State courts were on the ballot last Tuesday as voters in 29 states decided who would sit on their courts. In addition, voters in North Carolina decided whether partisan legislators would have a greater role in picking judges. Across the country, there have been myriad attempts to politicize state courts. However, election returns show mixed results for those hardball tactics.
Nontransparent outside spending is one popular means for influencing judicial elections. It’s also one of the biggest threats to judicial independence and public confidence in courts. Even while this year saw less TV spending than comparable election cycles — $10.7 million this year, according to estimates provided by Kantar Media/CMAG compared with $15 million 2014 — some of the most worrying spending trends solidified.
Most strikingly, the people behind these TV ads are as unaccountable as ever. Early estimates show that in 2018, outside groups were responsible for approximately 47 percent of all spending on TV ads run in state supreme court races. That marks a record for outside spending in a midterm election year. What’s worse, undisclosed donors paid for the vast majority of these groups’ $5 million in TV ads. That’s consistent with ongoing trends: In 2016, for example, 82 percent of all outside spending was nontransparent.
Outside spending may have carried the day in North Carolina and West Virginia, where two outside groups on the left and right spent generously to support the eventual winners. North Carolina Families First spent $700,000, and the Republican State Leadership Committee’s Judicial Fairness Initiative spent $1.7 million in West Virginia. Neither group discloses their donors in a way that lets the public know who is so invested in getting their favored judge on the bench.
In some states, though, this opaque spending may not have had its intended effect. In Arkansas, voters reelected Justice Courtney Goodson, the subject of attack ads so misleading that an Arkansas judge prohibited a TV station from running them. Goodson won despite $1.9 million worth of opposition from the Republican State Leadership Committee and $500,000 in attack ads from the Judicial Crisis Network, which was the biggest spender in Brett Kavanaugh’s nomination fight. The Republican State Leadership Committee also lost two lower court races in Arkansas and West Virginia that they waded into with five- and six-figure sums.
And it wasn’t just outside groups whose efforts to politicize courts failed at times. Michigan Supreme Court Justice Elizabeth Clement won her race despite her own party’s attempts to punish her for a decision she made while on the bench.
Earlier this year, a prominent Republican threatened the party would withdraw support for Clement, herself a Republican, if she voted against the party’s interests in a case about a redistricting ballot measure. After Clement voted against the party’s interests, party members distributed flyers opposing her at the party convention, where she was endorsed over a chorus of boos, and omitted her name from campaign materials.
The political pressure on Clement showed up most clearly in TV spending. The Michigan Republican Party and Chamber of Commerce each ran ads supporting both Clement and her colleague Kurtis Wilder. But the groups spent $600,000 on ads mentioning Wilder alone and only $80,000 on those that included both Wilder and Clement. Despite this political subterfuge, voters kept Clement on the bench while Wilder, who sided with the party in the redistricting decision, lost his seat.
North Carolina voters also overwhelmingly rejected a legislative effort to inject more politics into their system for picking judges. Following years of moves by the legislature’s Republican supermajority to hamstring courts, that supermajority dispensed with the charade and tried to give themselves the power to pick some judges. Voters rejected that proposal with 66 percent of the vote, a larger margin than supported or opposed any of the five other constitutional amendments on the ballot.
In the same state, though, some of the most troubling aspects of judicial elections were still on full display. North Carolina Families First spent $700,000 in nontransparent funds supporting Democratic candidate Anita Earls. Meanwhile, Earls’s opponent, sitting North Carolina Supreme Court Justice Barbara Jackson, ran a race-baiting ad about sanctuary cities imploring voters to “stop the liberals.” When pressed about why she used these dog-whistle tactics, Justice Jackson said she wanted to identify herself as a “conservative” and only had so much time to “draw voters’ attention.”
The public should not have to endure the politicization of their courts. Stronger disclosure and recusal rules would inform voters about the groups behind the election ads, like Republican State Leadership Committee and Families First, and prohibit judges from hearing cases involving groups and funders that supported them. States could also replace judicial elections with accountable appointment systems or limit elected judges to single terms. These measures would ensure that judges don’t need to worry about staying in the good graces of a political party or a major campaign donor once they reach the bench.
Attention on state courts is poised to grow as progressives seek an alternative to the newly formulated U.S. Supreme Court. As a result, we should take steps to insulate judges from attempts to politicize state courts, which we should expect to continue or even intensify.