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Analysis

Two Women of Color Won State Supreme Court Races — and Sadly, That’s Progress

It was a big deal for these two women to win. But it just shows how woefully non-diverse so many crucial state supreme courts are.

November 12, 2018

Cross-posted from the Daily Beast.

This week, civil rights attor­ney Anita Earls in North Caro­lina and appel­late judge Melody Stew­art in Ohio became the first non-incum­bent women of color to win a state supreme court elec­tion in at least 18 years — and Stew­art the first African-Amer­ican woman ever elec­ted to the Ohio Supreme Court. It’s a break­through for judi­cial diversity, but it also reveals just how little progress we’ve made in making the bench reflect the communit­ies they serve.

With intense polit­ical contests up and down the ballot this year, you’d be forgiven for miss­ing that 29 states held elec­tions for their state supreme courts Tues­day. While these courts don’t draw the same head­lines as the U.S. Supreme Court, they’re just as likely to impact our lives. Ninety-five percent of all cases are filed in state court, and state supreme courts are the final word for most state law issues, ruling on everything from envir­on­mental regu­la­tions to repro­duct­ive rights.

That’s partly why the lack of diversity is so appalling. In 2016, nearly half of all state supreme courts did not have a single justice of color – and nearly 70 percent did not have a single woman of color serving as a justice. This lack of diverse perspect­ives can impov­er­ish judi­cial decision-making and harm public confid­ence in the objectiv­ity and fair­ness of the judi­cial system. 

While a lack of judi­cial diversity is an issue in states that appoint justices as well as in states that elect them, we at the Bren­nan Center looked specific­ally into where diverse candid­ates might be facing hurdles in the 22 states where justices must compete in contested elec­tions to reach the bench.

No Change in Two Decades

Our analysis suggests that people of color are under­rep­res­en­ted every step of the way. Although people of color are over 39 percent of the over­all popu­la­tion of the United States, they made up some 12 percent of state supreme court candid­ates in 2017–18. Remark­ably, this is the same percent­age of candid­ates who were people of color in 2001–02, nearly two decades earlier. 

Minor­ity candid­ates also win at lower rates than white candid­ates. Only 15 percent of non-incum­bent candid­ates of color have won open seat races, compared with just over a third of white candid­ates. Simil­arly, 3.4 percent of chal­lengers who are people of color have won, compared with just over 14.3 percent of white chal­lengers.

When minor­ity candid­ates do reach the bench, as incum­bents they also lose more frequently than their white coun­ter­parts. Minor­ity incum­bents have won 81 percent of their contest­able elec­tions, compared with a 90 percent success rate for white incum­bents. 

The head­winds for women of color are partic­u­larly strong. From 2000 to 2016, only 3 percent of the 589 chal­lengers or open seat candid­ates for whom we were able to identify race and gender were women of color — 20 candid­ates in total. All 20 lost.

The First Hurdle: Money

The reas­ons for these dispar­it­ies are complex. For example, we know that many minor­ity candid­ates face obstacles to accu­mu­lat­ing suffi­cient war chests – and that the pres­sure to fundraise can dissuade candid­ates from throw­ing their hats into the ring in the first place. Notably, our analysis found that while people of color running for state high courts are more likely to have prior judi­cial exper­i­ence than white candid­ates, on aver­age they raise fewer funds for their campaigns. 

Supreme court races have also seen their share of racial dog whistle ads and racial bias among voters, while stud­ies have found that in some states having a last name with a strong ethnic asso­ci­ation can give judi­cial candid­ates a leg up – or down. An Asian judge in Illinois, Sandra Otaka, recoun­ted, for example, that she was advised to add an apostrophe after the O in her name to give herself a better chance at winning in a state where Irish surnames over­per­form. 

At the same time, it’s also clear that states can reduce hurdles for candid­ates of color. Evid­ence suggests, for example, that public finan­cing reduces barri­ers to entry to the polit­ical process, making it easier for people of color to compete. Voters are also more likely to turn to racial or ethnic stereo­types when they lack other inform­a­tion about candid­ates — high­light­ing the import­ance of voter guides and judi­cial perform­ance eval­u­ations for these typic­ally low-inform­a­tion races. 

Why were Anita Earls and Melody Stew­art excep­tions to these broader trends? Earls, a prom­in­ent civil rights attor­ney, was not a typical candid­ate in many ways. She was able to attract major finan­cial back­ing, rais­ing over three times as much money as her incum­bent oppon­ent, and bene­fit­ing from over $700,000 of advert­ise­ments from an outside group. A series of changes to judi­cial selec­tion in the state by the Repub­lican-controlled legis­lature — inten­ded to bene­fit their own party — also back­fired, most notably a decision to cancel judi­cial primar­ies, which resul­ted in two Repub­lican candid­ates squar­ing off in the general elec­tion.

And both Earls and Stew­art benefited from running as Demo­crats when local­it­ies across the coun­try saw a blue wave. Yet while Earls and Stew­art won their races, only five women of color chal­lenged for a supreme court seat this year — and the other three candid­ates lost their races. It should­n’t take a perfect storm of candid­ates and condi­tions to achieve a more repres­ent­at­ive bench. And we should­n’t need to wait another 18 years for the next woman of color to win a high court elec­tion as a non-incum­bent.

(Image: Shut­ter­stock)