Arizona lawmakers agree to let voters decide on retention rules for state Supreme Court justices

PHOENIX -- Arizona lawmakers voted Wednesday to send an initiative to the November ballot that would protect two state Supreme Court justices targeted for removal from the bench over their support for a near-total abortion ban dating back to the Civil War.

Both chambers of the Legislature agreed to allow voters to decide Nov. 5 whether to eliminate the terms of six years for Supreme Court justices and four years for Superior Court judges in large counties. That will allow them to serve indefinitely “during good behavior,” unless decided otherwise by a judicial review commission, and avoid a retention vote on the ballot each time their term ends.

As a ballot initiative, the proposed law would bypass Democratic Gov. Katie Hobbs, a strong supporter of reproductive rights who signed a Legislature-approved repeal of the 1864 law this spring.

Several Democrats who voted against the measure noted that the retention rules were championed by the late former U.S. Supreme Court Justice Sandra Day O'Connor, who had been an Arizona state senator and Superior Court and Appellate Court judge.

The retention system “provides the kinds of checks and balances critical to our democracy,” said Sen. Flavio Bravo. “It would be a shame to take this action six months after Justice Day O'Connor's passing, and I vote no.”

Republican Sen. Dave Gowan, the bill's sponsor, noted that judges would still be subject to judicial review by a committee “to say if they don't belong.”

The measure will likely appear on the ballot alongside an initiative that would enshrine the right to abortion in the Arizona Constitution.

The final Senate vote on the judicial ballot initiative was 16-10, with four senators not voting. Republican Sen. Shawnna Bolick, the wife of Supreme Court Justice Clint Bolick, ignored requests by several colleagues to recuse herself and voted in favor.

Justices Bolick and Kathryn Hackett King joined the majority on the high court in April in voting to restore the 1864 abortion ban. They are the only two on the Supreme Court who are up for retention votes in November.

Both were appointed by former Republican Gov. Doug Ducey, who expanded the court from five to seven justices in 2016.

If approved by voters, the measure would apply retroactively to Oct. 31, days before the election, and would effectively throw out the results of any vote on judicial retention this year.

If it fails and voters also opt to unseat Hackett King and Bolick, Hobbs can pick their replacements.

“They definitely are ramming it through,” said Abigail Jackson, a spokesperson for Progress Arizona, a group advocating for the judges' removal. “We will continue to do our work to inform the voters that this will take away their power.”

Democrats have put abortion at the center of their quest to take control of the state Legislature for the first time in decades. Sen. Bolick, representing one of the most competitive districts, is a key target.