Category Archives: judicial elections

Breaking: North Carolina Supreme Court Grants Rehearing in Case Striking Down Congressional Districts as a Partisan Gerrymander, Potentially Mooting U.S. Supreme Court’s Independent State Legislature Case, Moore v. Harper

On a 5-2 vote along party lines, the North Carolina Supreme Court has granted rehearing to reconsider its decision striking the state’s congressional districts as unconstitutional partisan gerrymanders under the state constitution. It is also considering the state districts as well as a separate voter id case; these were each decided just before the partisan majority on the Supreme Court changed. Justice Earl in her dissents calls out the court for granting the unusual rehearing and rejecting Common Cause’s motion to dismiss; the says that this is going to further politicize the judiciary and undermine the legitimacy of the courts.

The court put the congressional districting briefing on a very quick time frame, and it raises the question whether the U.S. Supreme Court’s decision in Moore v. Harper could become moot, after a lot of briefing and argument has already been considered by the Supreme Court on the independent state legislature theory.

As I recently wrote,

Back on November 9, I wrote:

Could the Flipping of the North Carolina Supreme Court to Republican Control Moot the Moore v. Harper Case about the Independent State Legislature Doctrine?

With news that the North Carolina Supreme Court has flipped to Republican control, there is a good chance that the this court’s holding that partisan gerrymandering violates the state constitution will be overturned. That ruling will allow Republicans to draw a partisan gerrymander of North Carolina’s congressional districts in time for the 2024 elections.

But it also may moot Moore v. Harper, the big “independent state legislature”/Elections Clause case. That case argues that the North Carolina’s ruling violated the power of the state’s general assembly to decide on the shape of congressional districts.

There have been a ton of amicus briefs filed (including my own) and oral arguments are set for December 7. Not clear to me how quickly a case could make it to the state Supreme Court to cause it to reconsider its partisan gerrymandering ruling, and if there might be an incentive to hold those suits to get a ruling from the U.S. Supreme Court on this issue.

Now, via Democracy Docket, comes this this petition for rehearing in the North Carolina Supreme Court in the remedial phase of the Harper case involving the maps. The case specifically asks for the original holding—-that the North Carolina congressional districts are an unconstitutional partisan gerrymander under the state constitution—be overturned.

If that case is overturned before the Supreme Court decides Moore, it seems to me that it likely moots the case.

Indeed, I wonder if SCOTUS will delay deciding this case if the NC Supreme Court grants rehearing.

I don’t know that the NC court would do so. As Marc Elias argues, doing so would be a radical act. But it could happen and then call into question whether we will find out the vitality of the independent state legislature theory or not in Moore.

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“Nonpartisan in name only. Wisconsin Supreme Court race has political overtones.”

Milwaukee Journal-Sentinel:

Milwaukee County Judge Janet Protasiewicz is focusing her campaign for the state Supreme Court on her belief that women should be able to choose whether to continue pregnancies and has characterized the state’s Republican-written legislative maps as “rigged” — partisan appeals to voters that are turning heads in a nonpartisan election.

Her outspoken campaign escalates a long-used strategy of Supreme Court candidates signaling to voters their partisan leanings, commenting on issues that could land before the court in the coming months.

Protasiewicz’s comments have drawn criticism from conservative opponent Dan Kelly, who has called Protasiewicz an activist who is “a danger to our liberties” and prompted the state GOP to file a complaint with the Wisconsin Judicial Commission alleging Protasiewicz has violated judicial ethics rules.

But Protasiewicz’s approach also is not unique. Dane County Judge Everett Mitchell, a liberal candidate, also has criticized the state’s legislative maps and signaled support for restoring abortion access. Kelly and fellow conservative candidate Jennifer Dorow, a Waukesha County Judge, have promoted endorsements from anti-abortion groups in their campaigns for a seat on the court that is all but certain to hear a lawsuit filed by Democratic Gov. Tony Evers and Attorney General Josh Kaul seeking to repeal the state’s abortion ban.

