On Nov. 8, Flagler County voters will cast ballots in races for the U.S. Senate and the House of Representative, for governor, state House and cabinet posts, school board, county commission, three proposed constitutional amendments and a referendum on renewing the school district’s half-cent sales surtax, and for most, Palm Coast City Council.
But 11 of the 26 ovals voters will be asked to fill are retention votes in judicial elections for five Supreme Court and six appeals court judges. Those aren’t choices between candidates. Voters are merely asked: should so-and-so “be retained in office” or not. It’s the merit-retention system. In the overwhelming majority of cases, voters have no idea who those incumbents are, even if they’re Supreme Court justices–even less so if they’re judges on the Fifth Circuit Court of Appeal, one of five appeal circuits in the state. The outcomes are no less influential on the day-to-day lives of local residents.
The Supreme Court has jurisdiction over the entire state. The Fifth District has jurisdiction over 13 counties split in four trial-level, or judicial, circuits, including the Seventh, which includes Flagler, Volusia, St. Johns and Putnam counties. Civil or criminal parties who appeal their cases from circuit court in Flagler file in the Fifth District, which rules in over 100 criminal cases per quarter and twice as many civil cases.
The men and women serving on the appeal and supreme courts may not be familiar–there’s been unusual turnover on the state Supreme Court–but their rulings are controlling law.
Circuit and county judges are elected to six-year terms and must run regular elections where they can face opponents. Most do not. This year, seven circuit judges in the Seventh Judicial Circuit had to run for re-election. They all ran unopposed. Flagler County Judge Andrea Totten, who had been appointed to the newly-created seat in 2019, ran her first election–unopposed.
At the appellate level, judges are never elected but appointed by the governor, and subsequently only “retained” by the electorate every six years or, in very rare instances, rejected. Those elections always take place in even-numbered years.
This year, five Supreme Court justices and 28 appeals court judges are on the ballot. The five Supreme Court justices are Charles Canady, John Couriel, Jamie Grosshans–elevated from the Fifth District Court of Appeal in 2020–Jorge Labarga and Ricky Polston.
Couriel and Grosshans were appointed by Gov. Ron DeSantis. Labarga, Poltson and Canady were appointed by Gov. Charlie Crist. Labarga is a moderate conservative. Canady are far to the right of Crist today, Polston a little less so but still very conservative on a court that counts no liberals anymore. It has been remade into what an Orlando Sentinel editorial called a “harsh new majority” by DeSantis, wielding a “right-wing ideology that cannot be trusted to uphold the rule of law.” But if a judge is not retained by voters, DeSantis will replace him with another appointment of his own. DeSantis’s appointments have pushed the court further to the right than it’s been since the days of Jim Crow.
The same applies in the unlikely event that a judge is not retained on the Fifth Circuit Court of Appeal.
The Florida Bar ran a poll of its members on the merit retention of the Supreme Court and appeals court judges. “Results showed recommendations for retention ranging from 86 percent to 59 percent approval,” the Bar reported. “The confidential poll seeks to find whether attorneys who know the most about these jurists believe they should continue in their jobs.” 5,738 lawyers participated the poll conducted by Elections Services Co. of Hauppauge, N.Y. for the Florida Bar. It was not a scientific poll.
For the Florida Supreme Court, poll results indicate support for retention of:
Charles T. Canady, by 73 percent.
John D. Couriel, 63 percent.
Jamie Grosshans, 59 percent.
Jorge Labarga, 85 percent.
Ricky Polston, 74 percent.
A quick sketch of the six appeals court judges on the retention ballot:
Jay P. Cohen has been an appeals court judge since 2008. He was appointed by Crist and has twice before been retained by voters.
James A. Edwards was appointed by Gov. Rick Scott to a newly created seat in 2014. He was retained in 2016.
Brian D. Lambert was appointed by Scott to fill the vacancy created by the retirement of Judge Jacqueline Griffin in 2014.
Mary Alice Nardella was appointed to the court by DeSantis in 2021, in the face of opposition over Nardella’s qualifications. The Orlando Sentinel is editorializing against her retention.
Daniel E. Traver was appointed to the court by DeSantis in 2019, replacing Wendy Berger, who Donald Trump appointed to the 11th Circuit Court of Appeals (she won Senate confirmation by a tepid 54-37 vote).
Carrie Ann Wozniak was appointed by DeSantis in 2021, replacing Richard Orfinger.
Notably, Cohen, Nardella and Wozniak, along with Meredith Sasso, who also serves on the Fifth District Court, will all be moving to the newly created Sixth District Court of Appeal starting in January. That court will b headquartered in Lakeland, carving out some of the Fifth’s counties. It will include Orange, Osceola, Polk, Hardee, Highlands, Charlotte, Glades, Lee, Hendry and Collier counties. DeSantis will make four more appointments to fill the seats vacated on the Fifth District, a chance for many judges in the Seventh Judicial Circuit to attempt to move up.
For the 5th District Court of Appeal, the Florida Bar’s poll results indicate support for retention of:
Jay P. Cohen, 79 percent.
James A. Edwards, 72 percent.
Brian D. Lambert, 71 percent.
Mary Alice Nardella, 62 percent.
Daniel E. Traver, 70 percent.
Carrie Ann Wozniak, 69 percent.
The following articles and opinions provide added perspective on the judicial slate in the Nov. 8 election.
- Florida Bar Guide for Florida Voters: Judicial and Merit Retention Elections FAQ
- Florida voters will decide whether to retain 5 of 7 state Supreme Court justices
- 4 Florida justices have lost our confidence | A Sun Sentinel and Orlando Sentinel editorial
- Alan Lawson: I’m a former Florida Supreme Court justice who will vote yes to retain five justices
- How Florida Voters Could Fire Their Worst Supreme Court Justices In November
- Voters have the power to oust four far-right Florida Supreme Court justices on Nov. 8. Will they use it?
- Ballotpedia’s 2022 Florida appellate court elections page.