For most of us, accustomed to elections as being a contest between candidates from opposing political parties, the notion of a retention election seems odd, almost foreign. So the idea that there are a number of Pennsylvania judges, both in the appellate courts and lower courts up for retention might need some explanation. Although often downplayed in the past, a few appellate court retention elections this election day, November 4, 2025, deserve some specific attention. These are generally considered non-partisan although, of course, in the current day climate, as with almost everything else, that can be difficult. Substantial sums, in particular, have been spent on current Pennsylvania Supreme Court retention elections for November 4 and the policy reasons are significant. The reasons might not be immediately apparent.
What Is a Retention Election and Why Does It Matter. Unlike the U.S. Supreme Court where Supreme Court justices are appointed by the president for life with confirmation by the U.S. Senate, (or occasionally, one decides to leave voluntarily) Pennsylvania judges are elected by voters and every ten years are up for retention. It is extremely unusual for Pennsylvania Supreme Court Justices to be voted out on retention elections. In fact, it is noted only once and it was not his fault. When Justice Russell Niger ran for retention in 2005 he had the misfortune of running at a time when the Pennsylvania State Legislature had just voted for a substantial salary increase for themselves and for the judges. The salary increase was unpopular and had nothing to do with Russell Niger but he lost retention.
The Pennsylvania retention election for Supreme Court Justices, in particular, now is very important and the numbers could explain this.
- The Numbers – Seven Justices – Five Democrats – Two Republicans. As stated, retention elections are typically regarded as non-partisan. This is to the point that Democrats and Republicans have both in the past often supported or at least failed to oppose candidates from the opposing party especially on the lower levels. The Pennsylvania Supreme Court currently consists of five Democrats and two Republicans. Three of the Democrats, Dougherty, Donahue and Wecht are up for retention. One issue is abortion but a massive issue is the way Pennsylvania elections are conducted including but not limited to use of and control of mail in ballots. These issues include things like how ballots are counted, whether ballot boxes are allowed, the deadlines when ballots need to have been received, whether including the correct date on the return envelope or failing to include it can affect whether your ballot is counted and so on.
- What Happens If a Justice Were To Lose Retention? As stated, this is not like a general election where the candidate has an opponent from the opposing political party. It is like running against yourself with no alternative candidate. If one or all three of the Justices up for retention were to lose, there would be no replacement. Then the likely result would be that the seat(s) would remain vacant for the next two years. To replace Justices it would be necessary to wait until 2027, for another election to occupy those seats. Theoretically, the Governor can nominate other individuals to occupy those if the Justices were to lose retention. However, his nomination(s) would need to be confirmed by the Pennsylvania State Senate which as most of us know is majority Republican. This means there would almost certainly be a stalemate. Although Democrats and Republicans do not always vote in predictable ways along party lines we would likely be faced with years of unpredictable or unmade decisions similar to what we are dealing with now with the U.S. Supreme Court.
So we would likely assume that the balance would shift to an equal number of Democrats and Republicans – this is two to two – and could not be rebalanced until 2027.
I am not alone in my numbers theory regarding stalemade. Shanin Specter, the son of Philadelphia’s deceased Senator, Arlen Specter, when interviewed, came to the same conclusion for Spotlight PA.
- Who Is Funding the Opposition? On the Democratic side in favor of retention the ACLU (American Civil Liberties Union) is a major supporter. On the Republican end Spotlight Pa (www.spotlightpa.org ) has identified Republican PACs reportedly mostly funded by Jeff Yass who is reportedly, according to Spotlight, “Pennsylvania’s richest man.”
https://www.spotlightpa.org/news/2025 . Ads on any side need to be considered with a note of caution and further review.
Esquire, Colliton Law Associates, P.C. Janet Colliton has practiced law for over 38 years, 37 of them in Chester County, Pennsylvania, a suburb of Philadelphia. Her practice, Colliton Law Associates, PC, is limited to elder law, Medicaid, including advice, applications and appeals, and other benefits planning including Veterans benefits, life care and special needs planning, guardianships, retirement, and estate planning and administration.