Robert Yablon, a professor and co-director of the State Democracy Research Initiative at the University of Wisconsin Law School, said Protasiewicz’s comments reflect a campaign practice utilized by Supreme Court candidates in past races and have so far not crossed a legal line.

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“2023’s Biggest, Most Unusual Race Centers on Abortion and Democracy”

NYT:

In 10 weeks, Wisconsin will hold an election that carries bigger policy stakes than any other contest in America in 2023.

The April race, for a seat on the state’s evenly divided Supreme Court, will determine the fate of abortion rights, gerrymandered legislative maps and the governor’s appointment powers — and perhaps even the state’s 2024 presidential election if the outcome is again contested.

The court’s importance stems from Wisconsin’s deadlocked state government. Since 2019, Gov. Tony Evers, a Democrat, has faced off against a Republican-controlled Legislature with near-supermajority control thanks to one of the country’s most aggressive partisan gerrymanders, itself approved last year by the Wisconsin justices.

Wisconsin’s Supreme Court has been left to arbitrate a host of thorny issues in the state, and has nearly always sided with Republicans. But now, with a conservative justice retiring, liberals hope to reverse many of those decisions by taking control of the open seat and its 10-year term….

While past state judicial candidates and United States Supreme Court nominees have largely avoided weighing in on specific issues — instead pitching opaque judicial philosophies and counting on voters or senators to read between the lines — some of the Wisconsin contenders are making all but explicit arguments for how they would rule on topics that are likely to come before the court.

Janet Protasiewicz, a liberal county judge from a Milwaukee suburb, is leading the charge on both fund-raising and the new approach to judicial campaigning, shedding the pretense that she does not hold firm positions on the hottest-button issues. She turned heads this month at a candidate forum when she declared the state’s gerrymandered legislative maps “rigged.”…

The conservative candidates, Justice Kelly and Judge Dorow, have been less forthright about how they would rule, but both have left ample clues for voters. Justice Kelly last year participated in an “election integrity” tour sponsored by the Republican Party of Wisconsin. Judge Dorow, who was so well known in the Milwaukee suburbs that people dressed as her last Halloween, said in a 2016 legal questionnaire that the worst U.S. Supreme Court decision was Lawrence v. Texas, the 2003 decision that struck down anti-sodomy laws.

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“Leonard Leo is quietly remaking state high courts in his conservative image”

Grid News:

For the past decade, Leonard Leo has led a multimillion-dollar effort to remake state Supreme Courts, leveraging hefty support from corporate backers like Philip Morris and Charles Koch and his late brother, David.

Leo, a longtime conservative power broker and the co-chairman of the Federalist Society, is well known for the key role he reportedly played in influencing then-President Donald Trump’s nomination of Justices Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the U.S. Supreme Court. More recently, he made news this year as the recipient of the largest single political contribution in U.S. history — a $1.6 billion windfall from reclusive billionaire Barre Seid.

Less well known, however, is Leo’s role in orchestrating a successful decadelong effort to aid at least a dozen conservative judges in winning or retaining their seats on state high courts.

A Grid investigation has found that a network of political nonprofits connected to Leo has funneled at least $31 million in campaign funds into at least 42 races for seats on state Supreme Courts or other high-level state judgeships in 15 states since 2010.

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“Chief justice in Ohio map flap: Court attacks harm democracy”

AP:

 Ohio Chief Justice Maureen O’Connor isn’t rattled on a personal level by the political attacks she endured from fellow Republicans during Ohio’s protracted redistricting fight. She’s confident she “did the right thing” in ruling their proposed political maps unconstitutional.

What does concern the retiring jurist is the ignorance and lack of respect for foundational government principles that she believes their actions demonstrated.

O’Connor drew GOP wrath for joining three Democrats on the seven-member Ohio Supreme Court to repeatedly invalidate the state’s new, Republican-drawn legislative and congressional maps. The maps remain in limbo as O’Connor exits the court Dec. 31 because of age limits.

