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Analysis

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
The chambers of the Wisconsin Supreme Court located in the State Capitol in Madison, Wisconsin.
Box5/Getty

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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.