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Court Rules to Regulate Judicial Elections

Spending on races has ballooned and grown secretive. But many state high courts have the power to ensure that justice will not be tainted by money.

Published: June 25, 2024

State courts, and particularly state supreme courts, are on the front lines of high-stakes controversies with national implications — from abortion rights to gerrymandered maps to climate policies. footnote1_fQLRUF2bd56K1For recent state constitutional cases across the country, see “State Case Database,” State Court Report, https://statecourtreport.org/state-case-database. Typically, state high courts have the final say on questions of state law. footnote2_sGXCOU2zWO0c2Douglas Keith, Patrick Berry, and Eric Velasco, The Politics of Judicial Elections, 2017–18, Brennan Center for Justice, 2019, 2, https://www.brennancenter.org/sites/default/files/2019–12/2019_11_Politics%20of%20Judicial%20Elections_FINAL.pdf. In the coming years, these courts are likely to take on even greater importance as the federal judiciary shuts its doors to litigation involving fundamental rights.

Thirty-eight states elect their high court judges. footnote3_yqr8UvalKTaO3Brennan Center for Justice, “Judicial Selection: An Interactive Map,” last updated October 11, 2022, https://judicialselectionmap.brennancenter.org/. These elections — once relatively low cost and quiet — have become more expensive and partisan, increasingly looking like races for political office. In 2021–22, candidates, interest groups, and political parties spent more than $100 million on state supreme court elections, nearly twice as much as in any prior midterm cycle. footnote4_vGk15evbFDJf4This calculation reflects adjustments for inflation. Douglas Keith, The Politics of Judicial Elections, 2021–22, Brennan Center for Justice, 2024, https://www.brennancenter.org/our-work/research-reports/politics-judicial-elections-2021–2022. Wisconsin’s 2023 high court election, which brought a liberal majority to the bench for the first time in 15 years, saw more than $50 million in spending. footnote5_nmIbHTARoi3V5Keith, The Politics of Judicial Elections, 2021–22.

As spending in judicial elections has ballooned, it has also grown secretive. In the 14 years since the U.S. Supreme Court handed down Citizens United v. Federal Election Commission (2010), special interests have channeled more of their spending through super PACs and 501(c)(4) nonprofits, which can raise and spend unlimited amounts of money without disclosing their donors, rather than contributing to the candidates themselves. footnote6_fsxfGL0eK5Ot6In Citizens United, the U.S. Supreme Court struck down limits on election spending by corporations and unions, as long as it is done independently of candidates. Citizens United v. Federal Election Commission, 558 U.S. 310 (2010). Lower courts have interpreted Citizens United to likewise prohibit states from limiting contributions to groups that do not coordinate with candidates and political parties. See SpeechNow.org v. Federal Election Commission, 599 F.3d 686 (D.C. Cir. 2010). Recent U.S. Supreme Court rulings, such as Dobbs v. Jackson Women’s Health Organization (2022), have led to a surge of high-profile state court litigation, accelerating these trends. footnote7_fuWcJRHqiuXB7In Dobbs, the U.S. Supreme Court held there is no constitutional right to abortion, overturning Roe v. Wade. Dobbs v. Jackson Women’s Health Org., 597 U.S. 215 (2022).

Today, outside groups are largely unregulated by state campaign finance laws and pose specific challenges with respect to judicial elections:

State legislatures have generally failed to codify stronger disclosure standards or close coordination loopholes. Nor have they strengthened judicial recusal rules or ethics standards. footnote14_rj0D8xbrgpGS14There is technically a difference between disqualification, which is mandatory, and recusal, which is voluntary; however, that difference is often blurred in practice because disqualification can function like recusal in jurisdictions where judges can decide for themselves whether they must step aside from a case. In this report, we use the terms interchangeably but distinguish between voluntary and mandatory recusal. With high-cost state supreme court elections likely here to stay, another mechanism can mitigate the growing influence of outside spending in judicial elections: reforms to judicial ethics rules, which govern the behavior of judicial candidates (including sitting judges running for reelection), and to procedural court rules, which govern court proceedings.

Most state high courts have the power to amend state judicial ethics rules, procedural court rules, or both. To that end, we offer model rules in the appendix that would

  • establish clear standards for when election spending — including direct contributions, independent expenditures, spending that was coordinated with a candidate or their campaign, and contributions to outside groups or political parties that spent in connection with a judge’s election — requires recusal;
  • provide for independent consideration of recusal requests;
  • prohibit judicial candidates and their campaigns from coordinating with outside groups; and
  • require litigants and lawyers to disclose any election spending that they, their counsel, or associated donors made in support of or against the judge assigned to their case or a candidate who opposed the judge.

The model rules in this report are informed by the Brennan Center’s research on spending in judicial elections, recusal standards, and judicial ethics. footnote15_e0ZKe6ZPAm7o15Bannon, Choosing State Judges; Menendez and Samuels, Judicial Recusal Reform; and Adam Skaggs and Andrew Silver, Promoting Fair and Impartial Courts Through Recusal Reform, Brennan Center for Justice, 2011, https://www.brennancenter.org/sites/default/files/2019–08/Report_Promoting_Fair_Courts_2011.pdf. They are also informed by extant rules and can be modified to account for jurisdiction-specific needs. footnote16_zhmhSjunFfKO16Sources include existing state and local laws, state judicial ethics rules, state court rules, and previously proposed revisions to Rule 2.11 of the ABA’s model code. Because the Model Code of Judicial Conduct promulgated by the American Bar Association (ABA) is the primary template for states’ judicial ethics rules, we propose revisions to the ABA’s model code as the basis for our model ethics rules. footnote17_pph3hMRg3vWE17See Tom Lininger, “Green Ethics for Judges,” George Washington Law Review 86 (July 30, 2018): 720, https://www.gwlr.org/green-ethics-for-judges/ (noting that “the vast majority of states have adopted approximately ninety percent of the provisions in the ABA’s boilerplate”).

End Notes