Justices on the Ballot: Choosing State Supreme Courts

Part 2 of When Scotus Fails, Are State Supreme Courts An Answer?

August 3, 2024

The One Hundred Days War

In less than 100 days, we will choose a new President and Congress.  Democracy is clearly on the ballot in these federal elections.  What we sometimes forget, however, are state elections.  Eleven state governors will be elected as well as 5,809 of the nation’s 7,383 state legislators in 85 of the 99 state legislative chambers.  These results will determine much about how your schools are funded and your rights are protected.   But there are other key elections occurring this fall—for the state judiciaries.  And those choices have implications for everything from redistricting to voting rights to reproductive freedom. 

Over 80 seats for state supreme courts in thirty-three states are on the ballot this year. In at least five states (Michigan, Ohio, Montana, North Carolina and Kentucky), selections could shift the court’s ideological balance, which could have major impacts on everything from reproductive freedom to voting rights.  In Arizona and Florida, judges who voted to uphold abortion bans are on the ballot—two in each state. Fourteen justices who voted to uphold abortion bans are facing retention elections this year. A list of some of the critical races are found here.

The consulting group, Multistate, produced the following graphic to summarize states with supreme court elections in 2024.

The Selection Process 

Unlike our federal judiciary, many states require supreme court judges to face the voters at some point in their career; thirty-eight states use some form of election to select judges to their high courts.

In some states, initial vacancies are filled solely by popular election.  In others, judges are first appointed but then face voters to secure an additional term in what are called “retention elections.”   Only six states choose judges exclusively through gubernatorial appointment; fourteen make governors’ nominations subject to legislative confirmation.   And in two–Virginia and South Carolina–the legislature makes all selections.  If one is looking to state courts to protect rights or advance progressive priorities, knowing the process of judicial selection is key.  The graphic below from Democracy Docket is a good summary of the selection process:

STATE SUPREME COURT SELECTION PROCESS BY STATE

Judicial elections have not always been as central to the selection process as they are today. At our founding, all states selected judges by legislative or gubernatorial appointment.  That began to change in the early 1800s. Mississippi was the first state to institute the popular election of judges in 1832.  New York followed in 1846 and by 1861, 24 of the 34 states included elections for some portions of their judiciary. At first, these elections were partisan affairs, but that also changed during the progressive era, when the public sought to restore “traditional respect for the bench” by removing partisan influence. Presently, most elections remain nonpartisan, even as the contestants can now publicly comment on issues during their campaigns.

Elections Have Consequences

While state supreme courts ostensibly follow legal precedents, their composition can change very quickly–and so can their rulings.  Since state judges do not have lifetime tenure, changes in governors with appointment powers or direct elections by the people can dramatically change the character of these courts and their judicial philosophy.   Take Iowa for example.  Its highest court made history in 2009 when the body unanimously ruled that same-sex couples had the right to marry in the state, making it the third state behind Massachusetts and California to do so.  But voters then took their revenge, voting out three of the judges who rendered the decision in retention elections in 2010.    It happened again in 2018, when the Iowa high court ruled its constitution included a right to abortion, finding that “nothing could be more fundamental to the notion of liberty.” After an election, a newly constituted court reversed the previous position, concluding that Iowa’s constitution does not guarantee a right to abortion after all.  

A similar reversal occurred in North Carolina after its elections in 2022. Previously, its Supreme Court not only struck down a hyper partisan redistricting plan and voided a voter-I.D. law as racially discriminatory, but held that the state’s school funding approaches violated the constitution.  After Republicans picked up two seats in the 2022 elections(N.C. has partisan elections), the court reversed itself on redistricting and the voter-ID act, and will rehear the school funding challenge. 

In Michigan, Wisconsin and Pennsylvania, the political winds blew the other way, and voters elected judges that made those supreme courts more liberal.  Those elections proved consequential.  In July 2022, the Michigan Court held that the state’s anti-discrimination law also applies to LGBTQ people. And when Republicans attempted to block a ballot initiative to protect abortion in the constitution, the high court intervened and decided that the initiative should be left to popular vote. That decision allowed Michiganders to enshrine reproductive rights in their constitution in November 2022.   Similarly, Wisconsin’s highest court scuttled the previous court’s approach to state legislative redistricting and threw out a map as unconstitutional.  And it recently ruled that state law allows jurisdictions to establish mail ballot drop boxes, reversing a 2022 decision holding that drop boxes could not be used unless expressly permitted by legislation.  With its 2023 election, the Pennsylvania high court now has a 5-2 progressive majority. Elections have consequences, and we are seeing more of them in supreme court contests. 

Control the Law by Controlling the Courts

GOP leaders woke up the day after Barack Obama’s historic victory in 2008 worried that they might never win another national election.  Not only had Obama expanded the Democrats traditional base of African Americans and organized labor to include significant numbers of young people, college educated liberals, newly emerging progressive entrepreneurs, and suburban women, but the electorate’s demographics were changing dramatically in ways that Republicans did not view as favorable. Democrats would begin Obama’s term with a  255-178 majority in the House and a filibuster-proof 60-40 margin in the Senate.  No wonder pundits were calling 2008 a realignment election. 

The Republican strategy to regain power focused on gaining control of the states. Priority one was state legislatures.  The GOP rightly believed that if it could win legislative majorities in key states, it could control the next redistricting process, and draw new Congressional lines to provide them a partisan advantage.  If the party could not win the White House, its new Republican numbers would be key to blocking the policies of a Democratic president.    These efforts were wildly successful.  Using popular angst about health care reform and taxes, Republicans helped to create and nurture the Tea Party insurgency.  The party invested substantial funds in state legislative races.  

