Election Day is Tuesday, which means that in addition to voting for president, congressmen, senators, local officials, and ballot initiatives from sea to shining sea, voters in most states will also be deciding on who sits on their state and local courts.
According to Ballotpedia, 34 states are currently holding elections for their respective state supreme courts and lower appellate courts across the country.
What’s more, 2016 promises to be a record-setting cycle for these races. According to the Brennan Center for Justice, a record $14 million of outside money has been spent on media buys for state supreme court seats this election. This already breaks the previous $13.5 million record for independent expenditure during the 2011-12 cycle.
Here is a quick breakdown of some of the most important races to watch.
Possibly the highest-profile state high court race is going to be in the Tar Heel State, where Republican incumbent Bob Edmunds faces off against Democrat challenger Mike Morgan, who currently serves on the N.C. superior court.
The seven-member court is currently split between four Republicans and three Democrats, meaning that the election could tip the balance in a state that has become a battleground for several crucial issues.
Though officially a nonpartisan election, Edmunds remarked to the Salisbury Post that the current contest is “the first time I’ve had a race that’s gotten on the front page of newspapers.” The 67-year-old jurist went on to implore voters to weigh a candidate’s “respect for the rule of law” with regard to their state’s highest court. Mike Morgan, meanwhile, has been endorsed by President Obama.
Current estimates of outside spending on the race — an eight-year term — top $2 million, reports Josh Bergeron and the Salisbury Post.
The Yellowhammer State has partisan elections, and Republican justices are currently in control of the Alabama bench. The three Republican incumbents are currently running unopposed, meaning there is no chance of an election-night shift for the bench. But the election is worth keeping an eye on for the extra-electoral buzz surrounding it.
Alabama’s nine-member supreme court has fallen into controversy in recent months due to the extrajudicial suspension of Chief Justice Roy Moore in September. As a result of an administrative order issued earlier this year, Alabama became the first state high court to challenge the federal Supreme Court since before the Civil War, when states like Wisconsin clashed with Justice Taney’s decision in Dred Scott v. Sanford.
Furthermore, a federal lawsuit filed in early September alleges that, under the Voting Rights Act, the state’s current election system somehow “unlawfully dilutes the voting strength of African Americans.”
Louisiana currently has one contested supreme court race (one incumbent on the seven-member court is running unopposed), in which Jimmy Genovese and Marilyn Castle (both Republicans) are vying for the open seat of the retiring Janet Knoll. Justices are elected to 10-year terms on the Louisiana Supreme Court.
Recent reports show that the appeals court judge Genovese has raised about twice as much as Castle — roughly $1 million — and has a very dim view of judicial activism, recently remarking, “If the law needs to be changed, it is not our job on the bench to change those laws. It is the function of the legislative branch to make it right.”
“It is necessary that those separation of powers be kept in place and be honored,” Genovese told the Louisiana Record.
Castle, a district court chief justice, is the reported favorite of corporate interests in the state, LINK especially those in the energy sector concerned about “legacy lawsuits” that might result from environmental damage.
Kansas’ supreme court election could be a big win for conservatives — especially when it comes to abortion issues and the death penalty. But according to polling, the race is up in the air right now.
Currently, five of the Sunflower State’s top jurists are up for retention in the state’s nonpartisan election (held every six years). Four of the five were appointed by either Democratic or establishment Republican governors. If the jurists are not retained, Governor Sam Brownback would be able to fill the majority of seats on the court after having four slates presented to him under Kansas’ truly bizarre selection process.
However, with the death penalty, abortion legislation, and school choice in the mix, Kansans are split on the issue.
According to polling conducted by KSN News through SurveyUSA:
Twenty percent said none should be retained, and that all five on the bench should be gone. Fifteen percent said only one should be retained, while 16 percent said that two to four justices should stay. Twenty six percent said that want all justices to stay. Twenty-two percent were undecided.
It’s also worth noting that a judge has never lost his seat through a retention election, so this could also throw the court into uncharted territory. Former Kansas governor and Health and Human Services Secretary Kathleen Sebelius has been on the road in recent weeks campaigning for the retention of all five jurists.
Republicans currently hold a 9-0 majority on the Lone Star State’s high court, but three of them are currently facing reelection challenges from Democrats. The challengers are undoubtedly hoping that Donald Trump’s effect on disenfranchised Republican voters planning on staying home on Election Day might aid their long-shot bids. State justices are elected to six-year terms.
According to a profile at the Texas Tribune, the Democratic challengers include Mike Westergren, who is trying to “out-Bernie Bernie Sanders” with his small-donor fundraising model; Dori Contreras Garza, who is running on the “diversity” platform of making the high court “more representative” of the state’s demographics; and Savannah Robinson, a first-time, 60-year-old candidate with no campaign website, and no fundraising apparatus.
