Triumphs and Setbacks in Efforts to Reshape State Supreme Courts
With tens of millions of dollars flowing into high-court elections, Republicans did better in partisan races in two states, while Democrats held on to their majorities elsewhere.
While both political parties spent heavily, new conservative political action committees poured record sums into both nonpartisan and partisan races. “This may have been the most expensive midterm cycle ever for judicial elections nationally,” said Douglas Keith of the Brennan Center for Justice.
The candidates themselves raised at least $28 million this year, according to FollowTheMoney.org, but the parties and political action committees, including one that pledged $22 million worth of ads, probably spent much more. A pre-election analysis by Bloomberg Law estimated that $57 million had been spent on ads in this year’s high-court races.
The Republican State Leadership Committee spent big in North Carolina and Ohio, the only two states in the past century to move from nonpartisan to partisan judicial elections. Both states’ high courts struck down gerrymandered districts in the past year, but Republican justices dissented in those rulings. The Republican-led legislatures in both states will redraw congressional districts in the next few years, and the new high-court majorities will likely allow them to gerrymander them to benefit the GOP.
In Ohio, Republicans won three seats after outspending their Democratic rivals. Retiring Chief Justice Maureen O’Connor, who voted with the Democrats in the gerrymandering cases, will be replaced by Justice Sharon Kennedy, who dissented. Kennedy’s campaign raised around $1.7 million, compared to $900,000 raised by her Democratic opponent. Justice Pat DeWine, a son of Ohio’s Republican governor, won re-election after raising well over $1 million. And his GOP colleague, Justice Pat Fischer, collected around $800,000 in campaign contributions.
The new Ohio Supreme Court is unlikely to strike down contentious legislation passed by the Republican-led Legislature. This year, for example, the ACLU challenged the state’s six-week abortion ban in state court, and last year the high court ruled that schools can’t arm teachers.
GOP Tar Heel Triumph
In North Carolina, Republicans won their first majority on the high court since 2017. Court of Appeals Judge Richard Dietz won an open seat, and lawyer Trey Allen, a former clerk to conservative Chief Justice Paul Newby, defeated an incumbent Democrat.
More than $15 million was spent on the race, according to North Carolina Public Radio. NC Families First, which supported the Democrats, spent nearly $4 million on ads suggesting that the Republicans wouldn’t protect abortion rights. Meanwhile, a group called Stop Liberal Judges spent even more on “soft on crime” attack ads that accused the Democrats of “siding with rapists.” Both groups indirectly received millions of dollars from national organizations. The Democratic candidates spent around $2 million each, while the Republicans spent a combined total of around $1.6 million.
The new GOP majority could roll back several rulings by the Democratic majority on issues including criminal justice, education and voting rights. Just last week, for example, the court upheld an order requiring officials in the executive branch to transfer certain funding to public schools. The Legislature for years has resisted court orders to adequately fund schools, and the high court sent the case back to the trial judge to determine exactly how much money is needed to satisfy the constitutional mandate, so the case could end up at the high court again.
Other issues are likely to be in play before the new court, including the state’s 20-week abortion ban; abortion rights groups including the ACLU and Planned Parenthood spent heavily to help the Democratic candidates. The head of the state Chamber of Commerce, which spent well over $1 million to back the GOP candidates, told Bloomberg Law that the new Republican majority will be less likely to expand corporate liability. And the Republican majority could also allow two voter ID mandates, which have so far been blocked, to go into effect.
Where the Most Money Was Spent
The Brennan Center said the elections for two high-court seats in Illinois, where Democrats kept their slim majority, were “likely the most expensive” of this year’s judicial races. The GOP candidates were backed by millions in independent spending from groups funded by billionaires Ken Griffin and Richard Uihlein, and the Democrats got millions from labor unions and Gov. J.B. Pritzker. A new group called Fair Courts America, the PAC tied to Uihlein that pledged to put $22 million into high-court races nationwide this year, spent hundreds of thousands backing Illinois Republicans.
Democrats prevailed in two suburban Chicago districts, and another Democratic justice was retained in a retention election. The court’s election districts were redrawn last year by the Democratic Legislature, and Republicans accused the lawmakers of gerrymandering. The move came after conservatives ousted a Democratic justice in 2020, a race that also broke the record for spending in judicial elections.
This year’s election featured attack ads on both sides. Ads sponsored by Democrats and their supporters warned voters that a GOP majority would threaten abortion rights, while Republicans and their supporters tried to tie the Democrats to a controversial politician facing federal charges.
Abortion Politics in Michigan
The issue of access to abortion also came up in the Michigan Supreme Court race, which saw Democratic and Republican incumbents re-elected, ensuring that the court’s 4-3 Democratic majority will remain in place. An ad from a progressive group linked Justice Brian Zahra, who dissented when the court declined to block an abortion rights amendment from appearing on the ballot, to “extremist” anti-abortion activists. In the final week of the election, news outlets reported allegations that Zahra had paid for a girlfriend’s abortion decades ago.
Unlike other states, the Democrats in Michigan were supported by more independent spending. And the candidates themselves spent more than $6 million, according to FollowTheMoney.org. Democrats received big contributions from labor unions, while the Republicans were backed by corporate funding.
Unsuccessful Efforts to Reshape Nonpartisan Courts
In several states with ostensibly nonpartisan elections, candidates affiliated with or supported by Republicans failed to unseat incumbents who have sometimes thwarted Republican legislatures. Conservative and Republican groups spent heavily in unsuccessful efforts to reshape high courts in Arkansas, Kentucky and Montana.
Arkansas Supreme Court Justice Robin Wynne defeated a conservative challenger funded by Republican groups and business interests. The court has upheld some COVID-19 mandates and signed off on progressive ballot measures.
In Kentucky, the Republican State Leadership Committee and Fair Courts America both spent millions in a pivotal Supreme Court election but came up well short in the three contested races for the seven-member court. Justice Michelle Keller defeated conservative challenger Joe Fischer, a vocal opponent of abortion, while lower-court judges handily bested two lawyers in races for two open court seats.
In Montana, where the high court has come under fire from Republican legislators, two incumbent justices won re-election by a decent margin. Justice Ingrid Gustafson defeated a Republican elected official and Justice Jim Rice defeated a conservative lawyer. The incumbents were backed by millions in outside spending, and pro-abortion rights groups rallied to support them. The RSLC ran ads attacking Gustafson, and a progressive group called Montanans for Liberty and Justice attacked her opponent.
In recent years, the Montana justices have ruled for environmental groups and stopped some political power grabs. The court has also put an abortion ban on pause while it considers arguments that it’s unconstitutional.
Where the Big Money Wins
The election results showed that a state’s method of choosing judges matters. Partisan special interests once again spent millions in nonpartisan races but came up short. But with party labels by the names of candidates on the ballots in Ohio and in North Carolina, Republicans won.
The Brennan Center found that the previous election cycle broke records for high-court races, with nearly $100 million spent in 2020. And this year’s races could break the record for spending in a midterm. (That spending does, however, include around $1 million from a new public financing program for New Mexico judicial elections.)
Today’s heavy spending on once sleepy state high-court elections reflects a growing awareness of the importance of these courts in our democracy. As the U.S. Supreme Court has rolled back abortion and voting rights, legal battles over these and other contentious issues have shifted to state supreme courts, which have the final say on interpreting their states’ constitutions. The outcome of these elections will be felt in the states for years — and decades — to come.
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