“The people that voiced a need to remove me from office through impeachment really don’t have a grasp on our Constitution, or democracy, or checks and balances,” O’Connor, 71, told The Associated Press in a year-end interview last week. “And, unfortunately, they are in the Legislature.”

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Challenge to Delaware’s Efforts to Balance Partisan Composition of Judiciary to Proceed

AP: Delaware courts (including its Supreme Court, Court of Chancery and Superior Court) are subject to a constitutional provision that seeks to maintain a partisan balance on its courts by providing that “no more than a bare majority of judges on [certain] courts can be affiliated with a single political party.” The provision has been subject to unsuccessful challenges before, but on Friday a federal district court refused to grant a motion to dismiss in a new suit, which argues that by effectively barring independents from running for judgeships the Delaware Constitution violates the First Amendment.

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“Primaries spotlight coming battles over state supreme courts”

AP News

“[A]cross the country this year, . . .  state judicial races become increasingly politicized over issues such as partisan gerrymandering, abortion and gun rights. Voters in 32 states this year will cast ballots on state supreme court seats, which have become a magnet for spending by national interest groups.”

As the stakes of the independence of state constitutional interpretation rise, we are certain to see this kind of spending rise too.

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“Stung by redistricting rulings, Republicans target state court elections”

Reuters:

Republicans are vowing to spend record amounts in key state supreme court races this fall, seeking to take advantage of a favorable national political environment to elect conservative judges at the state level amid deep political divisions.

A string of decisions throwing out Republican-drawn congressional maps in Ohio, North Carolina and Pennsylvania has intensified the party’s determination to install justices who could give lawmakers fresh opportunities to muscle through more advantageous maps.Report ad

“The stakes in this election are going to be as high as the Senate race,” said Robert Paduchik, the Republican chair of Ohio, where an open U.S. Senate seat is up for grabs.

There are nearly 90 state supreme court seats on the ballot nationally this year, according to the elections website Ballotpedia, and control of the top courts in Ohio, North Carolina, Michigan and Illinois are all in play.

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“The Politics of Judicial Elections, 2019-20”

Brennan Center report:

In 2019–20, state supreme court elections attracted more money — including more spending by special interests — than any judicial election cycle in history, posing a serious threat to the appearance and reality of justice across the country.

Thirty-eight states use elections to choose the justices who sit on their highest courts, which typically have the final word in interpreting state law. Over the past two decades, the Brennan Center has tracked and documented more than $500 million in spending in these races.  Our analysis finds that the 2019–20 election cycle was the most expensive ever (adjusted for inflation). In fact, no other cycle comes close to the nearly $100 million that big donors and interest groups spent to influence the composition of state supreme courts in 2019–20.

This unparalleled spending speaks to the power and influence of state supreme courts, which often fly below the public’s radar. While voters were at the polls on Election Day in 2020, for example, the Missouri Supreme Court announced that it would not hear Johnson & Johnson’s appeal of a $2 billion verdict against it in a products liability suit. Massive stakes like these, for both business interests and trial lawyers, are what fueled some of the first high-cost judicial races two decades ago.

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“Republican Kevin Brobson wins seat on Pennsylvania Supreme Court as GOP appears poised to sweep appellate races”

Spotlight PA:

Republican Kevin Brobson edged out Democrat Maria McLaughlin to win a spot on Pennsylvania’s highest court, ending a contentious race marked by negative ads and big campaign spending.

Unofficial election results early Wednesday showed Brobson, currently a Commonwealth Court judge, with 53% of the vote. The Associated Press called the race at 1:30 a.m. in his favor.

With Brobson’s projected victory, Republicans will keep one of their two seats on the seven-member court with another election looming. Chief Justice Max Baer, a Democrat, will turn 75 at the end of 2022 and face mandatory retirement.

