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Fair Courts E-Lert: Brennan Center Releases New Report, The Politics of Judicial Elections 2017–18

This Fair Courts E-Lert highlights a new Brennan Center report, The Politics of Judicial Elections 2017–18, SCOTUS’s decision to hear a case on whether states can impose a partisan balancing requirement on their courts, and more.

Published: December 20, 2019

Brennan Center Releases New Report, The Politics of Judicial Elections 2017–18

On December 11, the Brennan Center for Justice released a new report,  The Politics of Judicial Elections, 2017–18: How Dark Money, Interest Groups, and Big Donors Shape State High Courts, analyzing spending in state supreme court elections during the 2017–18 election cycle. The report, based on data from the National Institute on Money in Politics, found that $39.7 million was spent in 48 races to elect state supreme court judges in 21 states.

Among the report’s findings were that special interest groups accounted for 27 percent of every dollar spent in state supreme court campaigns, and that eight of the ten biggest spenders did not disclose the source of their funds. For example, Arkansas saw the most outside spending with over $2.8 million, which made up 84 percent of all the state’s spending. Much of this outside spending in Arkansas came from the Judicial Crisis Network, a group which spent $10 million last year to support Brett Kavanaugh’s nomination to the U.S. Supreme Court.

Other major findings include the biggest source of dark money was likely the Judicial Crisis Network and states have made little progress towards achieving more diverse state supreme court benches. The report argues that the continued proliferation of expensive and politicized elections threatens the hope of equal justice for all.

Supreme Court

SCOTUS to Decide Constitutionality of Delaware’s Political Balancing Requirement for Courts

On December 6, the U.S. Supreme Court agreed to hear a case that could have major implications for how states design their judicial selection systems. The case may also present an opportunity for the justices to revisit the states’ interests in protecting judicial integrity and public confidence last articulated by the Court in Williams-Yulee v. Florida Bar.

The case, Carney v. Adams, deals with provisions of Delaware’s constitution that require the state’s judiciary to be politically balanced and require judges to be members of the two major political parties. The U.S. Court of Appeals for the Third Circuit struck down the political balancing requirement last year, concluding that the provision violated the First Amendment of the U.S. Constitution.

As reported by the Washington Post, James R. Adams, “a retired lawyer who left the Democratic Party because he said it was too centristic in Delaware, challenged [the provision], saying it eliminated some people — such as him — from service on the courts and violated the First Amendment.” In his petition to the Supreme Court, Gov. John C. Carney attributed Delaware’s independent judiciary to the state’s political balancing requirement.

The Supreme Court is expected to hear oral argument in the spring, with a decision by the summer.

State Supreme Courts

First Native American Justice Appointed to Washington State Supreme Court

Gov. Jay Inslee recently announced his appointment of Judge Raquel Montoya-Lewis to the Washington State Supreme Court, making her the first Native American person who will ascend to the state’s highest bench.

While Washington State’s high court was not entirely comprised of white justices prior to Montoya-Lewis’ appointment, the state still has a long way to go when it comes to diversity on the bench. According to a recent report by the Brennan Center, the state has only had three justices of color, including one woman of color, since at least 1960, even though 31 percent of the state’s population are people of color.

Montoya-Lewis’ appointment follows the appointment of Judge Dustin P. Rowe, a member of the Chickasaw Tribe, to Oklahoma’s Supreme Court in November. Prior to these appointments, Justice Anne McKeig of the Minnesota Supreme Court was the only sitting Native American state high court justice in the country. There is only one active Native American judge on the federal bench, Judge Diane Joyce Humetewa.

Wisconsin Supreme Court Justice Accused of Coordinating with State’s Republican Party

Justice Dan Kelly of the Wisconsin Supreme Court has been renting office space from the state’s Republican party, as well as working with them to circulate his nomination papers, as part of his reelection campaign, according to the Wisconsin State Journal.

There is no state law regarding the distribution and collection of nomination papers. The state GOP has also “been involved in past Supreme Court campaigns, including helping conservative candidates gather signatures required to get on the ballot,” according to the Wisconsin Law Journal. “Democrats and liberal groups have also long supported candidates in the races, which are nonpartisan in name only.”

Other state supreme court justices in Wisconsin have faced similar accusations of working with outside groups. Former Justice David Prosser’s coordination with outside groups during his election campaign was revealed after an investigation found that then-Gov. Scott Walker had worked with the same groups in his 2011/2012 recall election campaign. According to The Guardian, those groups spent over $3.5 million in support of Prosser, who later refused to recuse himself from a case involving the alleged illegal coordination by Walker’s campaign.