The Overlooked November Elections: Judicial Races

Recognizing the vast influence that judges can have on state policy, their races have received a lot of money this election year.
by | October 20, 2014

In an election cycle that features three dozen gubernatorial contests, as well as pivotal Senate and House races, it's easy to overlook down-ballot races, such as those for judgeships. After all, most voters do. But these positions can have vast influence on policy at the state level, which is why some are attracting tremendous amounts of attention and money from interest groups.

Before the general election season even began this year, an estimated $3.1 million had already been spent on judicial races, with most of the expenditures being made in two states, North Carolina and Tennessee. Groups spent about $1.4 million on advertising in the Volunteer State, where three incumbent supreme court justices were running for another term. Despite a fierce attack to unseat the judges, all three managed to win new eight-year terms. In North Carolina, incumbent Justice Robin Hudson saw nearly $1.3 million poured into her opponents' campaigns leading up to the May 6 primary. Hudson, a Democrat, survived, finishing first among three candidates and advancing to the general election against Mecklenburg County Superior Court Judge Eric Levinson, a Republican.

Now that the general election season is under way, North Carolina remains a focus of activity in judicial race politicking, as do a half-dozen other states. The Republican State Leadership Committee, which has said it plans to spend $5 million or more on judicial races this year, has "already been active in Montana, Missouri, Tennessee and North Carolina" and is "closely monitoring Ohio, Texas and Michigan," the group told Governing.

How much these groups will ultimately spend on judicial elections this year is still unfolding. "Our experience shows that 80 percent of advertising in judicial elections happens in the last month before Election Day, and 40 percent in the last week," said Laurie Kinney, a spokeswoman for Justice at Stake, a group that focuses on outside influence on judicial elections. "That is also when we would expect the major activity from outside groups to kick in."

Meanwhile, there are two important ballot measures this year related to judicial appointments in Florida and Tennessee. (For more on November ballot measures related to judges, read this).

In the Sunshine State, Amendment 3 would allow a governor to "prospectively" fill a judicial seat when a judge announces their departure but hasn't left the court yet. The amendment emerged because judges often leave office around the same time a new governor is sworn in. However, critics say the amendment gives too much authority to outgoing governors, who are at best lame ducks and at worst have been rejected by the voters. The measure could allow Republican Gov. Rick Scott -- if he wins a second term this year -- to appoint successors to three "liberal" justices who are required to retire in 2018, Orlando Weekly reported. The League of Women Voters is urging a no vote.

A less controversial measure in Tennessee, Amendment 2, was sent to the ballot with broad, bipartisan majorities in the legislature. It would fix the current judicial appointment process, with one change. Currently, the governor appoints judges, and then voters periodically have a chance to retain them. The measure would enshrine that process in the constitution, rather than by statute as is now the case, with the additional hurdle of allowing the legislature to confirm them. If the legislature fails to act in 60 days, the judge is deemed confirmed.

The amendment is backed by the five sitting supreme court justices and the other 24 appointed justices in Tennessee, as well as by GOP Gov. Bill Haslam and former Democratic Gov. Phil Bredesen. "The 'yes' side seems fairly well organized and has an impressive array of interest groups -- the Bar Association, the State Chamber of Commerce and many local Chambers," said University of Tennessee political scientist Anthony Nownes. "I have seen very little activity on the 'no' side. A few conservative websites have taken up the 'no' cause, but other than this there seems to be nothing."

Below is a state-by-state rundown of this election season's judicial hot spots.

North Carolina

There are four contested supreme court races in the state this November. In addition to the Hudson-Levinson contest, Chief Justice Mark Martin will face Judge Ola M. Lewis; Justice Robert N. Hunter Jr. will square off against Judge Sam Ervin IV; and Justice Cheri Beasley will face Michael Robinson.

While the judicial races are officially nonpartisan, the candidates' party affiliations are no secret. In a state where a Republican surge during the past two election cycles has led to a staunchly conservative policy agenda and a resulting Democratic backlash, the judicial contests in the Tar Heel State promise to be hard-fought and closely watched.

