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Money Pours Into State Judicial Elections

As state judges become the primary enforcers of civil rights, big money seeks to influence them.

January 25, 2022

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In 38 states, supreme court judges must stand for elec­tion. These elec­tions take vari­ous forms — partisan, nonpar­tisan, or uncon­tested reten­tion elec­tions, in which citizens vote simply to keep or remove a judge — but, histor­ic­ally speak­ing, most of them were low-profile affairs. In recent elec­tions, however, unpre­ced­en­ted amounts of money have poured into these campaigns. The 2019–2020 elec­tion cycle set a record for spend­ing on state justice elec­tions, with $97 million spent on the races nation­wide, accord­ing to a Bren­nan Center report released today.

For many years, the forces driv­ing this spend­ing were clear: economic interests, in partic­u­lar, back­ing candid­ates for reas­ons having to do with envir­on­mental regu­la­tion, labor law, tort law, and the like. (Even if the ads purchased were about crim­inal justice.) Now a new factor may be involved: the with­drawal of the U.S. Supreme Court from enfor­cing civil rights and voting rights. In 2019, for example, the justices concluded that partisan gerry­man­der­ing was not justi­ciable under the U.S. Consti­tu­tion. The decision shif­ted the voting rights battle­field from Wash­ing­ton, D.C. to fifty differ­ent state courts. The same is increas­ingly true of repro­duct­ive rights, marriage equal­ity, and educa­tion policy. In all of these areas of law, state supreme courts are no longer way stations on the path to the U.S. Supreme Court, but inde­pend­ent loci of power. 

Where power goes, money follows. Spend­ing on judi­cial elec­tions has skyrock­eted in many states. In 2019, Wiscon­sin held its most expens­ive state supreme court race ever, but the record only lasted one year — nearly $10 million was spent to secure a single seat on the state’s high court in 2020. North Caro­lina wasn’t far behind, with a single seat gener­at­ing more than $6 million in spend­ing.

Spend­ing by outside interest groups, rather than fundrais­ing by the candid­ates, drives much of the nation­wide spike. Interest groups spent $35 million on advert­ise­ments and other elec­tion activ­it­ies in 2019–2020, more than double the totals spent in previ­ous elec­tion cycles. In Michigan and Wiscon­sin, outside groups spent more than the candid­ates them­selves. These spend­ers include dark money groups such as the Judi­cial Confirm­a­tion Network (which spent millions to put Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the U.S. Supreme Court) as well as tradi­tional busi­ness interests such as the oil industry.

All this may point to a new and disturb­ing trend. In the past, dereg­u­lat­ory and anti-envir­on­mental interests funded judi­cial elec­tions, making common cause with social conser­vat­ives focused on issues such as abor­tion. Now a new marriage of conveni­ence may be taking place: busi­ness money meld­ing with “stop the steal” agit­a­tion. That’s espe­cially true as the Big Lie comes to domin­ate the Repub­lican Party in many states. If the trend contin­ues, it will pose chal­len­ging ques­tions to the finan­cial forces who typic­ally spend in these races but who profess to know that our elec­tion system must be defen­ded.

Campaign dona­tions to elect state court judges often are not acts of char­ity. Those millions come with strings attached, and the judges know it. A judi­cial candid­ate who wins her race in this elec­tion cycle on the back of a large dona­tion may have to return to the contrib­utor, hat-in-hand, for the next elec­tion. The escal­a­tion of spend­ing repres­ents an escal­a­tion of influ­ence, and a diminu­tion in judi­cial inde­pend­ence, which will ulti­mately under­mine public trust in state courts. 

The Bren­nan Center has also docu­mented attempts by state legis­lat­ors to reduce judi­cial inde­pend­ence, making this a diffi­cult time to be a state judge. While their import­ance is increas­ing, they are caught in a squeeze between big donors and power­ful politi­cians. Watch this space — state judges are set to make head­lines in 2022.