Texas hasn’t elected a Democrat to its supreme court since Bill Clinton’s days in the Oval Office.
Chief Justice Mark Cady and Justices Brent Appel and Daryl Hecht are facing reelection for the first time since the state’s high court unanimously redefined marriage seven years ago, well ahead of last summer’s Obergefell decision. Just a year after the Hawkeye court’s decision, three of the other concurring in the decision failed their bid for retention following a massive grassroots response from social conservatives unhappy with the justices’ votes to legalize gay marriage.
“I think it will send a message across the country that the power resides with the people,” Bob Vander Plaats, a leading campaign activist in the election, said at the time. “It’s we the people, not we the courts.”
According to the AP, Cady, Appel, and Hecht have opted against campaigning for retention, citing their belief that the court should be above politics.
Ohio currently has 30 judgeships up for grabs on Tuesday in a nonpartisan election. Three of these are on the state supreme court. One of those seats is uncontested, with the other two being cases in which the current justices have reached the Buckeye State’s mandatory retirement age.
Ohio’s supreme court justices run for six-year terms. Currently featuring a 6-1 Republican bend, this means that the two contested elections could create a narrow 4-3 split on the swing state’s bench.
According to an Associated Press report:
Cincinnati appeals court judge Pat DeWine, a Republican, has booked almost $644,000 in TV ads, according to an analysis by the Brennan Center. DeWine’s opponent, Warren Democratic appeals court judge Cynthia Rice, released her first TV ad Monday, but no spending figure was immediately available.
Democrats say DeWine will face a monumental conflict of interest if elected because his father is Attorney General Mike DeWine. DeWine says he has been assured through legal opinions that he would have to step aside only if his father personally argued a case.
Meanwhile, in the other contested race, Republican Pat Fischer squares off against Democrat John O’Donnell.
According to a recent profile by Angela Hatcher and the Cincinnati Enquirer, Fischer worked as a janitor and referee to help pay for his undergraduate and law school degrees at Harvard University and serves on the Ohio Constitutional Modernization Commission. John O’Donnell, meanwhile, previously worked as a claims adjustor and graduated from Cleveland-Marshall Law School. He has presided over hundreds of criminal cases as a county court of common pleas judge.
Both Fischer and O’Donnell have voiced their law-over-party philosophy in this nonpartisan election.
The makeup of Washington state’s nine-justice supreme court — to which justices are elected to six-year terms — could be fundamentally altered over an anti-school choice decision from last year.
The race for incumbent Charlie Wiggins’ seat has drawn the attention of tech industry moguls like Microsoft co-founder Bill Gates and former Microsoft CEO Steve Ballmer, who are looking to oust Wiggins in favor of municipal court judge Dave Larson.
According to Geekwire, Gates and others’ contributions are going into a PAC called Citizens for Working Courts Enterprise Washington, with innovation in education being a top priority for the campaign:
The PAC throwing its weight behind Larson is likely due to his background with the landmark McCleary lawsuit, which called on the state to fully fund public schools. When he was president of the Federal Way School Board, Larson spearheaded an education-funding lawsuit. It was unsuccessful, but it laid the groundwork for the state Supreme Court McCleary ruling.
The Washington State Supreme Court declared public charter schools unconstitutional in 2015, three years after Gates and company dumped millions into a public charter school initiative.
Wealthy individuals on the pro-school choice side have also contributed large donations to unseat state chief justice Barbara Madsen, who wrote the McCleary decision last year, in favor of prosecutor Greg Zempel.
For the third contested seat, incumbent Justice Mary Yu is running to hold her position against David DeWolf, a professor at Gonzaga law school for the past 25 years.
So what makes these cases so important?
These are the judicial bodies that were originally meant to handle most issues of state law — before widespread federal overreach took that away. Nonetheless, state supreme courts still have a tremendous impact on how their respective states function, as elections have a tremendous effect on how judges rule in hot-button cases, a recent study shows.
The 2016 election’s focus on Justice Scalia’s empty Supreme Court seat has left many Americans feeling helpless about the judicial direction of the country. But lower judicial elections are where voters can have a direct impact on how policies that affect them most often are decided.
Just as far more emphasis should be placed on electing local officials that share the concerns and values of voters, the same can be said for lower court elections. Regardless of the outcome, America may still end up with a more liberal court at the national level after Tuesday, but that doesn’t have to be the case at the state level. (For more from the author of “These 8 Supreme Court Elections Could Have Huge Implications for Conservatives” please click HERE)