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The Pennsylvania State Capitol in Harrisburg, Penn.
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Americans have learned the hard way that Governors and legislatures aren’t the only state decision makers. Supreme Court judges are also on the ballot across the country next week and they are crucial for the direction of state law and (alas) policy.
Parties and interest groups are spending millions in high-court races in Illinois, Michigan, North Carolina, Ohio, Montana and Kentucky. The outcomes will decide whether these courts act as neutral arbiters of the law, or too often become laws unto themselves. At stake are issues ranging from abortion to election law to economic freedom. The stakes are even higher now that the U.S. Supreme Court is re-establishing some federalist principles and returning more power to the states.
A case in blatant point is Pennsylvania’s elected Supreme Court, which in 2020 rewrote black-letter election law. A state statute clearly says mail ballots must be received by 8 p.m. on Election Day. Yet despite admitting there was “no ambiguity” about this deadline, a 4-3 high court majority decreed a Covid exception, and said even ballots arriving three days late and without a postmark would be valid.
The Pennsylvania and North Carolina high courts have also thrown out their state legislatures’ redistricting maps, unilaterally imposing different versions. North Carolina’s court ruled in a wild August opinion that the state GOP’s map is grounds to overturn two voter-approved constitutional amendments.
Ohio Chief Justice
Maureen O’Connor,
a Republican, sided with her liberal minority to overturn that state’s new election maps. These battles may grow more frequent after the U.S. Supreme Court’s 2019 ruling that state legislative gerrymandering isn’t reviewable by federal courts.
A common thread in these decisions is the National Democratic Redistricting Committee (NDRC), created by former U.S. Attorney General
Eric Holder.
The NDRC plowed money into winning seats on the Pennsylvania court in 2015, and North Carolina in 2018 and 2020.
Republicans are now trying to catch up. The Republican State Leadership Committee in 2019 helped to block the left’s effort to capture the Wisconsin Supreme Court. This year that court bowed to the Legislature’s redistricting map.
The GOP this year sees a chance to flip one of two seats currently held by liberal justices on North Carolina’s high court, reversing the 4-3 Democratic majority. Republicans are also targeting the narrowly divided Michigan Supreme Court (which they lost two years ago), and they are making a run at the 4-3 Democratic Illinois high court, after new judicial maps made two seats more competitive.
Also in play is Ohio, where conservatives still hold a narrow majority but have lost seats in recent years. Three Republican seats are on the ballot, including that of the retiring Justice O’Connor. Montana judicial elections are technically nonpartisan, but the state GOP is spending to defeat Justice
Ingrid Gustafson,
part of a majority that in September blocked new state laws banning ballot harvesting and same-day election registration.
In Kentucky, four of seven court seats will be open at the end of this year, and three are contested this cycle. Kentucky has nonpartisan judicial elections, but the court skews left.
Judicial elections were once sleepy affairs, but in this polarized political era they are more important than ever. If Americans want to know their vote for elected representative counts, they’ll also have to elect a state judiciary that puts the law above policy preferences.
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