High Courts, High Stakes – Sabato’s Crystal Ball

Dear Readers: Crystal Ball Senior Columnist Louis Jacobson is analyzing several categories of state-level races for us this cycle. After taking a first look at attorney general, secretary of state, and state legislative races, he is analyzing state supreme courts this week. While there are judicial elections across the country, Lou is focusing on the ones with the highest stakes, including key states like Illinois, Michigan, North Carolina, and Ohio. — The Editors

KEY POINTS FROM THIS ARTICLE

— State supreme court contests often attract little public attention, but they can carry significant weight on policy, especially in an era when courts are having to weigh in on such divisive topics as abortion and election administration.

— About two-thirds of the states have some type of state supreme court election on the ballot this year, but as of now, 8 states stand out as the likeliest to have at least one genuinely competitive race this fall: North Carolina, Ohio, Illinois, Montana, Michigan, Kentucky, New Mexico, and Arkansas.

The top state supreme court races

Among the plethora of elections being held during this midterm cycle, state supreme court contests are among the least-followed by the public, and even by political experts. But they can carry significant weight on policy matters.

That’s always been true, but it’s especially so today, with state courts potentially having to weigh in on election administration and other hot-button issues. There are the seemingly neverending battles over redistricting, an issue that remains in play in several states.

Fighting the Democrats over redistricting “requires ramping up the resources we invest in state supreme court races every cycle, and especially in 2022,” said Andrew Romeo, communications director for the Republican State Leadership Committee.

Roughly $97 million was spent on state supreme court races in 2019 and 2020, according to the liberal Brennan Center for Justice at New York University’s law school. (We wrote about the most heavily contested of those races here 2 years ago.) It’s too early to say whether the 2021-2022 cycle will surpass this level of spending, but it’s possible.

All told, Ballotpedia’s indispensable index of state supreme court races shows contests in 32 states this year, a mixture of partisan-on-partisan races, elections between nonpartisan candidates, and “retention” elections, in which an incumbent justice faces an up-or-down vote from the electorate.

However, the majority of these states do not seem likely to have truly competitive contests in the fall. For now, we’ve identified 8 states that are set to host state supreme court elections that should be at least somewhat competitive this fall. They are, in roughly descending order of prominence: North Carolina, Ohio, Illinois, Montana, Kentucky, Michigan, New Mexico, and Arkansas.

The Supreme Court’s decision to overturn the abortion decision Roe vs. Wade will likely put several of these state supreme courts into the spotlight for possibly determining how far states can go in banning abortion. Michigan has a pre-Roe abortion ban that is poised to snap back into effect, but this is being challenged in the courts by abortion rights supporters, who are also pushing for a ballot issue this November to enshrine abortion rights in the state constitution. Meanwhile, several other states have unresolved legal questions about abortion’s medium- and long-term future, and judicial elections this year could shape how those legal battles play out.

“It’s time for American society — and the U.S. legal system — to turn more attention back to state courts,” Alicia Bannon, director of the judiciary program at the Brennan Center, wrote after Roe was overturned.

Here are thumbnails of these 8 key states’ contests.

North Carolina

Perhaps this year’s most closely watched state supreme court races will be in North Carolina. That’s for a combination of reasons, including the state’s historically close partisan divide and the fact that if things go well for the GOP, the party could seize control of the currently Democratic-controlled court. This would enable Republicans to redraw the current, court-imposed congressional map following this year’s elections, which is relatively balanced as opposed to being the GOP gerrymander that the state’s Republican-controlled state legislature wants. It could also give Republicans a chance to tighten the state’s abortion laws and be another way to weaken Democratic Gov. Roy Cooper’s policy initiatives.

Due to these high stakes, observers expect a high-dollar, rough-and-tumble battle to control the Tar Heel State’s highest court. (North Carolina also has an open-seat U.S. Senate race this year, featuring GOP Rep. Ted Budd and Democrat Cheri Beasley. Beasley is a former state supreme court justice who narrowly lost her judicial position in 2020.)

One supreme court seat being contested this year in North Carolina is the one currently held by Democrat Sam Ervin IV, whose grandfather was U.S. Sen. Sam J. Ervin Jr. (the head of the Senate Watergate Committee) and whose father was former U.S. Court of Appeals Judge Sam Ervin III.

Ervin, who is seeking a second 8-year term, will face Republican Trey Allen, who won 55% of the vote against 2 other candidates in the May primary. Allen is the general counsel for the state’s administrative office of the courts. He had significant GOP establishment support in the primary, including the backing of the court’s chief justice, Paul Newby; state Senate President Phil Berger; and Berger’s son, Phil Berger Jr., a supreme court associate justice.

