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Fair Courts E-Lert: “Law and Order” and “Tough-on-Crime” Themes Persist in State Supreme Court Elections

This Fair Courts E-Lert highlights the persistence of “law and order” themes in the 2020 state supreme court elections, the Michigan Supreme Court’s switch to a Democratic majority, and more.

Last Updated: November 13, 2020
Published: July 15, 2021

“Law and Order” and “Tough-on-Crime” Themes Persist in State Supreme Court Elections

On November 3, 30states held state supreme court elections. As the Marshall Project reports, the many of these races featured “law and order” and “tough-on-crime” rhetoric despite months of protests that took place over the summer about inequities in the criminal legal system.

In Illinois, for example, a dark money group called the “Clean Courts Committee” ran an ad against Illinois Supreme Court Justice Thomas Kilbride asking “what kind of judge releases child rapists?,” while Justice Kilbride spent $432,690 on an ad saying he was “endorsed by law enforcement for being tough on crime and political corruption.” Ads with similar themes were also run in Michigan, North Carolina, and Ohio.

For this year’s election cycle, there was only one state supreme court candidate who criticized his opponent for being too tough on crime: Nevada state supreme court candidate Ozzie Fumo. Fumo, a defense attorney and Nevada state assembly member, ran an ad condemning his opponent, district court judge Douglas Herndon, for prosecuting an individual who was later proven innocent. Herndon, who was backed by Republican donor Sheldon Adelson, outspent Fumo by $300,000 and ultimately prevailed.

Michigan Supreme Court Flips to Democratic Control

On November 3, two candidates endorsed by the Democratic party won seats on the Michigan Supreme Court, flipping the court’s partisan balance to a 4–3 Democratic majority.

Six candidates vied for the two seats. Chief Justice Bridget Mary McCormack retained her seat and attorney Elizabeth Welch won the seat vacated by conservative Justice Stephen Markman. In all, $1.46 million was spent on television ads in the race, nearly $1.4 million of which was spent in favor of McCormack and Welch. Michigan Live reports that by the end of October, the two Democratic victors benefitted from over $4 million in outside spending (including spending on TV ads, mail, digital advertising, and more), while their Republican opponents had about $1.3 million combined.

Michigan is due to redraw its districts in 2021 using a recently adopted independent commission and experts have said that the outcome of this election could have a significant influence ensuring that the process is faithfully implemented.

Last year, a federal court ordered the Michigan legislature to redraw the state’s district lines, finding that they were drawn to favor Republicans. The U.S. Supreme Court vacated that decision in light of its ruling that federal courts cannot decide partisan gerrymandering cases. Now, a Democratic Michigan Supreme Court could “reduce [partisan] gerrymandering,” according to Leah Litman, a law professor at the University of Michigan.

Illinois Supreme Court Justice Kilbride Ousted in Record-Breaking Retention Election

Illinois Supreme Court Justice Thomas Kilbride conceded defeat on November 3 after failing to receive the 60 percent of the vote required for him to remain on the court for a third 10-year term. Kilbride, who first joined the court in 2000, received only 56 percent of the vote, according to the New York Times.

According to the Chicago Tribune, spending against and in support of Kilbride’s retention reached a record-setting $10.7 million because the outcome of his election could upend the court’s 4–3 Democratic majority. Kilbride was accused by opponents of being beholden to state House Speaker Mike Madigan, who has contributed $2.6 million to Kilbride over the years and is under federal investigation..”

On November 10, the Illinois Supreme Court voted unanimously to appoint appellate court Judge Robert Carter, elected to the bench as a Democrat, to serve as Kilbride’s replacement until a new justice is elected in 2022. With Carter’s appointment, the court remains at a 4–3 Democratic majority until that election.

Kentucky Voters Reject Ballot Initiative to Increase Terms and Qualifications for District Judges

Nearly 70 percent of voters in Kentucky rejected a constitutional amendment on November 3 that would have extended the terms of district court judges, who handle a range of cases from juvenile matters to misdemeanors, traffic offenses, and small civil cases, from four years to eight. The amendment would have also increased the amount of legal experience required for district court judges from two years to eight years.

Supporters of the amendment argued it would attract more diverse and qualified candidates, and that these changes were necessary because district courts handle 92% of all cases in the state’s court of justice and their caseloads have gotten more demanding. Opponents of the amendment said these changes would deter rural applicants and make district court judges less accountable to voters because they would not be able to weigh in on their performance as often.

J. Foster Cotthoff, a district judge and president of the Kentucky District Judges Association, said one reason the amendment failed was because proponents did not have enough resources to educate voters. He also said it seemed like voters did not want longer terms for district court judges.