A newly created seat produces a vacancy which, under Art. VI, §16(c) "shall be filled by election to a full term at the next general election after the January 1 following the vacancy." Fields v. Eu (1976) 18 Cal.3d 322.

Under Government Code §71180, the office will be on the ballot in the next primary election but only if that election occurs at least 10 months after the creation of the vacancy. Donnellan v. Hite (1956) 139 Cal.App.2d 43.

Under Art. VI, §16(c) of the state Constitution, "the vacancy shall be filled by election to a full term at the next general election after the January 1 following the vacancy, but the Governor shall appoint a person to fill a vacancy temporarily until the elected judge’s term begins." The person who is to "temporarily" fill the vacancy will, of course, nearly always become the elected judge owing to the advantage of incumbency in running for election.

Under Government Code §71141, "Judges of the municipal court… shall be elected at the general state election next preceding the expiration of the term for which the incumbent has been elected." 

Government Code § 71180(b) provides that "[n]o successor to the appointee shall be elected at any election held within 10 months of the date of the occurrence of the vacancy." This applies even where this means the successor will remain in office past the time the elected judge’s term would have expired. Campbell v. Hite (1962) 57 Cal.2d 484.

Once a candidate qualifies, however, a primary election will take place in June (and in November if there is a run-off). Stanton v. Panish (1980) 28 Cal.3d 107. The governor may still make an appointment to the post after a candidate qualifies, though the term of the appointee will expire the Monday after Jan. 1. Const., Art. VI, §16(c). The flip side of Stanton, however, is that if the governor makes an appointment before a candidate qualifies for the office by filing nominating papers, the election for the office will be called off and will take place in two years. That holding, however, must be assumed to apply only where the incumbent who leaves office was elected to his or her post. Pollack v. Hamm (1970) 3 Cal.3d 264, which Stanton does not purport to overrule, held that the departure of an appointed judge will not result in the postponement of an election.

"If a vacancy in the office of judge of a municipal court occurs between the last day candidacy declaration papers may be filed and the June direct primary election and that vacancy occurs because of the appointment of the incumbent judge to another office by the Governor, or because the incumbent has resigned, retired, died, or been removed from office in accordance with subdivision (b) or (c) of Section 18 of Article VI of the California Constitution, and if one or more qualified persons other than the incumbent have filed candidacy declaration papers for the office, no vacancy shall be deemed to exist for purposes of subdivision (a), and the election for the office of judge shall be postponed until the next November statewide election." Government Code §71180(b). The governor may make an interim appointment. §71180(a).

Once a candidate files nominating papers, the subsequent death or retirement of the judge has no effect on the election. Stanton v. Panish. (Upon the failure of the incumbent to file nominating papers, the period for other candidates to file nominating papers is extended by five days. Elections Code §8204.)

Under Government Code §71180(b), if the departure from office occurs later than the last day for filing declarations of intention, the election will be postponed until November, to be decided by a plurality of the vote. Cathey v. Weissburd (1988) 202 Cal.App.3d 982. Previously filed documents are ineffective; the process starts anew, with additional candidates being eligible to enter the race. Funds expended by the challenger on a candidate statement in the Voters’ Pamphlet may not be recouped, although, under §71180(b), a new filing fee need not be paid.

A vacancy occurs which may be filled temporarily by the governor, with an election taking place in two years. Const., Art. VI, §16(c). Where the judge resigns prior to the primary, that judge will not be deemed elected to a new term. People Ex rel. Superior Court v. Robinson (1987) 190 Cal.App.3d 334. 

Government Code §71180(b) does not come into play where no other candidate has filed a declaration of candidacy; the election will not be postponed to November. The governor may fill the vacancy and the appointee would face voters in two years. Brown v. Hite (1966) 64 Cal.2d 120.