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ELB Book Corner: Gibson and Nelson: “State Supreme Courts and the Dominant Partisan Regime”

I am pleased to welcome to ELB Book Corner James L. Gibson and Michael J. Nelson, authors of the new book, Judging Inequality: State Supreme Courts and the Inequality Crisis. (Readers using this link and the code JUDGING get a 20 percent discount.) Here is their final of three posts:

ELB Book Corner

Schoolchildren in America are often taught that courts are “different” from the legislative and executive branches of government. Because they have high levels of judicial independence, courts are able to stand up against the tyrannical inclinations of the popularly-elected branches of government to protect the rights of society’s underdogs.

 In Judging Inequality, written with support from the Russell Sage Foundation and the National Science Foundation, we challenge this view of courts. Judicial independence, we argue, does not necessarily lead to a greater respect for the rights of underdogs. Rather, it does nothing more than provides judges with the opportunity to enact their policy preferences into law without fear of losing one’s job. Indeed, these substantial grants of judicial independence, in practice, might simply make it easier for judges to do “the right thing,” as the judges see it.

 For this reason, courts present a potentially dangerous threat to the governing coalition that controls the legislative and executive branches of government. A court with preferences that are not aligned with elites’ policy goals could present a substantial hurdle to the enactment of the dominant political coalition’s policy goals. Thus, courts with conflicting policy preferences may present an existential threat to the ability of traditionally elected branches of government to make the policies their constituents sent them to the capitol to enact. In the eyes of these elites, it is important to do what they can to ensure that the state’s judiciary does not go astray.

 At first glance, it might seem that state legislators and governors have only minimal power to affect the composition of state high courts. After all, state supreme courts in the United States are notoriously nearly unique worldwide in the use of popular elections to fill their high benches and retain their judges. However, our data reveal that nearly a majority of “elected” state supreme court justices are initially appointed to their offices. This fact stands in addition to the large numbers of judges who are formally appointed to their positions. That a vast majority of state supreme court justices are placed on the bench by elites, rather than the mass public, goes some distance toward explaining how state supreme courts may have a considerable degree of congruence and compatibility with the other branches of state government.

 Indeed, Figure 1 reports the percentages of state supreme court justices who initially joined the state supreme court via an interim appointment. Note that this figure examines the selection method in use at the time the justice was appointed even if that system was no longer in use during the 1990-2015 period. Note that Louisiana prohibits interim appointment judges from later standing for election to a full seat on its high court. The most striking percentage belongs to Minnesota, which uses nonpartisan elections to select its replacement justices. Notably, of the 26 justices serving on the Minnesota Supreme Court from 1990 to 2015, all but one joined the court via an interim appointment. Note as well that Minnesota explicitly designates the incumbent (if there is one) on the ballot presented to the voters in that state.

This strong level of control over initial selection is potent. While state supreme court justices regularly face the electorate, the incumbency advantage is strong in judicial elections. Moreover, judges who face reappointment (rather than reelection) are nearly always reappointed. As a result, many state supreme court justices serve for long periods of time. This fact amplifies the importance of initial selection, which, again, is typically the prerogative of dominant political elites.

As a result—and just as Dahl taught us about the U.S. Supreme Court nearly a half-century ago—state supreme courts are generally part of the dominant governing coalition in a state at a given time. To paraphrase Dahl:

The fact is, then, that the policy views dominant on the [state supreme courts] are never for long out of line with the policy views dominant among the lawmaking majorities [in their states]. Consequently it would be most unrealistic to suppose that the [state high courts] would, for more than a few years at most, stand against any major alternatives sought by a lawmaking majority.

Figure 1: The percentage of state high court judges who were initially appointed to their position in states that formally use elections to select justices.

This research was conducted with the support of the National Science Foundation (SES-1456568 and SES-1456580) and the Russell Sage Foundation (G-1962). Any opinions, findings, and conclusions or recommendations expressed here are the authors’ alone and do not necessarily reflect the views of the National Science Foundation or of the Russell Sage Foundation.

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