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Analysis

Much Is at Stake in State Supreme Court Elections — Who’s Trying to Influence Them?

State supreme courts have a huge influence on people’s everyday lives, especially when it comes to criminal justice.

September 22, 2020

The pres­id­en­tial elec­tion may be first on voters’ minds this year, but under-the-radar judi­cial races will affect our demo­cracy no matter what happens at the federal level. Across the coun­try, one of every five seats on state high courts is on Novem­ber’s ballot. In all, voters will elect 66 justices in 31 states, includ­ing battle­grounds Michigan, Ohio, and North Caro­lina. As in prior years, the Bren­nan Center will track, analyze, and publish data on spend­ing in each of this Novem­ber’s supreme court elec­tions. (This data and all of the tele­vi­sion ads in these races will be avail­able at our Buying Time resource).

State supreme courts have signi­fic­ant power to limit rights and freedoms. In the spring, high courts in Wiscon­sin and Texas rejec­ted govern­ment offi­cials’ attempts to make voting safer amid the global pandemic. And many state high courts have estab­lished qual­i­fied immunity for police officers, insu­lat­ing them from civil liab­il­ity for miscon­duct.   

At the same time, however, some state high courts have gone much further in protect­ing rights than the U.S. Supreme Court has. Last year, the Kansas Supreme Court held that the state’s consti­tu­tion protects repro­duct­ive choice, regard­less of what SCOTUS decides. And though the U.S. Supreme Court ruled last year that it would not rein in partisan gerry­man­der­ing, state courts in Pennsylvania and North Caro­lina have invoked state consti­tu­tions to strike down partisan manip­u­la­tions of the redis­trict­ing process, reject­ing congres­sional districts in Pennsylvania and both congres­sional and legis­lat­ive districts in North Caro­lina. And while the U.S. Supreme Court green­lit the Trump admin­is­tra­tion’s decision to resume federal execu­tions, the Wash­ing­ton Supreme Court in 2018 declared the death penalty uncon­sti­tu­tional in the state.

With so many crit­ic­ally import­ant judi­cial elec­tions taking place across the coun­try this Novem­ber, several key themes will become appar­ent.

Money will likely flow into Michigan and Ohio, where court major­it­ies are up for grabs. Spend­ing in a partic­u­lar judi­cial elec­tion often balloons when the elec­tion outcome could flip a court’s ideo­lo­gical or partisan balance, ulti­mately alter­ing key decisions. In both states, which hold partisan judi­cial elec­tions, enough seats are up this year to determ­ine whether Demo­crats or Repub­lic­ans comprise a major­ity on their courts. (For more details on how partis­an­ship plays into each of these states’ elec­tions, see our Judi­cial Selec­tion Map).

Intensi­fy­ing the partisan stakes, the result­ing major­it­ies on these courts will likely be in a posi­tion to resolve disputes related to the decen­nial redis­trict­ing that will take place next year for both congres­sional and state legis­lat­ive offices.

National dark money is likely to play an outsize role. Since Citizens United, national special interest groups have dramat­ic­ally expan­ded their pres­ence in state supreme court elec­tions. In the last pres­id­en­tial cycle, these special interest groups accoun­ted for 40 percent of all money spent in state supreme court races across the coun­try, and in some states they were respons­ible for more than three-quar­ters of all spend­ing. The source of much of this money is almost entirely opaque; as a 2017 Bren­nan Center study determ­ined, voters can learn the true source of as little as 20 percent of interest group expendit­ures. This secret money keeps voters from know­ing who is trying to influ­ence their elec­tions, thus obscur­ing conflicts of interest when the interests of secret campaign funders come before the judges they helped elect.

These spend­ers have also been more will­ing than indi­vidual judi­cial candid­ates to run mislead­ing attacks on their oppon­ents. One poten­tial consequence is simul­tan­eously harm­ful and ironic: research suggests that ads labeling partic­u­lar jurists as soft on crime may lead these judges to avoid such attacks by render­ing harsher decisions in crim­inal cases in elec­tion years.

The largest national interest group spender in recent elec­tions has been the Repub­lican State Lead­er­ship Commit­tee (RSLC), which spent $6 million in 2016 and $4 million in 2018 to influ­ence judi­cial elec­tions in five states. The RSLC itself received millions from the Judi­cial Crisis Network, the lead­ing dark money funder of recent SCOTUS nomin­a­tion fights. With the major­it­ies on courts in battle­ground states up for grabs this year, we expect both groups to engage once again.

These elec­tions will not substan­tially improve the dismal lack of racial and ethnic diversity on most supreme courts. Twenty-three states today have all-white high courts, includ­ing 12 states where people of color make up more than 20 percent of the popu­la­tion. At a time when the public is demand­ing racial equity in the justice system, this fail­ure of repres­ent­a­tion under­mines public confid­ence, renders judi­cial decision-making less informed, and in some states contin­ues the devel­op­ment of centur­ies of legal juris­pru­dence without the perspect­ives of judges of color. Six states with an all-white bench are hold­ing a supreme court elec­tion this Novem­ber, and in each one, voters will confront exclus­ively white candid­ates on the ballot. Among them are Nevada, Alabama, and Michigan, where people of color make up more than a quarter of each state’s popu­la­tion.

Judi­cial elec­tions will take place amid wide­spread calls for crim­inal justice reform. At a time when the public is reck­on­ing with the viol­ence perpet­rated by the police and abet­ted by prosec­utors, compar­at­ively little atten­tion has focused on state high courts. Yet state supreme court justices have the final say on ques­tions of state crim­inal law, includ­ing civil immunity for police officers, and they often set statewide judi­cial policy on fees, fines, and related matters. In the past, judges and the interest groups support­ing them have appealed to voters using tough-on-crime rhet­oric, but this year’s elec­tions provide an oppor­tun­ity for courts to address their role in the current move­ment toward a more humane justice system.

State courts hear 95 percent of all court cases in the United States, and in some of the highest-profile policy fights to come — repro­duct­ive rights, access to public educa­tion in the time of a global pandemic, police viol­ence, crim­inal justice reform — these courts will have the final word. We will be watch­ing to see who tries to determ­ine their compos­i­tion in this year’s elec­tions, and you can follow along at Buying Time.