North Carolina’s other judicial contest this year is an open-seat race to succeed Democratic Justice Robin Hudson, who is not seeking a third term in advance of reaching the mandatory retirement age in 2024. This race pits Democrat Lucy Inman against Republican Richard Dietz. Both candidates are members of the state’s court of appeals; Inman lost to Berger in a close state supreme court race last cycle.

Republican victories in 1 of these 2 races would shift the current 4-3 Democratic advantage to 4-3 Republican. If the GOP can win both seats — which is not hard to imagine given the difficult midterm election cycle that Democrats are facing — Republicans would take a 5-2 edge on the court.

That would represent a stark turnaround from the 6-1 edge the Democrats held less than 2 years ago. In the 2020 judicial elections, the GOP won all 3 supreme court contests, 2 of them flips of Democratic-held seats, including Newby’s razor-thin defeat of Beasley for the chief justice slot.

Ohio

In Ohio, another state with redistricting and abortion in the spotlight, 3 seats on the narrowly divided state supreme court are up this fall.

Ohio’s Republican-controlled state legislature changed state law in advance of this year’s elections, opting to include party labels on the ballot for supreme court races. Currently, Republicans control 4 seats on the court — those held by Chief Justice Maureen O’Connor and Justices Pat Fischer, Sharon L. Kennedy, and Pat DeWine — while Democrats control 3, held by Justices Jennifer L. Brunner, Melody Stewart, and Michael P. Donnelly.

The court’s divisions were on full display during the battle over redistricting this year, which represented the first time the court had to wade into the issue since voters approved an anti-gerrymandering ballot measure. The court repeatedly ruled against GOP-drawn maps, with O’Connor and the 3 Democrats collaborating in the majority. However, Republican elected officials essentially stiff-armed the court, allowing a GOP-leaning congressional map to be enacted for now.

O’Connor’s break with her party on redistricting made Republicans apoplectic. Now, with O’Connor retiring, Ohio voters have a chance to choose her successor.

The contest for chief justice pits two sitting justices: Kennedy, a Republican, and Brunner, a Democrat.

Also running this year is DeWine, a Republican who is seeking another term. He took some heat for not recusing himself from the redistricting case, which directly involved his father, GOP Gov. Mike DeWine. The younger DeWine’s opponent in November will be state appellate judge Marilyn Zayas.

The third race involves another incumbent — Fischer, a Republican — who is seeking reelection. Fischer is being challenged in the general election by state appellate Judge Terri Jamison.

Of the 3 seats up in the fall, experts expect the contest for chief justice to be the closest, partly because both candidates have decent statewide name recognition and partly because the race is expected to attract the most money and media attention of the supreme court contests.

A Democratic flip of either the DeWine or Fischer seats would secure the party a court majority, regardless of what happens in the chief justice race. If the only Democratic winner is Brunner in the chief justice race, the Democratic majority would be short-lived, because Gov. DeWine would choose Brunner’s successor. (This assumes DeWine wins his own reelection against Democrat Nan Whaley, which he is favored to do.)

In reality, winning 2 — or even 1 — GOP-held seats this year will be an uphill battle for Democrats. The party has foundered in most other recent statewide races in Ohio, a state that has become redder over the past few years. Meanwhile, the poor midterm environment for Democrats nationally will not help their cause. Democrats did flip 3 state supreme court seats in the last 2 elections (2018 and 2020), but the addition of party labels to the general election ballot could help blunt their momentum.

Another wild card: Two statewide measures are set to be on the ballot, and both of them could boost GOP turnout. One would allow judges to factor public safety into bail decisions, while the other would amend the state constitution so that only citizens can vote.

Illinois

For the first time in more than 50 years, Illinois has redrawn the district lines for its supreme court, producing 2 competitive races for 2022. And if Republicans get lucky, they could flip control of the court despite the state’s strong Democratic lean in recent elections.

First, some background. Illinois’s supreme court has 7 members, elected with partisan affiliations for 10-year terms, after which they can stand in a retention election in which 60% is required to win another 10-year term.

Under the old map, the Democrats have controlled the court by a 4-3 margin since 2004. The state constitution requires that 3 justices be elected on an at-large basis from Cook County, the heavily Democratic jurisdiction that includes Chicago and its innermost suburbs. Under the old map, the 1st District always elected Democrats. This does not change with the new map.

