KEY POINTS FROM THIS ARTICLE
— State supreme court elections are often overlooked, stuck at the end of long ballots and receiving little media coverage. But they can play decisive roles on policies.
— Below are rundowns of 10 states that have at least one contested supreme court election this year. The stakes are high in several of these states, as new district lines loom after the 2020 census is compiled.
— Among the biggest supreme court races are ones in Michigan and Ohio, where Democrats might be able to topple GOP majorities on the courts. Meanwhile, Republicans are eyeing one election in Illinois as a way to ease the Democratic grip on that state’s high court, while Democrats in Texas are hoping to leverage their gains in the state to break the Republicans’ unanimous hold on the state’s top courts.
The race for state supreme courts
Even compared to other down-ballot races, state supreme court elections leave many voters nonplussed. Judges are often restricted in what they can discuss in public given concerns about prejudging cases, and many judicial candidates are listed without a partisan affiliation, even if they are receiving formal backing from a party.
“Numerous studies have shown that voters are far more ignorant of candidates in judicial elections than they are for other statewide elections, and in fact often leave that section of the ballot blank when voting,” said Ric Simmons, an Ohio State University law professor who has launched a nonpartisan website, chooseyourjudges.org, to demystify the process of choosing the right judge in an election.
However, supreme courts can be highly influential in policy debates in the states, including on such urgent matters as coronavirus restrictions and election administration. In addition, courts in many states may play a role in the upcoming round of redistricting, sometimes even drawing the maps themselves.
“State supreme courts have tremendous power to both limit rights and be more protective of those rights than the U.S. Supreme Court,” said Douglas Keith, a counsel with the Brennan Center for Justice at New York University. “In just the last few years, some state supreme courts have ruled that their state constitution protects reproductive rights, outlaws partisan gerrymandering, and prohibits the death penalty. Their Covid-era decisions upholding or striking down emergency orders and efforts to make voting easier have made even clearer the impact these courts can have on our day-to-day lives.”
In recent years, money has poured into judicial races. Since 2000, spending in judicial races has exceeded $500 million, according to the Brennan Center. During the 2017-2018 election cycle, eight of the 10 biggest spenders were “dark money” groups that disclose little about their supporters, the center found.
Below are 10 states that are hosting at least one contested supreme court election this fall. They are listed in declining order of political importance, by our rough estimate. In both Michigan and Ohio, Democrats have a genuine shot at taking majority control of the supreme courts away from Republicans, while Republicans are looking to weaken the Democratic majority in Illinois. In Texas, Democrats hope to ride a blue wave in the state to break the unanimous GOP control of the state’s twin high courts.
Two seats are up in 2020:
— Incumbent Bridget Mary McCormack (nonpartisan but supported by Democrats) is running again.
— Open seat (Stephen Markman, nonpartisan but supported by Republicans, reached the mandatory retirement age of 70).
The ballot includes seven candidates, of which voters must choose two. (Even more confusingly, in Michigan, supreme court candidates are nominated by the political parties, but are listed as “nonpartisan” on the ballot.)
Of these seven, the two candidates supported by Democrats are McCormack and employment lawyer Elizabeth Welch. The two candidates with Republican backing are Court of Appeals Judge Brock Swartzle and former St. Clair County assistant prosecutor Mary Kelly. Also listed on the ballot are Susan L. Hubbard, a judge of the Michigan 3rd Circuit Court, as well as Libertarian candidates Kerry Lee Morgan and Katie Nepton.
Despite the Michigan supreme court’s veneer of nonpartisanship, it is currently controlled by a 4-3 Republican majority, with each side having to defend one seat this fall. If the Democrats can win both races — and if the state goes for Democratic presidential nominee Joe Biden by the margin recent polls have said, then that’s a distinct possibility — they will flip partisan control of the court.
This would be a noteworthy change. In late September, the court’s GOP majority joined together to rule that Democratic Gov. Gretchen Whitmer lacked the executive authority to issue orders on coronavirus safety measures. This led Whitmer to step up her backing for “Spice and Jam” — i.e., McCormack and Welch.
McCormack is seen as likely to win another term; she has forged cross-party appeal on the court and has been endorsed both by groups on the left as well as by the more conservative Michigan Chamber of Commerce. She will also be the only incumbent on the ballot this year; having that label on the ballot is considered a huge boost in a low-profile judicial race. (Fun fact: McCormack is the sister of Mary McCormack, who was a regular on the TV show The West Wing; in her 2012 campaign, the entire cast got together to create a four-minute video that is part voter-education, part campaign commercial.)
