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With the U.S. Supreme Court kicking issues such as abortion, redistricting and other matters back to the states, voters are paying more attention and parties are spending millions on state Supreme Court elections in November.
In Ohio, the Republican justices’ 4-3 majority is on the line this year. The same is true for slim Democratic majorities on the North Carolina, Illinois and Michigan high courts.
"People are much more likely to ask or talk about Supreme Court races than in the past," Cleveland attorney Patrick Lewis, who focuses on both financial election law, including redistricting cases, told Fox News. "As a lawyer, I think it’s a good thing to see greater engagement from voters. It’s good for more people to know who is on the bench and who they are electing."
Supreme Court elections, both partisan and nonpartisan, are happening in 30 states, with a total of 85 of the nation’s 344 state high court seats up for grabs, according to Ballotpedia.
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The Illinois Supreme Court, inside the Old State Capitol Building, in Springfield. (Raymond Boyd/Michael Ochs Archives/Getty Images)
Of those states, eight – Arkansas, Illinois, Kentucky, Michigan, Montana, New Mexico, North Carolina and Ohio – have genuinely competitive races, according to the Center for Politics at the University of Virginia.
In Ohio, Republican Chief Justice Maureen O’Connor is retiring, and current Justices Sharon L. Kennedy, a Republican, and Democrat Jennifer L. Brunner are running to replace her.
Two other Ohio Supreme Court races have Justice Pat DeWine, son of Gov. Mike DeWine, fending off Democratic challenger Marilyn Zayas, a Democrat appellate judge, and Republican Justice Pat Fischer defending against Democrat appellate Judge Terri Jamison.
In North Carolina, Democrats have a 4-3 advantage on the state’s high court, which could change if Republicans win even one of the two high court races in November. That could frustrate Democratic Gov. Roy Cooper, noted Troy Shelton, an appellate lawyer and business litigation attorney in Raleigh, who watches the court.
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"North Carolina has a Republican legislature and Democratic governor," Shelton told Fox News Digital. "When there have been a separation of powers arguments, the Democratic Supreme Court has delivered victories for Gov. Cooper."
Democratic Justice Sam Ervin IV, the grandson of former U.S. Sen. Sam Ervin Jr., who ran the Senate Watergate hearings, is facing Republican Trey Allen, general counsel for the state’s administrative office of the courts. Also, Democratic Justice Robin Hudson is retiring and two appeals court judges, Democrat Lucy Inman and Republican Richard Dietz, are running to fill the vacancy.
Gov. Roy Cooper during a press briefing on May 14, 2020, in Raleigh, North Carolina. (Robert Willett/The News and Observer via AP)
Though stakes may be higher, judicial candidates still don’t engage in fiery debates over issues, Shelton said.
"Judicial races are usually fairly boring," Shelton said. "The candidates talk about the rule of law and never say how they would rule. If you ask about a past case, they often say it could affect a future case."
Still, he noted the 2020 race for chief justice drew intense national money and voter interest.
"When the U.S. Supreme Court takes abortion and returns it to the voters and their elected representatives, that also means that state Supreme Court could make a Roe v. Wade like decision," he said. "Whether Dobbs affects turnout is an open question. We have an open U.S. Senate seat, which could also raise turnout."
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In Illinois, Supreme Court seats are divided by districts, and the redrawn map has given the GOP hope of flipping the 4-3 Democratic majority on the high court in the heavily blue state, with two competitive races, according to the Center for Politics. Republican Justice Michael Burke is fending off Democratic appellate court Judge Mary O’Brien, while in a race for an open seat, former Lake County Sheriff Mark Curran, a Republican, faces Democratic Circuit Court Judge Elizabeth Rochford.
