With the nation’s attention fixed firmly upon the all-but-certain elevation of Amy Coney Barrett to the U.S. Supreme Court, largely overlooked is the high court drama taking place outside the Beltway.
A total of 35 states are conducting Supreme Court elections this year, with 73 of 344 judicial seats up for grabs. Court watchers are particularly interested in Ohio and Michigan, where the ideological balance may shift from right to left.
Among the top issues for courts in the states? Litigation arising from redistricting challenges, thanks to a 2019 U.S. Supreme Court decision that effectively took such decisions out of the hands of federal courts.The shift is one example of why state supreme court races are so important this year, said Douglas Keith, a state courts expert at the Brennan Center.
“The U.S. Supreme Court, given opportunities in the last few years to say, ‘Extreme, partisan gerrymandering is actually counter to the Constitution,’ has dumped the issue,” he told Bloomberg Government.
The Money Race
Who wins will depend not just on qualifications alone, but also on which candidates—and which outside, “dark money” advocacy groups—are able to raise the most cash.
A total of $28.9 million in donations (not including outside spending)went to judicial candidates in the 2017-2018 cycle, and that total has already been surpassed, according to an analysis of data provided by the National Institute on Money in Politics, a nonpartisan, nonprofit group that gathers data from every state.
Among the most prolific donors? Lawyers and law firms, many who may well end up arguing cases before the same judges they are giving money to—a phenomenon that critics say can affect the behavior of judges on the bench.
Other major financial players include businesses, state parties, labor unions and ideological nonprofits—groups that can raise unlimited amounts from anonymous sources and use the funds to buy attack ads in the waning days of elections. The totals include loans from the candidates to their campaigns.
Most state judicial races are considered nonpartisan — in theory, anyway. Candidates in Ohio reach the ballot via a party primary, while in Michigan, they are nominated by a party convention. On the ballot, though, candidates won’t have an “R” or a “D” by their names.
Swing State Battles
In Michigan, two seats on the conservative-majority court are in play.
The court recently ruled that Gov. Gretchen Whitmer, a Democrat, did not have unilateral authority to renew executive orders relating to Covid-19 restrictions beyond April 30 without legislative approval. Unlock Michigan, a group pushing to repeal the state law governing emergency declarations, is concerned that progressive judges would reverse that Oct. 2 decision.
“The ruling was authored by a justice who is retiring from the court,” and more progressive justices could be open to revisiting the decision, spokesman Fred Wszolek said. “The law isn’t dead until it’s taken off the books entirely.”
The Republicans nominated Mary Beth Kelly, former senior assistant county prosecutor, and Michigan Court of Appeals Judge Brock Swartzle for the bench.
On the Democratic side, Chief Justice Bridget McCormack is up for re-election and East Grand Rapids School Board Trustee and attorney Elizabeth Welch is running to fill the seat of retiring Justice Stephen Markman.
Michigan Union Money
Swartzle has raised about $186,000, with the biggest donations coming from members of DeVos family, relatives of Education Secretary Betsy DeVos, according to a Bloomberg Government analysis of state data through September. Kelly has also raised about $186,000.
Those totals are dwarfed by their far-better-funded opponents.
McCormack has received than $820,000in contributions, with nearly $200,000 coming from labor unions and more than $260,000 coming from lawyers, the data show. Welch has received more than $880,000 in contributions, with at least $196,000 coming from labor unions.
If both win, the state court’s ideological balance shifts from 4-3 favoring conservatives to favoring progressives.
Ohio’s Cash Contest
Like Michigan, the longtime GOP control of the Ohio Supreme Court is in jeopardy.
Incumbent Republicans, Justices Judith French and Sharon Kennedy, are being challenged by Democrats Jennifer Brunner and John P. O’Donnell, respectively. A win by both Democrats would give the left a 4-3 majority.
Brunner is a former Ohio Secretary of State—the only woman to hold that post in state history—and current judge on the 10th District Court of Appeals. O’Donnell, who is making his third run for the high court, is a Cuyahoga County Common Pleas Court judge.
French has raised more than $1.1 million. Kennedy has raised $1.5 million in 2019-2020. Brunner and O’Donnell have raised $760,000 and $550,000, respectively, with the top donor for both candidates being the Ohio Democratic Party.
While the election is less than two weeks away, the fundraising dynamic likely will change as outside groups dump huge sums into ad campaigns at the last minute, a trend increasingly documented since the U.S. Supreme Court’s 2010 Citizens United decision allowed corporations and outside groups to spend unlimited funds on elections.
For example, the Republican State Leadership Committee’s Judicial Fairness Initiative is targeting Brunner’s candidacy in Ohio, with new ads questioning her judgment in a case against a teacher accused of using a hidden camera to record underage girls undressing.
Among the RSLC’s biggest backers is the nonprofit Judicial Crisis Network, which gave $3.2 million to the group, according to its 2018 tax filing. The nonprofit is also running ads backing the confirmation of Coney Barrett for the U.S. Supreme Court.
Republicans are applying a decades-old playbook they designed to take control of more statehouses to high court benches in the states, said Nancy Martorano Miller, a University of Dayton political science professor.
“Just like control of the state legislature is important in a redistricting year, both parties have realized that potentially having control of their state supreme court in case of a discrepancy or an argument, that’s going to be important,” Martorano Miller said.
Unlike the often-criticized outside groups, candidates are constrained as to how they raise money, Ohio State political science professor Paul Beck said.
“They can’t appear to be so partisan. They can’t go to traditional fundraisers,” Beck said. “But they know who has been supportive and who has not.”
Both the Ohio and Michigan high courts can expect to be asked to consider the validity of maps produced by recently revised redistricting protocols.
Ohio’s state constitution now requires bipartisanship when redrawing congressional districts. Michigan created an independent redistricting commission in 2018 to draw state legislative and congressional maps.
In June 2019, the U.S. Supreme Court ruled in Rucho v. Common Cause that federal courts had no constitutional authority to throw out district maps for being too partisan.
That opens the door for state supreme courts to become “venues where some of these disputes could prevail, where the federal courts could be more closed off,” the Brennan Center’s Keith said.
State supreme courts in North Carolina and Pennsylvania have done so, striking down political gerrymandering for violating free elections clauses in their state constitutions.
Ohio now requires the redistricting maps to not intentionally disadvantage a political party. If there isn’t a bipartisan consensus on the maps when they’re drawn, they will inevitably go to court.
Unique to States
Unlike the federal government, elections are the norm in filling the bench in state courts.
The practice has been criticized by organizations like the Brennan Center that say judges’ behavior could be influenced by campaign contributions, though historically, judicial elections were a response to corruption.
State lawmakers once largely appointed judges, which meant they could easily oust someone who ruled against their legislation, Dayton’s Martorano Miller said.
Elections were supposed to insulate the bench from political control and make judges more accountable to the people, “but unless something really big happens, I don’t think the average citizen is aware of the individual decisions their state or local judges are making,” Martorano Miller said.
— Data Editor Christina Brady assisted with this report.
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