Arjun Singh on September 3, 2023
Three swing states will hold elections to their supreme courts over the next 18 months, potentially altering court compositions amid key cultural and political flashpoints such as abortion, guns and redistricting.
Between 2023 and 2024, Pennsylvania, Ohio and Michigan will hold elections for several seats on their supreme courts, which have the final word on matters of state law regarding abortion and gerrymandering, among others. These seats are likely to be highly contested as partisan groups seek to bring litigation to change the law on these issues, political strategists and academics told the DCNF.
“After President Trump’s nominations, the U.S. Supreme Court has a firm conservative majority. Future [progressive] policy victories in federal court are likely to cease, and some may even be rolled back. This is going to shift litigation over divisive social issues to the states,” said Dr. Robert Leider, a professor of law at George Mason University’s Antonin Scalia Law School to the DCNF. He added that “[s]tate supreme courts are going to deliver important rulings on abortion, guns, and redistricting.”
In Ohio, three seats on the state supreme court — which has a 4-3 Republican majority — will be subject to elections in 2024, including that of Republican Justice Joe Deters. Should Democrats flip Deters’ seat, it would result in a Democratic majority, which experts believe will affect litigation on ballot initiatives in the state.
“Democrats and their supporters are trying to get a ballot initiative to establish a non-partisan re-districting commission,” said Shawn Donahue, a professor of politics at the University of Buffalo, to the DCNF. “Changing the court’s composition will give them partisan predictability,” he claimed, implying that a court dominated by Democrats is likely to rule in their favor.
Republicans are attempting the same strategy, Donahue noted, regarding a ballot proposition in November on whether to amend the state constitution to enshrine abortion rights into law. After a preceding ballot initiative on Aug. 8 failed to raise the threshold for such initiatives’ passage from 50% to 60%, the GOP-controlled Ohio Ballot Board changed the language of November’s initiative to change the word “fetus” to “unborn child.”
“There’s controversy over the wording of the question that’s going to be on the ballot. The Secretary of State wants to alter the wording so that there’s less of a chance that it would pass,” he said. A lawsuit regarding the ballot initiative’s language was filed at the court on Tuesday.
Partisan elections to Ohio’s top court are a new phenomenon, having begun in 2021 and making Ohio one of just a few states to have such elections.
“I think the Republicans felt that it would be to their advantage to put the party labels next to their nominees’ names,” said Donahue, suggesting that elections were likely to yield more conservative justices.
Elsewhere, in Michigan, the terms of two justices — Republican David Viviano and Democrat Kyra Harris Bolden — are expiring in 2024. Michigan’s supreme court currently has a 4-3 Democratic majority as of 2021, which has since ruled in favor of left-wing interests, such as approving an abortion rights ballot initiative in 2022 even as the Michigan Board of Canvassers was deadlocked on the question.
Among the new issues that could come before Michigan’s court is the state’s congressional map, which was redistricted in 2022 and led to the loss of a Republican-leaning seat, according to FiveThirtyEight news. Federal courts do not hear non-racial cases of partisan gerrymandering, which makes Michigan’s court the final venue for the outcome.
“Democrats don’t like to lose—and if they have to turn the Michigan State Supreme Court into [a] miniature partisan legislative body making law from the bench, they’ll do so,” said Peter Roff, a Republican campaign strategist and contributing author for Newsweek.
“[R]edistricting will be a significant issue,” said Leider. Even as Michigan’s congressional maps are drawn by an independent commission, the state’s supreme court has exclusive jurisdiction to review their decisions.
In Pennsylvania, which will hold the earliest of such elections in November 2023. Democratic Superior Court Judge Dan McAffrey is running against Republican county judge Carolyn Carluccio for a vacant seat on the court, which is currently split 4-2 in favor of Democrats.
The race so far has been defined by abortion, with McAffrey, the pro-abortion candidate, regularly emphasizing his endorsements from women elected officials — launching a “Women for McAffrey” drive as part of his campaign — and other pro-abortion left-wing groups, including Planned Parenthood, whose endorsement he has highlighted on his website. “We need someone who will be a champion for all the rights we care about,” said Pennsylvania House Speaker Joanna McClinton, a Democrat, in a video endorsing his candidacy — a code for his pro-abortion inclinations.
The court’s current Democratic majority has already entertained left-wing legal challenges. “The court has granted review on a petition seeking to invalidate the state’s preemption of local gun control ordinances … [u]ntil recently, [the petition’s] legal theory would have been viewed as implausible, if not downright meritless,” said Leider.
“But with a 4-2 Democratic majority now on the court, this litigation stands a strong likelihood of success.”
In 2020, the court attracted criticism from conservatives for ordering exceptions to Pennsylvania election law due to the coronavirus pandemic, which extended the deadline for the return of absentee ballots in the state. The divided opinion prompted outrage from former President Donald Trump, who alleged that it would allow “rampant and unchecked cheating … [and] violence in the streets.”
Each of the states leans slightly Republican, according to the Cook Partisan Voting Index, though — as Issue 1 in Ohio and the Democratic sweeps in Pennsylvania and Michigan demonstrate — the likelihood of GOP candidates winning is uncertain. “In Pennsylvania, you have to remember that it’s an off-year election. Those are often more difficult to examine,” said Donahue.
The filing deadlines for Michigan and Ohio’s elections are not until December, and the incumbents have not yet announced whether they will seek re-election. However, experts reiterate the importance of these elections is critical, with Leider noting that “state legislatures will not be able to overturn these [court’s] decisions with simple legislation.”
“These elections are likely to usher in a new era of hyperpartisan judging at the state level,” he added.
