“You see the most spending in states where the majority on the court is up for grabs or where courts have recently issued high-profile controversial decisions,” says Douglas Keith of the Brennan Center for Justice.
The Republican State Leadership Committee (RSLC) is spending millions across the country, tapping donations from corporations and dark money groups. And the National Democratic Redistricting Committee (NDRC), founded by former U.S. Attorney General Eric Holder, could also spend millions to back Democratic candidates. Both groups are focusing in particular on states where the courts have addressed partisan gerrymandering.
The RSLC said earlier this year that it would spend more money than ever before on the upcoming court elections and will focus on states where high courts have blocked election district maps drawn by the GOP. Courts in Ohio and North Carolina, for example, struck down gerrymandered election districts earlier this year, after bitter legal battles. In both states, the court-mandated districts are temporary; they will be redrawn again in the next few years and will likely be challenged in court.
Abortion rights, in the wake of the U.S. Supreme Court’s decision overturning Roe v. Wade, have emerged as another issue likely to draw heavy spending in state supreme court races. In Illinois, for example, as of late September Democratic candidate Mary O’Brien had spent more than $600,000 on ads focused on protecting abortion rights, according to the Brennan Center’s ad spending tracker.
Meanwhile, ostensibly nonpartisan elections in Kentucky, Montana and other states that could reshape their high courts’ ideological bent also have the potential for heavy spending. In Montana, for example, the RSLC and local business groups are running ads supporting Public Service Commission Chair James Brown, a conservative who’s challenging Justice Ingrid Gustafson. Brown reported well over $200,000 in his campaign war chest, with money from wealthy corporate executives and others backing his campaign and the RSLC running ads supporting him. While Gustafson hasn’t spent a lot of money on ads yet, her campaign is sitting on around $300,000.
Big Spending in North Carolina
North Carolina Democrats have had a majority on the state Supreme Court since 2017, but Republicans could win a high-court majority next month.
It’s not that Democrats are hurting for money: Court of Appeals Judge Lucy Inman and Justice Sam Ervin IV, the grandson of a U.S. senator who gained national prominence during the Watergate hearings, have each raised more than $1 million from law firms and other donors. The American Civil Liberties Union of North Carolina recently announced that it would spend more than $1 million to help Democratic high-court candidates.
Their Republican opponents, Court of Appeals Judge Richard Dietz and University of North Carolina professor Trey Allen, have raised only about half as much as Inman and Ervin, according to their most recent campaign finance filings. But the Republican candidates could be backed by more outside spending: A group funded by Justice Phil Berger Jr., whose father leads the state Senate and is often a defendant in voting rights cases, spent big in the GOP primary last spring. A GOP donor formed a new group called Stop Liberal Judges. And former U.S. Rep. Mark Walker launched a group to help elect Republicans to appellate courts.
A Republican victory in either of the two Supreme Court races would give the GOP a majority. The election may be very close, and both parties will spend heavily. The NDRC, which has backed recent lawsuits challenging election districts, has done so in past high-court elections in North Carolina and other states.
Power Plays in Ohio and Michigan
North Carolina switched to partisan judicial elections a few years ago, the first state in nearly a century to make that transition. Ohio’s Legislature followed suit last year and will hold its first partisan high-court race next month.
Republicans have long held a majority on the Ohio Supreme Court, but Democrats have the chance to take over this year. Two Republican justices, Pat Fischer and Pat DeWine, the son of the current governor, are facing well-funded Democratic challengers, and a recent poll suggests a very tight race, with most voters still undecided. The court’s leadership is also at stake: Democratic Justice Jennifer Brunner, a former Ohio secretary of state, is running against Republican Justice Sharon Kennedy for chief justice.
In Michigan, where in 2020 Democrats took control of the Supreme Court for the first time in a decade, the GOP stands a chance of winning back power this year if the party takes both seats that are up for grabs. Two incumbent justices, Democrat Richard Bernstein and Republican Brian Zahra, are on the ballot, along with Democratic state Rep. Kyra Bolden, Republican lawyer Paul Hudson and a Libertarian candidate.
Although Michigan judicial candidates are chosen at state party conventions, they run without party labels in November, giving incumbents a substantial advantage. And political parties spend heavily to back their candidates. Michigan’s major party candidates have each raised around half a million dollars from lawyers, corporate executives and other donors.
