Once 'sleepy affairs,' state supreme court races have new significance with redistricting, abortion
State supreme court elections, long an afterthought compared with splashier races at the top of the ticket, are facing a brighter political spotlight as their role in shaping American life comes into sharper focus.
Voters in 32 states will cast ballots this year for about a quarter of the nation's elected state supreme court seats, according to Ballotpedia.
“State supreme courts are something of the hidden giant of American politics," said David Niven, a political science professor at the University of Cincinnati. "They have absolutely enormous effects on policy outcomes and yet they’re given almost no thought by the average voter."
Candidates for those seats traditionally have struggled to distinguish themselves for voters, taking care to avoid campaigning that might later introduce a conflict of interest on a case before the court. Turnout often suffers from "runoff," where voters make selections in other races but skip the lesser-known judicial elections, Niven said.
In 2022, though, state courts are getting more attention as they deliver key decisions on issues ranging from redistricting to abortion access. Competitive races are expected in several states where the 2022 election could tip partisan control of the courts.
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These courts have played key roles already this year in deciding how Americans will vote as a flurry of legislatures adopted new election restrictions. During the once-a-decade process of drawing new congressional and statehouse district boundaries, state courts have been a key battlefield as legislators have tried to set maps that give an advantage to their party.
Redistricting fights already had raised interest in state supreme court elections, but some experts expect that to intensify after the U.S. Supreme Court's recent decision to return questions of abortion access to states.
"There was once a time when the supreme court races were characterized as sleepy affairs," said Michael Kang, a Northwestern University professor who studies these state-level elections.
2022 state supreme court elections
In 2022, 87 of the 344 seats on state supreme courts are up for election in 32 states, according to Ballotpedia.
Partisan control of the courts is up for grabs in Ohio and North Carolina, where the the judicial system has factored heavily into redistricting and where new state laws have added party affiliation to the ballot after candidate names.
Only eight states include party affiliation on the ballot for state supreme court candidates. Thirteen states have nonpartisan elections for state high courts. The remainder of the states use different systems, including "retention elections," where appointed judges later face voters to hold their seats and appointments.
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Redistricting already has injected a new level of intrigue in Ohio's race. Republicans in Ohio's Statehouse have threatened to impeach Chief Justice Maureen O'Connor, a member of their own party who cannot run again because of age restrictions, after she sided with Democrats in striking down GOP gerrymanders of legislative maps.
Two sitting justices are running to replace O'Connor, and two of the court's incumbent Republicans are running for re-election on a court with a 4-3 GOP advantage.
In North Carolina, the Democrats control the state supreme court 4-3, but two of their seats are up for election in 2022. The court's ruling against a Republican gerrymander of legislative maps is now being challenged at the U.S. Supreme Court in a case with broad implications for the ability of state courts to review laws for federal elections.
A Democratic gerrymander in Illinois also could get a second look if the supreme court's 4-3 Democratic majority flips in the 2022 election. Illinois elects its supreme court justices in districts, and justices finishing a 10-year term can run for retention. Two Democrat incumbents and two Republican justices are on the 2022 ballot.
But it is the U.S. Supreme Court's overturning of Roe v. Wade and the anticipated wave of changes in abortion access in several states that has some experts expecting more attention on state supreme court seats.
“What’s happening now is the U.S. Supreme Court is very loudly withdrawing from the business of protecting individual rights, and they are in doing so kicking a lot of high-profile legal questions that folks had become used to being decided to the U.S. Supreme Court, they’re kicking those questions back to state supreme courts," said Douglas Keith, counsel in the democracy program at the left-leaning Brennan Center for Justice.
Rick Su, a law professor at the University of North Carolina, said state supreme courts traditionally were closely watched only by chambers of commerce and other business interests.
The U.S. Supreme Court's decisions to return more power to states on hot-button issues could change that, he said.
"The question is whether it's going to start motivating the public," he said.
Big money flowing to state supreme court races
Millions of dollars already are flowing into 2022 state supreme court elections after record-setting spending in the previous cycle.
In the 2019-20 cycle, the Brennan Center for Justice tracked nearly $98 million in campaign spending on state supreme court races in 21 states. More than a third of that came from outside special interest groups rather than the candidates themselves.
Keith said three factors often contribute to heavy spending on those races: whether the balance of power is up for grabs on the court; high-profile decisions issued in recent years; and lightning-rod justices who are on the ballot.
With several states meeting those criteria in 2022, Keith said it's possible that spending on state supreme court races could set a new record for a midterm election. Conservative interests traditionally have spent more on those races, he said, while the left is just catching up.
The Republican State Leadership Committee in February announced that it would top its previous spending record of $4.3 million on state supreme court elections in 2022, with a focus on states with critical redistricting implications. Those include North Carolina, Ohio, Michigan and Illinois, spokesman Andrew Romeo said in an email.
While the conservative group has been focused on state supreme court elections for years, it said this year it was trying to counter spending by the National Democratic Redistricting Committee backed by former Attorney General Eric Holder.
Holder's group is targeting races in 17 states this year, including races in Michigan, North Carolina and Ohio with an investment of "at least seven figures," said Garrett Arwa, interim executive director of the NDRC, in a statement.
Northwestern's Kang said the return on investment is greater for outside spending on state supreme court races compared with legislative races because winning just a few seats can tilt the court.
And the more money that flows into those races, Kang said, the more questions crop up about its influence on the decisions of the courts.
"As lawyers, we tend to think that judges ought to decide things by the law and be above politics. But the amount of money being spent, the kind of politics in these judicial races, raise concerns that the law doesn't decide these cases, it's really money in politics that does," he said.