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The Politics of Judicial Elections, 2017–18

Key Point: Special interest groups maintained their outsized role in state supreme court elections, in some cases outspending the candidates themselves.

Published: December 11, 2019

Produced with research from the National Insti­tute on Money and Polit­ics.

Over the past two decades, the Bren­nan Center for Justice and the National Insti­tute on Money in Polit­ics have docu­mented more than a half-billion dollars in spend­ing in state supreme court elec­tions in the Polit­ics of Judi­cial Elec­tions series. In that time, we’ve covered the trans­form­a­tion of these elec­tions from sleepy low-dollar contests into costly races awash in dark money, threat­en­ing the hope of equal justice in Amer­ica’s courtrooms. 

Our new analysis looks at the 2017–18 state supreme court elec­tion cycle. While elec­tions during this period broke few of the spend­ing and other records set in recent years, many of the worst features of modern judi­cial elec­tions appear here to stay. Opaque interest groups running decept­ive ads poured money into judi­cial races in multiple states, outspend­ing the candid­ates them­selves in some instances. In one state, a polit­ical party and its allies retali­ated against a sitting judge for ruling against her party’s wishes. At the same time, state supreme courts across the coun­try remained strik­ingly homo­gen­eous compared to the diverse popu­la­tions they serve. 

All this raises alarms for 2020, which is poised to be a big year up and down the ballot, includ­ing for judi­cial races. Histor­ic­ally, state supreme court elec­tions, which 38 states use as part of their system for choos­ing high court judges, have seen vastly more spend­ing in pres­id­en­tial cycles, and big-money races are already under­way (or all but guar­an­teed) in a hand­ful of battle­ground states. For example, elec­tions in Ohio, Michigan, and Wiscon­sin could shape their supreme courts’ ideo­lo­gical balance for years to come. And races in Iowa and North Caro­lina will give the states’ conser­vat­ives, who have recently passed laws to help their allies reach the bench, new oppor­tun­it­ies to shape the courts via the ballot box. Wiscon­sin’s 2019 elec­tion already attrac­ted more than $8 million in spend­ing.

Key Find­ings from the 2017–18 Judi­cial Elec­tion Cycle

  • Special interest groups main­tained their outsize role in supreme court elec­tions. Spend­ing by interest groups, rather than by the candid­ates or polit­ical parties, accoun­ted for 27 percent of all supreme court elec­tion spend­ing. By compar­ison, over the last 20 years, congres­sional elec­tions have never seen interest groups account for more than 19 percent of all spend­ing in a cycle. The share of outside spend­ing in this cycle’s supreme court races was down from a high of 40 percent in 2015–16, but it contin­ued to far outstrip any cycle prior to the U.S. Supreme Court’s 2010 Citizens United decision, which set the stage for the rapid growth of interest group spend­ing.

  • In some states, interest groups vastly outspent the candid­ates they suppor­ted. In Arkan­sas and West Virginia, groups accoun­ted for at least two-thirds of every dollar spent. This is consist­ent with other recent cycles, where a hand­ful of states saw interest groups take over their supreme court races in a similar way.

  • Interest group spend­ing was almost entirely nontrans­par­ent. Eight of the 10 biggest spend­ers did not disclose the true sources of their funds in a way that would allow voters to know who was trying to influ­ence the elec­tion and future court decisions. This is in line with our 2015–16 analysis, which found that 82 percent of all outside spend­ing that cycle was nontrans­par­ent.

  • The biggest source of dark money was likely the Judi­cial Crisis Network, which also led the fight to seat Brett Kavanaugh on the U.S. Supreme Court. The conser­vat­ive group, foun­ded in 2005 to boost federal judi­cial nomin­a­tions of Repub­lican pres­id­ents, boas­ted of spend­ing $10 million in 2018 to seat Justice Kavanaugh. An analysis of IRS filings, state disclos­ures, and TV spend­ing estim­ates suggests that more quietly that same year, the group likely put at least $3.8 million toward state court elec­tions.

  • States made meager progress toward achiev­ing more diverse supreme court benches. A recent Bren­nan Center study found that state supreme courts fall far short of reflect­ing the communit­ies they serve – for example, people of color make up nearly 40 percent of the U.S. popu­la­tion but only 15 percent of state supreme court justices nation­wide. Voters elec­ted four new justices of color to the bench in 2018, but no state with an all-white bench added a justice of color. As a result, 25 states began 2019 with an all-white supreme court.

It is hard to over­state the import­ance of state supreme court elec­tions. State supreme courts sit atop judi­cial systems that hear 95 percent of all cases filed in the United States. State high courts decide more than 10,000 cases on the merits annu­ally, compared to the 72 opin­ions the U.S. Supreme Court issued in its 2018 term. In just the past two years, state high courts struck down the death penalty, author­ized busi­nesses to discrim­in­ate against same-sex couples, preserved repro­duct­ive rights, capped damages in medical malprac­tice suits, and limited partisan gerry­man­der­ing. These courts, and the elec­tions that determ­ine who sits on them, have a profound impact on the lives and freedoms of many.

Yet the politi­ciz­a­tion of supreme court elec­tions contin­ues to under­cut the abil­ity of these power­ful bodies to be fair and inde­pend­ent. In many states, judges routinely hear cases involving major campaign support­ers, and the growth of opaque interest groups has made these conflicts of interest poten­tially larger and less likely to come to light. A body of research suggests these conflicts and other elec­tion-year pres­sures impact judi­cial decision-making, lead­ing to better outcomes for big donors and polit­ical support­ers and worse outcomes for crim­inal defend­ants. Recent research by the Bren­nan Center also suggests the finan­cial demands of modern supreme court elec­tions may be one reason why elec­tions have rarely been a path to the bench for candid­ates of color. 

To foster the fair­ness and inde­pend­ence of the courts that our demo­cracy requires, states must insu­late them from these pres­sures, limit conflicts of interest, and build benches that better reflect the public they serve. There are clear steps states can take, from strength­en­ing the ethics rules that bind judges to more funda­mental changes to how states pick judges. These solu­tions are discussed in greater detail below and in recent Bren­nan Center reports. 

Whatever path states take in pursuit of judi­cial fair­ness and inde­pend­ence, it is becom­ing clear that, without reform, modern judi­cial elec­tions risk putting these values forever out of reach.