The November, 2010 midterms showed the effectiveness of the strategy.  Many are aware how many seats Democrats lost in the Congress, but few realize that the GOP decimated Democrats in state legislative races and took control of 20 legislative chambers. This allowed the party to cement their majorities and control congressional races by enacting hyper partisan redistricting plans immediately thereafter. We are still living with those decisions.

Success in state legislative races was important to Republicans, but it was not their exclusive focus.  Next in line for the GOP was state judiciaries.  For years, their focus had been on the federal bench, and two terms of George W. Bush produced more conservative appointments than ever before.   When Obama arrived, he tried to reverse the trend, but Republican ascendancy in the Senate made that challenging, and Mitch McConnell employed all the procedural tricks at his disposal to deny the two-term president key picks to the U.S. Supreme Court and several Courts of Appeals.  In Trump’s four years, not only did his three picks to the U.S. Supreme Court secure a conservative supermajority, but his 54 federal appellate selections (one short of the number Obama secured in the entirety of his eight years), changed the ideological composition of three of the country’s 13 federal appeals courts, the panels that often are the last word on constitutional law. 

During this period, the GOP also focused intently on state judiciaries.  In states where judges were appointed, they used the governors to create more conservative courts.  And the GOP recognized more quickly than their Democratic counterparts that in states that chose judges by popular elections, the costs of winning those seats were lower than in congressional races, and the relative lack of citizen attention to these contests made it easier to affect the result.  They were effective; according to the Center for Public Integrity,  the percentage of Republican state high judges rose from 30% in 1980 to over 50% in 2013.  But Democrats have now recognized the stakes.  Recent spending in the Wisconsin and Pennsylvania races eclipsed all previous records, and Democrats prevailed in both.

Manipulating the Process

Even with elections, legislatures and governors can still game the process.  Conservatives bristle when they hear discussions of “packing the court” by adding Supreme Court justices or changing lifetime tenure.  But changing the rules has been a feature of conservatives who do not like decisions rendered in their states.  In 2016, for example,  Arizona and Georgia simply added additional judges to their supreme courts.

In Iowa, Idaho, Montana and Utah, the GOP-controlled legislature, concerned about their supreme courts exercising independence that conflicts with legislative priorities, altered the appointment process to give the governor greater power while reducing the input typically provided by the state bar. In Utah, the change was prompted by the court’s blocking laws that banned nearly all abortions and prevented transgender girls from playing high school sports.

Red legislatures have influenced the process by changing elections from nonpartisan to partisan contests.  North Carolina made this change in 2016.  Ohio followed in 2021 after  Democrat Jennifer Brunner posted a 500,000 vote victory in a state supreme court race when candidates ran with no party label printed on the ballot.  Concerned about the evaporation of their majority on the court, Ohio Republicans passed a law in 2021 to require party labels be linked to the candidate.  In the next election, Brunner lost by one-half million votes.  A move to partisan elections merely accelerates the politicization of the judiciary.

Finally, governors can also prove crafty manipulators of the process.  They sometimes “avoid” elections by simply “encouraging” sitting supreme court judges to step aside just prior to the end of their terms. When that occurs, the governors can often directly appoint. Recent research reveals that in two states with judicial elections – Georgia and Minnesota – state supreme court justices have stepped down before the end of their terms, thereby allowing the governor to appoint a successor and avoid an election for an open seat.  Some commentators suggest this is yet one more way that statewide political elites can control the selection process.

Selections Have Implications

Should we have direct popular elections for the judiciary at all?  On the one hand, they theoretically inject some measure of accountability into the process, and make the courts more responsive to majoritarian concerns.  But will unlimited spending permitted in these campaigns compromise the integrity of the judiciary?   And does accountability to the majority make it less likely that judges will be less sensitive to the concerns of the minority?  We already know that judges are overwhelmingly white men; do elections limit the number of members of minority groups offering themselves for consideration?  These are only some of the reasons why the Brennan Center argues that judges should be appointed rather than elected.  There presently appears to be little political appetite to change the process in any state. 

Citizens should pay more attention to the judicial selection process, no matter what it is.  Judges occupy critical positions in determining our rights and liberties, and in protecting against the excesses of government.  They may also be called upon to rule on issues that could impact whether your vote is counted and democracy is protected.

Elections are a key way that citizens can make their views known, whether their votes are cast directly for the judges who will serve or for governors and legislators who appoint them. We neglect them at out peril.

This series looks next at one outlier in the national process–Virginia–and how the constitutional amendment process can either serve or frustrate the public’s desire for change.

Resources on State Constitutions and Supreme Courts.

If you want to read more, there is an increasing number of resources to consult.  The State Democracy Research Initiative at the University of Wisconsin has a website called 50Constitutions.org., which includes the current text of all 50 constitutions. The Brennan Center recently sponsored a major conference on state constitutional law, publishes the State Court Report, and maintains a state case database. Their Voting Rights and the Redistricting Teams frequently report on these issues.  The National Center for State Courts provides background on different state courts. Democracy Docket publishes case analysis of voting rights and redistricting cases.   A number of commentators such as Quinn Yeargain and Kyle Barry publish analyses on substack and other platforms. John Dinan , Marcus Gadson, James L. Gibson and Mark J. Nelson, Miriam Seifter, and Judge Jeffrey Sutton have published prescient pieces on the role of state constitutions.