In Michigan, abortion is a key issue because of a pre-Roe statute. The Supreme Court elections are officially nonpartisan, but parties endorse candidates. The court has a 4-3 majority of Democrat-endorsed justices, and two seats being contested that could shift the balance. The Michigan high court candidates all run on the same ballot, with the two top finishers winning the election. Justices Brian Zahra, a Republican, and Richard Bernstein, a Democrat, are seeking to hold on to their seats, while Republican Paul Hudson, an appellate lawyer, and Democratic state Rep. Kyra Harris Bolden, are trying to get elected to the court.
House Speaker Nancy Pelosi and fellow Democrats rally on March 8, 2019, outside the U.S. Capitol in support of the For the People Act, which included a provision to limit partisan gerrymandering. (AP Photo/J. Scott Applewhite)
For national parties, redistricting – which occurs every 10 years after the Census – is the core issue. Over the last two years, Democrat Supreme Courts knocked down legislative maps drawn by majority Republican legislatures in North Carolina and Pennsylvania, while the New York high court scrapped a legislative map drawn up by the Democrat-controlled legislature.
Both parties accuse the other of abusing the courts to gerrymander.
"Republicans lost the vast majority of redistricting lawsuits in state court for one reason: they broke the law by gerrymandering," Garrett Arwa, the interim executive director of the National Democratic Redistricting Committee, told Fox News.
Former Obama administration Attorney General Eric Holder started the Democratic redistricting group.
"Make no mistake, democracy is on the ballot," Arwa added. "And we must protect our democracy by ensuring state Supreme Courts remain independent by supporting fair-minded judges who serve as neutral arbiters on the bench."
National Democrats gained a big head start on Republicans, spending $58 million from 2015 through 2020 to win state Supreme Court seats. But in 2022, the Republican State Leadership Committee’s Judicial Fairness Initiative plans to spend at least $5 million on competitive state Supreme Court races.
"The RSLC is pushing back against Eric Holder's sue-until-blue strategy of Democrats gerrymandering through the courts," Andrew Romeo, spokesman for the Republican State Leadership Committee, told Fox News. "Winning key state Supreme Court races in 2022 will be critical for future redistricting battles. This is all about redistricting."
In Montana, the court races are officially nonpartisan. Only one of the two races is deemed competitive, according to the Center for Politics. Justice Ingrid Gustafson, appointed to a vacant seat by former Democratic Gov. Steve Bullock, is facing Republican Public Service Commissioner James Brown.
Four of Kentucky’s seven Supreme Court seats are up in nonpartisan contests, where the seats are divided by districts. The most closely-watched race, according to the Center for Politics, is Justice Michelle Keller, originally appointed by former Democratic Gov. Steve Beshear, facing Republican state Rep. Joseph Fischer, a pro-life lawmaker prompting speculation the race will impact abortion. Also, in a race to fill the vacancy of retiring Chief Justice John Minton, appellate Judge Kelly Thompson Jr. is facing Bowling Green attorney Shawn Alcott.
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New Mexico has two competitive elections. One is Democrat Justice Briana Zamora against Republican challenger Kerry Morris, a former prosecutor. Also, Democrat Justice Julie Vargas faces Republican challenger Thomas Montoya, an attorney who has never held elected office. The GOP has only won one Supreme Court seat in the state since 1980.
In Arkansas, just one Supreme Court race is competitive going into November, according to the center. Justice Robin Wynne is facing circuit court Judge Chris Carnahan. This is a runoff from the May primary, in which the two other high court races saw candidates get more than 50% of the vote. The state GOP endorsed Carnahan.
While 38 states elect Supreme Court justices, another 12 states appoint them, all as the debate rages on whether the judiciary has become too politicized.
"From my perspective, I can’t see that one type of judicial selection method produces a more partisan judge than others," Lewis, the Ohio attorney said.
Voters generally prefer being able to pick their judges, said Shelton, the North Carolina attorney.
"Voters like it. Lawyers and judges sometimes feel different about it," Shelton said. "It may be the worst system except for all the others. No lawmaker wants to be suggesting voters have fewer choices."
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