Through early October, supreme court candidates have collectively booked more than $1 million worth of TV airtime for campaign ads for the general election alone. "This is the first time in a decade without public financing in North Carolina," said Alicia Bannon, a counsel for the Brennan Center for Justice at New York University. "We're seeing more pressure on candidates to fundraise."

Michigan

Michigan has three contested supreme court seats this fall. The top two finishers among four candidates will be seated for eight-year terms. The four contenders are Republican incumbent Justice Brian Zahra, Republican circuit Judge James Robert Redford, Democratic Detroit-area attorney Richard Bernstein and chief appeals court Judge William B. Murphy.

In addition, there is a third election for a partial, two-year term between appointed GOP incumbent David Viviano and Democrat Deborah Thomas. Collectively, the candidates raised $2.1 million through mid-September and have spent at least $700,000.

Ohio

The state supreme court, though officially nonpartisan, includes six justices generally considered Republicans and one considered a Democrat. There are two races on the ballot in November, only one of them competitive: Appointed incumbent Judith French faces a tough race against Cleveland Judge John O'Donnell, a Democrat.

A Columbus Dispatch poll found O'Donnell leading French by six points. Oddly enough, O'Donnell's name may be a reason for his edge. Current supreme court justices include Terrence O'Donnell (no relation), Maureen O'Connor, William M. O'Neill and Sharon L. Kennedy. "Irish last names have proved strong lately," said Mark Weaver, a GOP consultant in the state.

New Mexico

The contest of note in New Mexico is the face-off for a seat on the Court of Appeals. The appointed incumbent, Republican J. Miles Hanisee, is facing a challenge from Democratic attorney Kerry Kiernan. It's "a campaign that's free of venom, deception and cheap shots," Santa Fe New Mexican columnist Milan Simonich recently wrote.

Fred Nathan, the founder and executive director of Think New Mexico, a Santa Fe-based think tank, agreed. "Both are considered qualified and capable," he said. "The consensus is that it is a shame that one has to lose."

Montana

Two of the seven seats on the Montana Supreme Court are up this year. Incumbent Mike Wheat faces former state Solicitor General Lawrence VanDyke, while incumbent Jim Rice faces Billings lawyer Walter David Herbert. Officially the seats -- which have eight-year tenures -- are nonpartisan, but Wheat is a former Democratic state senator while VanDyke worked under Tim Fox, the Republican attorney general.

The Republican State Leadership Committee has begun airing television ads for VanDyke, while a group called Montanans for Liberty and Justice is on the air opposing him.

Missouri

The Republican State Leadership Committee recently gave $100,000 to Bryan Stumpe, the Republican opponent of presiding circuit Judge Patricia Joyce of the Cole County 19th Judicial Circuit Court, PoliticMO.com reported. Because Joyce's court represents the state's seat of government, it has jurisdiction over key constitutional issues and ballot measures.

Texas

There are two courts of final appeal: the supreme court, for civil matters, and the court of criminal appeals, for criminal cases. "Most voters know little to nothing about the supreme court and court of appeals candidates and will cast their ballot based purely on the partisan affiliation of the candidate," said Mark P. Jones, a Rice University political scientist. Since no Texas Democrat has won a statewide race since 1994, the GOP is all but assured of another sweep this year.

In fact, the Democrats failed to even field a candidate for three of the seven statewide judicial races this year. This failure to nominate candidates "is manna from heaven for the Texas Libertarian Party and for the Texas Green Party, who need to win at least 5 percent in one statewide race to retain their ballot access," Jones added. "That is not overly difficult in these three contests, given that some Democratic voters will cast a vote for them while a substantial number of Democratic voters will not cast a vote in the race, leading to a much smaller denominator used in the calculation."

Perhaps the most interesting race involves Larry Meyers, a court of criminal appeals judge elected as a Republican who later switched parties and is now running for a Supreme Court seat. He was able to run without giving up his criminal court seat, which is not up for renewal this year.