Inside 'the next big political frontier' of state supreme court races

But races to elect state supreme court judges, which will play a critical role in drawing political maps and shaping the balance of power in the US, are red-hot political battlefields.

"These races are going to be the next big political frontier out there," Adam Kincaid, the president of the National Republican Redistricting Trust, told Insider.

Hundreds of state judgeships, including 86 state supreme court seats in 32 states, are up for election in 2022. And the stakes for both parties couldn't be higher.

State-supreme-court justices are exercising more power than before in the redistricting cycle and will continue to weigh on political maps throughout the decade of redistricting litigation that lies ahead.

"Both parties understand that if you want to control the redistricting process, the state legislatures are not enough," said Andrew Romeo, the communications director for the Republican State Leadership Committee, which has spent over $20 million influencing state-supreme-court races over the past decade.

The conservative supermajority on the US Supreme Court has prompted progressive litigators to bring more consequential and politically contentious cases — on everything from redistricting and voting rights to abortion — to state courts, instead of federal ones.

Showdowns in Ohio and North Carolina could undo Democrats' districting wins

Democrats are poised to control more congressional seats than many analysts expected at the start of the redistricting cycle.

Their success is due to a combination of new, independent commissions and anti-gerrymandering amendments, aggressive partisan gerrymandering in solidly Democratic states, and a few critical supreme court seat wins in states where Republican-controlled legislatures tried to gerrymander.

But those successes may not last long. In a national political environment already unfavorable for Democrats because of President Joe Biden's low popularity, Republicans could flip control of key state supreme court seats — and wipe Democrats' redistricting gains literally off the map.

"These decisions will draw attention on not just the courts but on particular justices," Douglas Keith, a counsel at the Brennan Center who studies state courts, told Insider. "The current redistricting cycle may escalate what was already going to be a highly politicized cycle of judicial elections."

In Ohio and North Carolina especially, Republicans are out for blood after those states' supreme courts struck down heavily gerrymandered congressional maps for unfairly favoring Republicans, which resulted in more Democratic-friendly maps being used for 2022.

"What we've seen in North Carolina are judges who are acting like legislators with robes," Kincaid said, adding that the court had "reached to create law" in the absence of anti-gerrymandering constitutional amendments in states like Ohio.

Democrats narrowly control the North Carolina state supreme court 4-3 after winning critical state supreme court elections in 2016 and 2018. But this year, Justice Sam Ervin IV is running for reelection and Justice Robin Hudson is retiring, putting two Democratic-held seats up for grabs.

Republicans winning one or both of those seats would flip the partisan balance of the court — and give Republicans the ability to draw far more GOP-friendly maps.

"There's nothing in the Constitution that says they can't redraw the congressional districts whenever they feel like it," Billy Corriher, an author of a book about the North Carolina Supreme Court, said. "Right now, we have a very fair congressional map that was imposed by a court. The risk is that they're going to substitute the fair districts with more unfair districts," Corriher added, referring to prospective new justices.

Corriher said that years of high-profile legislative attacks and power grabs targeting the North Carolina courts had led to more "partisan, politicized elections than we've ever seen" for judges.

Three state supreme court seats are also up in Ohio. The Buckeye State, whose congressional and state legislative redistricting has been mired in chaos and dysfunction, is nearly guaranteed to see continued litigation over its district maps in the next decade.

Republican Chief Justice Maureen O'Connor, who is retiring after 2022, has sided with the court's three Democrats to strike down Republican-passed congressional and state legislative maps for violating anti-gerrymandering constitutional amendments passed by voters.

O'Connor's votes to nix the maps have drawn ire and even impeachment threats from Ohio Republicans — and guarantees a contentious race to replace her between Democratic Justice Jennifer Brunner and Republican Justice Sharon Kennedy.

2022 will supercharge the money pouring into state court races

Candidates, parties, and outside special interests have spent over $500 million to influence state supreme court elections since 2000, according to research from the Brennan Center, with outside interest groups driving much of the increase in spending.

Partisan organizations and donors have entered the fray as major players, alongside the trial attorneys and business interests that have spent money on judicial elections for decades.

The US Supreme Court opened the door to limitless corporate campaign spending in its 2010 ruling in Citizens United v. Federal Election Commission. In 2015, Pennsylvania set a record for the most expensive state supreme court races in a single state. Candidates and interest groups spent over $21 million on three open seats, with Democrats significantly outspending Republicans by more than two to one.

"Democrats went all in, Republicans didn't match it, and Democrats swept all three seats," Adam Bonin, a Philadelphia election attorney, told Insider.