An Expensive Free-for-All in Illinois
Republicans could also win a majority on the Illinois Supreme Court this year, and both sides are spending millions. “Illinois is no stranger to high-cost judicial races,” said Keith. “The state is also in some ways the poster child for the conflicts this money can create.”
In 2020, voters unseated Democratic Justice Thomas Kilbride after a billionaire-funded group spent heavily on ads attacking him. After Kilbride lost, Democratic legislators redrew the district to correct glaring disparities in population. The new version of Kilbride’s district excludes rural counties along the Illinois-Iowa border. Republicans argued that Democrats had gerrymandered the district and also criticized a bill to limit judicial campaign contributions and study the idea of public financing for those elections, suggesting that those moves also were intended to help Democrats win.
Voters will now decide who will fill Kilbride’s seat. Republican incumbent Michael Burke, who was appointed to the seat, will face appellate court Judge Mary O’Brien, the Democratic challenger spending so heavily on abortion rights ads. Burke has raised hundreds of thousands of dollars from lawyers, lobbyists, corporations and others. O’Brien’s biggest donors include unions and trial lawyers.
Appellate court Judge Elizabeth Rochford is approaching $1 million raised for her campaign in heavily Democratic Cook County, which includes Chicago. Rochford’s biggest donors include labor unions and law firms. Her Republican opponent, former Lake County Sheriff Mark Curran, hasn’t raised much money, according to FollowTheMoney.org’s contributions tracker.
Justice Mary Jane Theis, who’ll soon assume the chief justice position, is on the ballot in a retention election. She hasn’t raised money but also isn’t facing the kind of opposition that Kilbride faced in 2020. For Democrats to keep their majority, they must win two of the three races.
Most of the attention is on the race for the seat once held by Kilbride, and abortion rights are at the center of the race. In addition to O’Brien’s ads focused on protecting abortion rights, a group backing the Democrats, All for Justice, has raised millions of dollars to run similar ads. Republicans have criticized those ads as misleading, noting that they portray Burke as opposed to abortion rights. Though Burke hasn’t commented on how he would rule in abortion cases, he has attended events hosted by anti-abortion groups and suggested that the U.S. Supreme Court decision overturning Roe v. Wade was in line with his judicial philosophy.
Abortion could also be a big issue in judicial elections in Kansas, where six of the seven high-court justices are on the ballot and voters recently overwhelmingly rejected a constitutional amendment that would have curtailed abortion rights. The Kansas Supreme Court has ruled to protect abortion rights, and it has found itself in the crosshairs of anti-abortion groups that have targeted justices in retention elections but failed to persuade voters to kick them off the bench.
Catching Up on Spending
The campaign-cash arms race in judicial races is escalating in a big way this year, after the 2019-2020 cycle saw a record $97 million in spending. For years, conservatives and Republicans outspent Democrats and progressives in crucial judicial races. In recent years, the Republican State Leadership Committee has received millions in funding from the dark-money group Judicial Crisis Network, and the Brennan Center has reported that JCN has likelybankrolled the RSLC’s efforts to elect conservative judges. Meanwhile, a dark money group tied to JCN received a 10-figure donation earlier this year from an unknown billionaire.
Democrats and progressives are beginning to catch up with Republicans’ spending. In 2018, the National Democratic Redistricting Committee gave hundreds of thousands of dollars to the North Carolina Democratic Party, which then spent heavily to back a high-court candidate. The progressive judicial advocacy group Alliance for Justice's Action Campaign backed a candidate in Wisconsin’s pandemic-plagued high-court election in 2020.
Conservatives have responded this year, ratcheting up spending yet again. Last spring, a new group called Fair Courts America (FCA) poured money into a race to help a conservative win a Wisconsin appellate court seat. In Kentucky, FCA recently formed a political action committee to spend more than $1.5 million to support a candidate who calls himself “the conservative Republican” in the nonpartisan high-court election. FCA has been funded mostly by Restoration PAC, which is tied to billionaire Richard Uihlein; its goal is to spend $22 million on high court races, a record-shattering sum.
No one expects the flood of money into state judicial races to abate soon, given the growing awareness of state courts’ crucial role in issues from abortion rights to access to the ballot box. Judicial elections in most states were once quiet, drawing little interest from the voters or special interest groups, but those days are firmly in the past. Without changes to the system to minimize the influence of campaign cash, this system is here to stay.
This has been updated so as not to suggest that the Republican State Leadership Conference received funding this year from the Judicial Crisis Network.
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