The state legislature is given the power by the state constitution to divide the state into 4 additional districts. The old 2nd District, anchored in the suburbs around Chicago, always elected Republicans. The old 3rd District, stretching across north central Illinois, elected a Democrat for the first time in 2000. The old 4th District, stretching across central Illinois, always elected Republicans. And the old 5th District, containing all of southern Illinois, elected Democrats until 2004. Since then, it has elected Republicans.

Under the new map, the 4th District will contain the upper half of the state outside of northeastern Illinois, while the 5th District will contain the lower half. Both districts are overwhelmingly Republican and should elect Republican justices for the foreseeable future.

This leaves the largely suburban counties of northeastern Illinois outside of Cook County divided into the new 2nd and 3rd Districts. Over the last 2 decades, this area of the state has shifted from Republican to competitive, or modestly Democratic.

Indeed, the court’s new 2 swing districts — the 2nd and the 3rd — both have competitive races on tap for this fall. Democrats will need to win at least 1 if they are to maintain their 4-3 edge on the court. (Democrats gave themselves a leg up in this effort by redrawing the districts in 2021: Under the old map, the Democrats’ only way to retain their majority would have been to win the open seat in the 3rd District.)

In the redrawn 2nd District, Democrats lopped off Republican-leaning counties in northwestern Illinois to focus the district on 3 of Chicago’s Democratic-trending collar counties of Chicago (Lake, Kane, and McHenry) plus neighboring DeKalb and Kendall counties. Joe Biden won this district by 14 points in 2020.

The redrawn 3rd, meanwhile, excised GOP-leaning counties in the northwestern part of the state, narrowing the district to the collar counties of DuPage and Will, along with 5 smaller counties nearby. Biden won this district by 8 points.

The upshot is that these 2 new districts are more favorable to the Democrats, but well short of certainty, especially in an adverse political environment. Gov. JB Pritzker (D-IL) also only barely won each of the 2 new districts in his 2018 victory, showing that they are not as blue down-ballot as the presidential results would indicate.

The redrawn districts have scrambled the judicial lineups. Currently, a Republican justice, Michael Burke, represents the 2nd District, having been appointed by fellow justices to succeed former Chicago Bears kicker Robert Thomas upon his retirement.

However, Burke is running instead in the redrawn 3rd District this fall, following the shift of his home county, DuPage. The previous version of the 3rd District played host to aggressive politicking in 2020, when Democratic Justice Thomas Kilbride — following an aggressive campaign by Republicans and their allies, hedge fund billionaire Ken Griffin and business supply mogul Richard Uihlein — fell a few points short of the 60% required to retain his spot on the court.

After Kilbride’s loss, the other 6 justices of the Illinois Supreme Court appointed fellow Democrat Robert Carter to fill his seat until the 2022 election. Illinois Democrats pursued the redistricting effort after it became clear that holding the seat Kilbride lost would be increasingly difficult.

Now, with Carter not running for election, the field is open for Burke to face off in the fall against Democratic appellate court Judge Mary O’Brien.

Meanwhile, voters picked nominees for the open seat in the new 2nd District on June 28: Lake County judge Elizabeth Rochford won the Democratic nomination while former Lake County Sheriff and 2020 Senate nominee Mark Curran is narrowly leading an as-yet-uncalled race for the Republican nomination.

In addition to being highly competitive, both races are expected to attract large amounts of spending by both sides.

Montana

Montana, another state where the future of abortion is up in the air, will have 2 supreme court contests this year.

One race involves incumbent justice Jim Rice, a Republican appointee who is considered a strong conservative. He is deemed to be a heavy favorite for reelection.

The other contest is expected to turn into a hard-fought race. While Montana justices are officially nonpartisan, this race is expected to have a clear partisan tinge. It will pit incumbent Justice Ingrid Gustafson, who was appointed by then-Democratic Gov. Steve Bullock, against James Brown, a Republican public service commissioner.

Republicans are heavily backing Brown and attacking Gustafson as too liberal. A victory by Brown would aid Republican policymaking efforts, because they now control the governorship (something they did not do between 2005 and 2021) as well as both chambers of the legislature. Republicans have complained that the court has too often stymied their efforts.

Michigan

Michigan, where a decades-old, pre-Roe vs. Wade abortion law could end legal abortion in this battleground state, has an unusual system for electing supreme court justices: They are nominated by party, but they are put on the general election ballot without a party affiliation listed.

