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Abortion Becomes Key Issue in State Supreme Court Races

In multiple states, voters will decide whether to reject justices who upheld abortion bans and restrictions. Separately, many prominent Republicans continue to oppose Trump, but that probably won't sway many voters.

National statistics show states like Georgia with abortion bans or restrictions are attracting fewer medical residents.
Abortion will bring unusual amounts of attention to state supreme court races this year.
Arvin Temkar/TNS
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Abortion’s the Key Issue in State Supreme Court Races: In April, the Arizona Supreme Court upheld a near-total ban on abortion that dated from 1864. The Legislature quickly moved to repeal the law, but that’s not the end of the story. Not only will Arizona voters get to decide on a ballot measure that would enshrine abortion rights in the state constitution in November, but they’ll also have a chance to punish two of the justices who voted to uphold the old law.

It's not just Arizona. Florida voters, who will also decide on an abortion rights ballot initiative, have the chance to vote against retaining two of the three justices who wanted to keep that measure off the ballot. Georgia GOP Gov. Brian Kemp has pledged $500,000 to support Justice Andrew Pinson, who faces a challenge next week from John Barrow, a former Democratic member of Congress who has made abortion rights central to his campaign. All told, a total of 14 justices who voted to uphold abortion bans are facing retention elections this year.

“Abortion since Dobbs has been a huge issue up and down the ballot, and it’s become clear to people that virtually any abortion restriction is going to find its way to the state supreme court,” says Michael Nelson, a Penn State political scientist. “If you as a voter care about reproductive rights, the final say on those things is not going to come from the state Legislature or the governor’s veto pen, but the state supreme court.”

Judicial elections have become big-money affairs in recent years, but most of the ads have typically focused on crime. Occasionally, elections have turned on specific rulings. In 2010, for instance, three Iowa justices were removed from the bench, a year after they’d ruled that same-sex marriage was protected by the state constitution. Way back in 1986, three California justices lost their jobs after voting to abolish the death penalty.

What’s different now is having a single issue emerge as decisive across multiple states. Abortion has greater salience to many voters than seemingly distant and arcane court decisions. “We think abortion is going to have a major impact on state supreme court races in November,” says Mike Milov-Cordoba, a counsel at the Brennan Center for Justice. “We’re already seeing it shape electoral races across the country.”

The issue may not substantially reshape the state-level judiciary, at least not right away. The two supreme court candidates on the ballot in West Virginia on Tuesday faced no opposition, including Republican Charles Trump, who voted in favor of an abortion ban in 2022 as a state senator. In Montana, a mostly red state, the issue may cut the other way, since that court has ruled in favor of abortion rights. In many states, majorities are too lopsided for this year’s contests to shift the balance.

But that could happen in states such as Michigan and Ohio, as it did last year in a high-profile Wisconsin Supreme Court race. In that election, and others, the old norm of judicial candidates refusing to comment on issues likely to come before the courts has already eroded practically to nothing. “We will continue to see fights for abortion majorities over the next couple of cycles,” says Milov-Cordoba.

U.S. Sen. Mitt Romney (R-Utah) leaves a Republican policy luncheon at the U.S. Capitol
How many Republicans still care what Mitt Romney thinks?
Kevin Dietsch/TNS
It’s Trump’s Party Now: Donald Trump has secured the GOP nomination for president again this year, but he has failed to win support from some of the party’s most prominent politicians. Mike Pence, his former running mate, refuses to endorse him. So does Utah Sen. Mitt Romney, the party’s nominee in 2012; his running mate, former U.S. House Speaker Paul Ryan; and the previous Republican president George W. Bush, along with plenty of officials from Trump’s first term in office.

Does any of this matter? The value of endorsements is often exaggerated, but how much will these non-endorsements hurt Trump? “In the general election, most Republicans will vote for the Republican candidate, but it probably does help give at least some Republicans a reason to not support him,” says Hans Noel, a political scientist at Georgetown University. “They can say they are not abandoning their party, just like these politicians are not.”

There are clearly a sizable minority of Republicans not enamored with Trump. Nikki Haley, who dropped out of the presidential race two months ago (and hasn’t endorsed Trump), continues to get about 20 percent of the primary vote, including in elections held on Tuesday. Former Pennsylvania Sen. Pat Toomey says he won’t vote for Trump and that a lot of Republicans feel the same way.

But, as Noel suggests, most GOP voters in the end will support Trump, even if they may be reluctant. Polls show, in fact, that more Republicans are satisfied with Trump as their nominee than Democrats are with President Biden. Even when they come out against Trump, most of these former officials aren’t embracing Biden. Announcing his opposition to Trump last week, Ryan, the former speaker, said he would write in another Republican.

On Tuesday, three former Republican senators published a column in the Washington Post titled, “Between Trump and Biden, what should real Republicans do?” They argue that the “traditional brand of Republicanism” is not dead, even though it appears to have been eclipsed by Trump’s “populist, radical version.” The party should return to its core principles of fiscal responsibility, support for free markets and a strong military, they argue.

None of the three has served in the Senate more recently than 1997. No matter what course this election takes, it’s clear that the shape of the post-Trump party will not be determined by the former GOP stalwarts who now oppose him. “For most Republicans,” Noel says, “these old-school Republicans are just seen as out of touch with the direction of the party.”

Baltimore Mayor Brandon Scott hugs mother Donna Scott before declaring victory during primary election night watch party
Baltimore Mayor Brandon Scott is on his way to a second term.
Kenneth K. Lam/TNS
Odds and Ends: Baltimore Mayor Brandon Scott won the key Democratic primary for re-election on Tuesday, outlasting former Mayor Sheila Dixon. Voters credited Scott for a decrease in crime and his response to the Francis Scott Key Bridge collapse…

In Anchorage, Mayor Dave Bronson lost in a runoff against Suzanne LaFrance, a former chair of the Anchorage Assembly, the equivalent of a city council…

Democrats in the Missouri Senate set a record Wednesday morning as their filibuster passed the 41-hour mark. They are objecting to proposed changes in the state’s initiative petition process…

Texas House Speaker Dade Phelan appears likely to lose his seat in a runoff later this month. Nevertheless, last week he gamely released a list of his priorities for next year’s session, including school vouchers and a reduction in property taxes.

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Alan Greenblatt is the editor of Governing. He can be found on Twitter at @AlanGreenblatt.
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