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Analysis

The Wrong Way to Reform Judicial Elections

The Pennsylvania legislature is considering a bill that would undermine the state’s supreme court.

February 7, 2020

In states around the coun­try, judi­cial inde­pend­ence has been under attack. Last year, at least 25 states considered legis­la­tion that would have politi­cized courts or weakened the judi­ciary. 

The latest example comes in Pennsylvania, where state lawmakers are consid­er­ing legis­la­tion that would change the way appel­late judges join or stay on the bench.

Currently, appel­late judges in the state are elec­ted statewide in partisan elec­tions. The bill, H.B. 196, would have voters elect supreme court justices to 10-year terms by district rather than statewide. (The bill also covers two lower level appel­late courts.) This might seem like an innoc­u­ous change, but it in fact makes the process extremely vulner­able to partisan abuse. It was first intro­duced by a Repub­lican in 2017 after Demo­crats gained a 5–2 major­ity on the state’s supreme court.

District-based elec­tions for state supreme court justices are unusual, used by only four states. Under some circum­stances, this way of select­ing judges can bring advant­ages. For example, civil rights groups in Alabama and Arkan­sas have filed lawsuits call­ing for them, arguing that statewide races make it hard for Black voters to elect their preferred judi­cial candid­ates.

But judi­cial districts can also open the door to judi­cial gerry­man­der­ing and other forms of polit­ical games­man­ship. In Pennsylvania, the timing of H.B. 196 — and the amount of discre­tion it leaves to the legis­lature in imple­ment­a­tion — suggest it’s a thinly veiled attempt by the Repub­lican-controlled legis­lature to elim­in­ate the Demo­cratic major­ity on the state supreme court.

Currently, supreme court justices are initially chosen in statewide elec­tion and, after serving for 10 years, stand unop­posed in up or down reten­tion elec­tions. Under H.B. 196, current supreme court justices would be required to run for reelec­tion in one of the new judi­cial districts created by the legis­lature. The bill imposes no restric­tions on the abil­ity of the legis­lature to draw or redraw judi­cial districts, and it gives the legis­lature a say in the timing of the state’s trans­ition to district-based elec­tions. That means judi­cial districts would be vulner­able to partisan manip­u­la­tion, and that a legis­lat­ive major­ity could struc­ture the state’s trans­ition to district-based elec­tions to do maximum harm to justices they disfa­vor.

Incred­ibly, the new rules under the bill could make it impossible for a justice to run for reelec­tion when his or her term is up. All the legis­lature would have to do is draw a new judi­cial district that the justice does not live in. As the Pennsylvania Budget and Policy Center poin­ted out, a Demo­cratic justice from Phil­adelphia is up for reten­tion in 2025, and under H.B. 196, the legis­lature could force him to run for reelec­tion in a new judi­cial district hundreds of miles away.

The bill passed the Repub­lican-controlled House in Decem­ber, and the Repub­lican-controlled Senate, which passed a similar proposal in 2018, is expec­ted to follow suit this session. In order for it to take effect, it would have to be approved by the legis­lature in two consec­ut­ive sessions and then by a refer­en­dum.

H.B. 196 isn’t the only threat to the Pennsylvania Supreme Court. Two years ago, the same Repub­lican-controlled legis­lature attemp­ted to remove four sitting justices — all Demo­crats — after the court struck down the state’s congres­sional map as a partisan gerry­mander.

State supreme court elec­tions across the coun­try are also attract­ing unpre­ced­en­ted amounts of spend­ing by special interest groups seek­ing to influ­ence the outcome of judi­cial elec­tions — and as a consequence, future court decisions. These groups spent $40 million dollars in supreme elec­tions across 21 states during the 2017–18 cycle.

During the 2015–16 elec­tion cycle, Pennsylvania set a national record for aggreg­ate spend­ing in a state supreme court elec­tion. The elec­tion also saw inde­pend­ent spend­ing by groups repres­ent­ing special interests regu­larly involved in cases before the court as well as extens­ive spend­ing by dark-money groups.

Pennsylvani­a’s method of choos­ing judges is in clear need of reform. But any changes to how judges are selec­ted must be designed to protect judi­cial inde­pend­ence and avoid polit­ical and special interest pres­sure on the state’s judi­ciary. Adopt­ing a lengthy single “one and done” term for supreme court justices and a publicly account­able appoint­ment process would help accom­plish those goals. A bill previ­ously under consid­er­a­tion would have replaced the state’s partisan judi­cial elec­tions with a merit-based selec­tion system, which would also be a step in the right direc­tion.

Judges aren’t politi­cians, even when they’re elec­ted by voters. And their role in our demo­cracy is to serve as an inde­pend­ent check on the polit­ical branches. Legis­lat­ive attempts to manip­u­late courts under­mine that vital func­tion.