Currently, the Democrats have a 4-3 majority on the court. Two seats will be contested this year, with incumbents running in both. Under another quirk of Michigan law, the candidates run against each other on a single ballot, with the top 2 candidates prevailing.

Under this system, Republican Brian Zahra and Democrat Richard Bernstein are expected to win new terms. These 2 candidates last won in the same fashion in 2014. Each party is running a candidate this year for the seat it doesn’t hold — Democratic state Rep. Kyra Harris Bolden and Republican Paul Hudson — but they are considered underdogs.

Unless a backlash to the overturning of Roe produces a Democratic wave up and down the ballot, court-watchers expect to see the status quo: a 4-3 Democratic edge after the election.

Kentucky

Four of Kentucky’s 7 supreme court seats are up this year. One, Christopher Nickell of the far-western Kentucky district, is unopposed. Another, from the Louisville-based district, has 2 candidates vying for an open seat: Circuit Judge Angela McCormick Bisig and family lawyer Jason Bowman. This contest has not become fully engaged.

The other 2 races have developed a bit more fully.

In a northern Kentucky district, Justice Michelle Keller faces a strong challenge from state Rep. Joe Fischer. While supreme court races in Kentucky are officially nonpartisan, Keller was originally appointed to the court by then-Gov. Steve Beshear, a Democrat. Fischer, meanwhile, has served as a Republican in the legislature and is considered a conservative, especially on abortion.

In the second-most western district, Chief Justice John Minton is retiring. The early money was on Kelly Thompson Jr., a longtime Court of Appeals judge whose father was president of Western Kentucky University. But Thompson isn’t the only candidate: Shawn Alcott, a Bowling Green lawyer, is also running.

New Mexico

New Mexico has 2 competitive Supreme Court elections this year for incumbent justices.

Democrat Briana Zamora is facing a challenge from Republican Kerry Morris. Morris is a former prosecutor, though he has not held elected or judicial office previously. Morris ran for the supreme court against a different Democratic candidate in 2020 but lost, 54%-46%.

Democrat Julie Vargas is being challenged by Republican Thomas Montoya. Montoya is a family attorney who also has not held elected or judicial office previously. Montoya ran for a position on the state court of appeals in 2020 but lost to the Democratic candidate by a narrow margin, 52%-48%.

Judicial elections in New Mexico tend to be decided on party affiliation, which has generally helped Democrats. Since 1980, only one Republican — former Chief Justice Judy Nakamura in 2016 — has won a New Mexico supreme court election.

However, the gubernatorial race is looking competitive in 2022, which gives Republicans hope for an updraft down-ballot.

Arkansas

Arkansas held 3 judicial races during its May primary. Two of the 3 races saw incumbents reelected with greater than 50% of the vote. The remaining justice now faces a runoff election in November.

Incumbent justice Robin Wynne fell just short of the required 50%, with circuit court judge Chris Carnahan finishing second. In a somewhat unusual move, the state GOP endorsed Carnahan in the runoff.

Wynne served in the state House as a Democrat in the mid-to-late 1980s, at a time when Democrats dominated the state. He has been an elected, nonpartisan, statewide judge for more than a decade. Carnahan, for his part, is a former executive director of the state GOP.

Other races

Alabama and Texas also have partisan supreme court elections this year, but observers say these races are not expected to produce many fireworks. A contest or 2 in Louisiana could develop later, but filing doesn’t close for another few weeks. So far, nothing has popped yet.

In Kansas, 6 supreme court justices (Daniel Biles, Marla Luckert, Evelyn Z. Wilson, Caleb Stegall, Keynen Wall, and Melissa Standridge) face retention elections this year. All but Luckert and Stegall were appointed by Democratic governors. Abortion will be a major issue in Kansas this year, with a measure on the ballot in the August primary that would effectively allow the state to ban abortion, which the state supreme court has blocked in the past. An organized effort to deny retention to the Democratic justices is possible but has not emerged yet, and Danielle Underwood, a spokesperson for Kansans for Life, told Politico that her group is focused for now on the ballot measure campaign. Still, Kansas is a state worth keeping an eye on.

Other states have either nonpartisan elections or retention elections on the ballot this year, but so far at least, we know of no truly competitive campaigns. If that changes, we’ll note it in our updates closer to Election Day.

Louis Jacobson is a Senior Columnist for Sabato’s Crystal Ball. He is also the senior correspondent at the fact-checking website PolitiFact and is senior author of the Almanac of American Politics 2022. He was senior author of the Almanac’s 2016, 2018, and 2020 editions and a contributing writer for the 2000 and 2004 editions.