Under Stanton v. Panish, the election will proceed. Elections Code §8800 provides: "No candidate whose declaration of candidacy has been filed for any primary election may withdraw as a candidate at that primary election." In light of that provision, a voter may not bring a proceeding in mandate under Elections Code §13314 to correct "an error or omission" on the ballot by compelling removal of the name of the candidate. Mann v. Superior Court (1986) 181 Cal.App.3d 372. The former judge may be listed on the ballot as a judge notwithstanding that he or she no longer holds that office. Under §13107(a)( 1), an office may be listed if the candidate held it "at the time of filing the nomination documents." 

A vacancy having occurred after the last day declarations of candidacy may be filed and before the June primary, the election will be postponed until November. Government Code §71180(b).

Under Elections Code §8809, a candidate’s name will not appear on the ballot if the officer charged with printing ballots has ascertained the fact of the death at least 68 days before the election. In that event, only the name of the challenger (or names of challengers) will appear. If the name of the deceased incumbent does appear on the ballot, Elections Code §15402 applies and "votes cast for the deceased candidate shall be counted." The statute continues: "If the deceased candidate receives a majority of the votes cast for the office, he or she shall be considered elected and the office to which he or she was elected shall be vacant at the beginning of the term for which he or she was elected." The governor may then appoint a successor.

A vacancy having occurred after the last day declarations of candidacy may be filed and before the June primary, the election will be postponed until November. Government Code §71180(b). 

Under the reasoning of Stanton v. Panish, the scheduled election will not be upset, and the same law would pertain as would apply if neither candidate in the run-off were an incumbent. If the election official responsible for printing the ballots becomes aware of the death at least 68 days before the general election, Elections Code §8803 authorizes filling the "vacancy" on the ballot (solely under this circumstance). Sec. §8807 provides that "the name of that candidate receiving at the primary election the next highest number of votes shall go upon the ballot to fill the vacancy." If there were only two candidates in the primary, only the name of the surviving candidate will appear on the ballot. Sec. 8810 proscribes inclusion of the name of the deceased candidate. 

If, however, the death occurred after the 68th day before the election, Elections Code §15402 pertains. See box above.

The same statutes apply to Municipal Court elections as those applying to Superior Court elections.

Under the reasoning of Stanton v. Panish, the scheduled election will not be upset, and the same law would pertain as would apply if neither candidate in the run-off were an incumbent. Elections Code §8804 would require that election officials remove the name of the incumbent from the general election ballot and substitute the name of the candidate in the primary with the next highest number of votes if an incumbent who has been appointed to a state or federal office so requests at least 68 days before the general election. Otherwise, the name of the incumbent and the other high vote-getter in the primary would go on the general election ballot.

The same statutes apply to Municipal Court elections as those applying to Superior Court elections.

The election processes will have "spent their force" and there is no contest to go before the voters in the November election. French v. Jordan (1946) 28 Cal.2d 765, Elections Code §8140. 

Under Elections Code §8140, "Where a candidate has been elected to a nonpartisan office at the primary election, that office shall not appear on the ballot at the ensuing general election, notwithstanding the death, resignation, or other disqualification of the candidate at a time subsequent to the primary election." 

When the elected judge does not take office in January, no new vacancy is created, and the appointed judge remains in office until the person chosen at the next election, which will occur the following year. Anderson v. Phillips (1975) 13 Cal.3d 733.

Government Code §71180(a) provides that an appointee shall hold office "until his or her successor is elected and qualifies." Where the judge who was elected to a new term fails to take the oath of office in January following the election, he or she has failed to "qualify," meaning that the appointee shall continue in office, and will succeed to a full six-year term. Caldwell v. Bruning (1966) 64 Cal.2d 111. NOTE: a judge who is unopposed in the primary is not deemed elected to a new term. The judge is deemed elected when the period expires for filing a notice of intention to conduct a write-in campaign in the November election. Brown v. Hite (1966) 64 Cal.2d 120. Where the incumbent is unopposed in the primary but leaves office prior to expiration of the period for filing such notices, the appointee will face voters in two years. Ibid.