Kincaid said the price of losing those races "has been incredibly high over the last few years" for Republicans — and hardened the GOP's resolve to not be financially outmatched again. Since then, conservative interests at the national and state levels have poured millions into shaping state supreme court elections to outpace Democrats and liberals in subsequent election cycles.

The 2019-20 cycle was the most expensive cycle yet for state supreme court elections, according to a Brennan Center report, with candidates and outside groups spending $98.1 million across all the races that year.

Third-party interest groups spent a record-high $35 million in the 2019-20 cycle. In all, liberal interests spent $14.9 million in the 2019-20 cycle compared with $18.9 million by conservative groups.

"There continues to be a significant imbalance, with conservatives spending significantly more money," Keith of the Brennan Center told Insider.

"Democrats need to invest heavily in state strategy here," Gaby Goldstein, a cofounder of Sister District, which works to elect Democrats to state legislatures, said of state court races.

She added that the spending imbalance and lack of an equivalent national operation focused on state supreme court races that rivals the Republican State Leadership Committee were "part of a larger deficit Democrats have in infrastructure."

The RSLC was one of the first major political entities to recognize the importance of state court races, starting in North Carolina in the 2012 cycle. The group and its Judicial Fairness Initiative, founded in 2014, spent over $6 million in the 2015-16 cycle, $4.3 million in three state supreme court races in 2018, and $5.2 million in five states in the 2019-20 cycle, with the organization pledging to spend more than ever in the 2022 cycle.

Eight interest groups spent over $1 million in the 2019-20 cycle, according to the Brennan Center, with the billionaire-backed Citizens for Judicial Fairness spending $5.9 million toward unseating a Democratic justice in Illinois and the Judicial Fairness PAC, heavily funded by the oil and gas industry, spending over $5 million on state supreme court races in Texas.

Other state-level electioneering groups, like A Better North Carolina, Progress Michigan, Justice for All in Michigan, and the Greater Wisconsin Committee, spent a combined $11.1 million supporting Democratic and liberal justices that cycle, the Brennan Center found.

Many of these organizations now get a significant amount of funding from "dark-money groups," which don't have to disclose their donors.

In Wisconsin, where conservative and liberal groups have been relatively well matched in recent competitive state supreme court races, "much of spending in that state is so opaque that it's really hard to know exactly where it's going," Keith said.

A landmark abortion decision could throw another stick of dynamite into state court races

The US Supreme Court could gut or eliminate the federal abortion protections in the landmark Roe v. Wade decision with a major ruling expected in June that would send the issue of abortion back to each individual state — and, specifically, to state supreme courts.

"We very well may be at an inflection point," Keith said, adding that abortion could soon become "a litmus test" for state judges and spur an influx of even more cash into state-supreme-court races.

The first big judicial litmus test over abortion could play out in November in Kansas.

Six out of seven justices on the state supreme court are up for retention elections, once low-drama affairs that have gathered increased attention and campaign spending in Kansas in 2016 and in Illinois in 2020.

Voters in August will decide whether to pass a constitutional amendment establishing no right to abortion in the Kansas constitution, which antiabortion groups sought to put on the ballot to reverse a 2019 state-supreme-court ruling affirming the right to abortion in the Kansas Bill of Rights.

Davis Hammet, an activist with Kansas voter engagement group Loud Light, told Insider the ultimately unsuccessful 2016 campaign by antiabortion groups to kick justices off the bench was "pretty unheard of" at the time. He expects a redux of that effort in 2022, he said.

Keith echoed that view, saying: "I would be surprised if a significant amount of money was not spent trying to unseat some of those justices."

Negative ads and dark money threaten to undermine the courts

Both parties are locked in a costly arms race to take control of increasingly powerful state judgeships, an active arena for both parties to enact their policy agendas — and settle political scores.

But high-profile and explicitly partisan state judicial campaigns threaten to undermine the independence of the judiciary as a check on other branches of government and erode public confidence in state supreme courts.

Advocates and experts have long raised concerns about the fundamental conflicts of interest that can arise from electing judges, a system that incentivizes trial lawyers and powerful corporations to put up hefty sums of campaign money to influence the judges who decide their fates in court.

In the past few cycles, the rise of unfettered spending from outside interest groups increasingly fueled by dark money has funded more negative and often misleading attack ads on judges and allowed powerful interests to sidestep campaign-contribution limits and judicial-ethics regulations, the Brennan Center has said.

Ultimately, lawyers "are going to do what is in the best interest of the client and follow the law," Bonin, the Philadelphia attorney, said, adding: "But we want our cases decided on the facts and the law and not on fear of negative ads."

This is part two of Insider's three-part series on state supreme courts. Read part one and part three here.