Of the Republicans, Kelly has a magic name — recent justices on the court have included Marilyn Kelly and Mary Beth Kelly. (Ohio’s supreme court is one of several elected courts nationally that has a similar history of names shaping election results; see below.) But a Democratic wave could help Welch secure that crucial second seat.
Two seats are up in 2020:
— Incumbent Judith French (a Republican, though like in Michigan, party affiliations are not listed on the ballot), who faces former Ohio Secretary of State Jennifer Brunner (a Democrat).
— Incumbent Sharon L. Kennedy (a Republican), who faces John P. O’Donnell, a judge on the Cuyahoga County Court of Common Pleas (a Democrat).
In Ohio, the Republicans currently have a 5-2 advantage, but they are defending two seats, and if they lose both, the court will become 4-3 Democratic. Both races appear to be competitive, especially the contest for the French seat. Brunner is well-known statewide from her term as secretary of state (2007-2011). She later became an appellate court judge.
The Kennedy seat should also be a credible pickup opportunity for the Democrats. In Ohio supreme court races, candidates with Irish, Scottish, and, sometimes, German last names have historically fared well. In the last decade alone, the winning justices have included a Kennedy, an O’Neill, an O’Donnell, an O’Connor, a Donnelly, and a Stewart. This time, with a Kennedy facing an O’Donnell, it’s hard to tell which candidate will have the advantage. Democrats have performed well in these races the past couple of cycles, despite struggles elsewhere: They won both races in 2018 even as the party’s other statewide candidates (besides incumbent Sen. Sherrod Brown) lost, and O’Donnell nearly won a seat in 2016 as Donald Trump was convincingly winning statewide.
One key retention election is on the ballot in 2020:
— Thomas Kilbride, the Democratic incumbent for the 3rd district.
Retention elections are usually not high-profile affairs, but this one could be. The Democrats have a 4-3 majority on the court, and the new state legislative and congressional maps could be subject to judicial review in 2021. If Kilbride fails to win retention — which requires 60% of voters answering that question or a simple majority of all those casting ballots — the court would appoint a replacement until the next general election, when a new judge would be selected through a partisan election. Such a replacement likely wouldn’t be a strong partisan, but the replacement would become a wild card for redistricting, and other cases, over the next two years. If the Republicans could win the eventual race in 2022, they could shift the ideological direction of the court to the right, even as the state has become solidly blue. (The court is filled through a district system, and Kilbride’s is an upper-downstate district that is redder than districts in Chicagoland.) The contest has been fed by substantial spending on both sides.
Two other seats are up this year in Illinois but are attracting less attention. One Democratic seat is uncontested, and a Republican-held open seat has partisan competition but is expected to be held by the GOP.
Four seats on the supreme court are up in 2020:
— Incumbent Chief Justice Nathan Hecht (Republican), who faces Democrat Amy Clark Meachum, a judge on the 201st District Court.
— Incumbent Jane Bland (Republican), who faces Democrat Kathy Cheng, a private attorney.
— Incumbent Jeffrey S. Boyd (Republican), who faces Democrat Staci Williams, a judge on the 101st District Court.
— Incumbent Brett Busby (Republican), who faces Democrat Gisela Triana, a judge on the Third District Court of Appeals.
In addition, three seats are up on the court of criminal appeals, which under Texas law handles criminal cases, compared to the supreme court, which handles civil litigation.
— Incumbent Bert Richardson (Republican), who faces Democrat Elizabeth Davis Frizell, formerly a judge on the Dallas County Criminal District Court.
— Incumbent Kevin Patrick Yeary (Republican), who faces Democrat Tina Yoo Clinton, a judge on the Dallas County Criminal District Court.
— Incumbent David Newell (Republican), who faces Democrat Brandon Birmingham, a judge on the 292nd District Court.
The Texas supreme court has made some controversial decisions recently on coronavirus protections and election administration. The outcome of these judicial races will depend heavily on how much Texas swings blue this year.
In Texas, the nine justices on the state supreme court are elected to six-year terms in statewide elections; all are currently Republicans. The GOP also controls all nine seats on the court of criminal appeals, which also elects justices on a statewide basis.
