Under-the-Radar Pennsylvania Supreme Court Race Going to Voters

An opening on Pennsylvania’s Supreme Court is forcing Republican primary voters to decide whether to back a judge who briefly stalled Pennsylvania’s certification of Joe Biden’s narrow victory in the 2020 presidential election.

Those voters on May 16 will choose between Commonwealth Court Judge Patricia McCullough—whose order in the presidential vote case was vacated by the state’s highest court—or the party-endorsed choice, Montgomery County Court of Common Pleas Judge Carolyn Carluccio.

It’s been a low-profile contest so far, in sharp contrast with the only other state with a Supreme Court election in 2023.

Combined, all four of the Pennsylvania candidates have raised less than $1 million, according to state campaign finance data. In less-populated Wisconsin, ad spending topped $6 million in the primary and by the general election the total exceeded $31 million, making it the nation’s most expensive judicial contest ever.

Photos from campaign websites

Candidates for Pennsylvania’s open Supreme Court seat include, from left, Montgomery County Court of Common Pleas Judge Carolyn Carluccio (R), Commonwealth Court Judge Patricia McCullough (R); Pennsylvania Superior Court Judge Daniel McCaffery (D), and Pennsylvania Superior Court Judge Deborah Kunselman (D). McCaffery and Carluccio have their parties’ endorsements.

“It’s a small amount of money for a state this size,” Chris Bonneau, a political science professor at the University of Pittsburgh, said in an interview.

A key difference between the two states: the philosophical balance of Pennsylvania’s top court won’t flip no matter who fills the seat left open by the death of former Chief Justice Max Baer (D). The newcomer will join four Democrats and two Republicans.

It’s likely that whoever is elected would play a key role in election litigation and other issues, said Michael Nelson, a Penn State University political science professor.

A Republican victory would nudge the court’s composition “closer to parity,” he said in an email.

Two Pennsylvania Superior Court judges are vying for the Democratic nomination: Deborah Kunselman and Daniel McCaffery.

The Pennsylvania Bar Association Judicial Evaluation Commission rates Carluccio, Kunselman and McCaffery as “highly recommended.”

All noted a “passion for the law” and broad legal experience in trial, family, and criminal court proceedings in their replies to the commission’s questionnaire. McCullough didn’t participate in the commission’s evaluation process and was rated “not recommended.”

Party Endorsements

The Pennsylvania Democratic Party endorsed McCaffery, who served as an assistant district attorney in Philadelphia and as a judge on the Philadelphia Court of Common Pleas before his election to the Superior Court in 2019.

“Democratic institutions including the judiciary are under duress,” McCaffery wrote in his questionnaire for the bar’s judicial evaluation commission. “These attacks have undermined the confidence of the American public in our courts. If elected, my priority will be to approach every case in a non-partisan manner.”

McCaffery also is the brother of a former Pennsylvania Supreme Court justice—Seamus McCaffery (D), who retired in 2014 following a suspension imposed by his fellow justices amid allegations of misconduct, including exchanging emails containing pornography with employees of the state attorney general’s office.

Kunselman was a judge in the Court of Common Pleas of Beaver County before she was elected to the Superior Court in 2017. Since then she’s “worked on approximately 3,000 appeals,” she wrote in her questionnaire.

The Republican Party of Pennsylvania endorsed Carluccio, saying she’ll bring “unmatched experience, proven temperament, and unquestionable impartiality to Pennsylvania’s highest court.”

She’s a former chief public defender and chief deputy solicitor for Montgomery County, in the Philadelphia suburbs, and was a federal prosecutor in Delaware.

Few TV ads have aired, according to the commercial-tracking firm AdImpact.

Spots promoting Carluccio and McCaffery have run in the Philadelphia market, while the Republican State Leadership Committee, a national organization, put up an ad in McCullough’s home area, the Pittsburgh media market. That ad criticizes McCullough, linking her to the criminal case that put her husband behind bars while describing Carluccio as “tough on crime.”

Endorsement Reliance

Carluccio and McCaffery may be relying on their party endorsements before gearing up for the general election, Bonneau said.

The Pennsylvania ballot will list each candidate’s home county. Since the names won’t be familiar, candidates from population centers may be relying on voters in a low-turnout primary going with the closest neighbor, he said.

“You would think that the candidates from Philadelphia have an advantage, depending on turnout,” Bonneau said.

McCullough currently sits on the Commonwealth Court. Nearly all her campaign funding has come from a $10,000 contribution from Friends of Doug Mastriano, a state senator who built much of his gubernatorial bid last year around lies about election fraud in Biden’s 2020 win over former President Donald Trump.

In 2020, McCullough ordered state officials to halt the certification for the state’s presidential election results. The Supreme Court vacated that order days later.

Amid Pennsylvania’s congressional redistricting process last year, McCullough recommended the state adopt a GOP-drawn redistricting plan vetoed by former Gov. Tom Wolf (D). The Supreme Court rejected her recommendations.

Among the accomplishments she lists on one of her campaign fliers is her joining a majority Commonwealth Court opinion finding a no-excuse vote-by-mail law was unconstitutional. The Supreme Court reversed that decision and upheld the law, which passed in 2019 with bipartisan support.

McCullough previously ran for an open Supreme Court seat in 2021, an election won by Justice Kevin Brobson (R). At the time, McCullough’s husband, a former Allegheny County council member, was beginning a prison sentence. He was released in February, according to state inmate and parolee records.

To contact the reporter on this story: Jennifer Kay in Philadelphia at jkay@bloomberglaw.com

To contact the editors responsible for this story: Andrew Childers at achilders@bloomberglaw.com; Katherine Rizzo at krizzo@bgov.com; Bennett Roth at broth@bgov.com