in the Flint Journal at the time commented on the outcome, 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." This change fundamentally altered how judicial elections are presented to Michigan voters, shaping the landscape of the state's judiciary for decades.