With Biden running almost neck-and-neck with President Donald Trump in Texas, Democrats have hopes of breaking into the currently all-Republican top courts in Texas. There’s some precedent on a lower judicial level: In 2018, Democratic U.S. Senate candidate Beto O’Rourke had strong coattails down the ballot, with Democrats capturing 30 of 42 judicial seats in play on the state’s courts of appeals that year. The Democrats running in 2020 are also notable for their ethnic, racial and gender diversity, which could provide some appeal to the Democratic base.
That said, Texas is a historically Republican state, and incumbency in judicial races is a key advantage. Observers say that of the Republicans, Bland is the justice most likely to win reelection, both because she’s the only incumbent on the ballot this year who’s a woman, and because the other three justices are also facing a Libertarian on the ballot; the Libertarian candidates could drain supporters on the Republican justices’ right flanks.
Three supreme court seats are up in 2020:
— Incumbent Chief Justice Cheri Beasley (Democrat) is up for reelection, facing fellow justice Paul Martin Newby (Republican).
— Incumbent Mark Davis (Democrat) is up for reelection, facing former state Sen. Tamara Barringer (Republican).
— An open seat (given up by Newby) pits two judges on the North Carolina Court of Appeals, Democrat Lucy Inman and Republican Phil Berger Jr.
Though North Carolina is politically divided, the state supreme court currently has a 6-1 Democratic tilt. With two Democratic incumbents up for reelection and one GOP seat open, whatever happens this fall will not be enough to tip the partisan control of the court to the Republicans. In fact, it’s possible the Democrats could end up cementing their hold on the court.
One contested election will be held in 2020:
— Open seat (incumbent Mark Gibbons is retiring). Ozzie Fumo, a former Democratic state Assembly member, faces Douglas Herndon, a judge on the 8th Judicial District Court.
Six judges on the seven-member court won nonpartisan elections; one was appointed by former Republican Gov. Brian Sandoval.
Two contested elections will be held in 2020:
— Incumbent Raquel Montoya-Lewis, who was appointed by Democratic Gov. Jay Inslee, is up this year, facing Dave Larson, a judge on the Federal Way Municipal Court
— Incumbent G. Helen Whitener, who was also appointed by Inslee, is up this year, facing Richard Serns, a former school administrator with no courtroom experience.
Four judges were elected in nonpartisan elections and the remaining five were appointed by Democratic governors.
Two contested elections will be held in 2020:
— Incumbent T. Kenneth Griffis faces Latrice Westbrooks.
— Incumbent Josiah Coleman faces Percy L. Lynchard Jr.
If she can win, Westbrooks would become first Black woman and the second Black member of the court. She is more liberal than her opponent, but the court is strongly conservative overall, so even if she flips the seat, it wouldn’t tilt the court’s overall balance by much. Westbrooks’ candidacy could be boosted by Black turnout for Mike Espy, who is running in the U.S. Senate race against Republican Cindy Hyde-Smith.
Two seats are up in 2020:
— Incumbent Shannon Bacon (Democrat) faces Ned S. Fuller (Republican), a former judge on the 2nd Judicial District Court.
— Incumbent David K. Thomson (Democrat) faces attorney Kerry Morris (Republican).
The Democrats have a 4-1 edge on the state supreme court. In theory, a loss of both seats that are up in 2020 would give Republicans the edge on the court. The GOP challengers are using an unusual humorous approach in their advertising, highlighting non-legal things the judicial candidates aren’t very good at. However, the state has been trending Democratic and no game-changing event has occurred this year, so the incumbents are in the driver’s seat.
One contested seat is up in 2020:
— Incumbent Paul Thissen, a former Democratic-Farmer-Labor majority leader in the state House, faces Michelle L. MacDonald, who has made several unsuccessful runs for judicial offices and has had her bar license suspended in the past. Thissen is considered the heavy favorite.
Five of the seven members of the court were appointed by Democratic governors, while two were appointed by former Republican Gov. Tim Pawlenty. Each later stood for election.
|Louis Jacobson is a Senior Columnist for Sabato’s Crystal Ball. He is also the senior correspondent at the fact-checking website PolitiFact and was senior author of the 2016, 2018, and 2020 editions of the Almanac of American Politics and a contributing writer for the 2000 and 2004 editions.