Jurisprudence

The Once-Sleepy Races That Are Getting Super Expensive—and Political

Election yard signs in North Carolina, including one for Justice Sam Ervin.
In North Carolina, Republicans are now guaranteed a majority on the state Supreme Court until at least 2028. Above, election yard signs, including one for Justice Sam Ervin, in Charlotte. Sean Rayford/Getty Images

While I was paying attention to this month’s midterm elections to try to puzzle out who would gain control of the U.S. House and Senate, Erik Ortiz, from over at NBC News, was focusing on something else: judges. “The judiciary gets the shaft in a lot of ways,” Ortiz said. “These races aren’t normally at the forefront of voters’ minds.”

Ortiz was paying attention to judges because these once-sleepy races have really woken up. All across the country, Ortiz reported on insurgent campaigns to unseat judges who were perceived as too liberal. Like in Kentucky, where Republican state legislator and Supreme Court candidate Joe Fischer took aim at the registered Independent who was set to become one of the state’s most senior Supreme Court justices. Fischer so badly wanted voters to know about his right-wing point of view that he filed a lawsuit over it.

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“He was not ashamed to talk about his conservative ideology. That’s something that does not happen really ever, even in a place like Kentucky, where it’s a deeply conservative state,” Ortiz said. “Judges aren’t supposed to be talking about which party they support or who they’re getting campaign funding from.”

National money poured into Kentucky. And it funded ads that sounded like this. Keep in mind that while some states have partisan elections—where judges run as Republicans or Democrats—Kentucky … does not. Fischer essentially ran as a Republican anyway. He even used an elephant in his campaign ads.

In the end, Joe Fischer lost his race, which means his campaign didn’t work. So why should we be paying attention to campaigns like this in the first place? Ortiz says it’s all about the money and influence that’s coming into those campaigns. “Back in the 2020 election cycle, about $97 million was spent on state Supreme Court elections. Groups that track spending say it’s going to be a lot more this time,” Ortiz said. “This is only the first of many. It’s opening up the spigot of outside money and outside influence into these nonpartisan races.”

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On Thursday’s episode of What Next, I spoke with Ortiz about why state Supreme Court races are getting more political than ever. Our conversation has been edited and condensed for clarity.

Mary Harris: The partisan fight to control state Supreme Courts didn’t start and end in Kentucky. And it wasn’t just about conservative candidates, either.

Erik Ortiz: It was Democrats, as well, pushing their favored candidates. It turned way more political than anyone anticipated.

I asked Ortiz to take me through a few of these races, one by one. He started with what happened in Montana. That’s a state where an incumbent justice named Ingrid Gustafson faced a challenge from a candidate named James Brown. 

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Like in Kentucky, races here are supposed to be nonpartisan. That didn’t stop James Brown from raising a bunch of money from the Republican State Leadership Committee. In the end, this race was the most expensive state Supreme Court race in Montana’s history.

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Outside groups raised $3 million on that race. That might sound like a drop in the bucket in other huge campaigns, but for Montana and for a judicial race, that’s big money. It was a big deal because the Republicans control all the levers of government in Montana. And they’ve long seen the state Supreme Court as the last frontier that they want to control. And the state doesn’t even have partisan elections, but conservatives have accused the court of skewing liberal.

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And taking on an incumbent judge is a big deal, right?

Incumbents generally sail to victory pretty easily, so if you’re going to go up against them, you better have money, and you better have backing.

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What happened with Gustafson?

Her campaign was built on being the anti–James Brown.

James Brown was her opponent.

Right. She went the opposite of him. He was very outspoken about being conservative, and he was not ashamed to use his backing from the governor, Greg Gianforte. Gustafson didn’t go there, and she used her time on the Supreme Court, saying she upholds the integrity and rules based on the law and how it’s written—your standard answer.

And in the end, Brown ended up losing by 40,000 votes to Gustafson. But when he conceded, he blamed the money coming from the outside for why he fell short, saying he was outspent by special interest groups and the millions of dollars in liberal money flooding into the state in the final weeks.

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Is that true?

Yes. There was a lot of outside money on both ends from different PACs because they saw how important this race was.

There were other states, though, where Republican justices—and Republican fundraisers—can claim real wins. Take Ohio. Here, the state Supreme Court already had a Republican majority, but newly elected justices could flip the balance of power. And that could have real implications in the court’s upcoming cases involving redistricting and the state’s 6-week abortion ban.

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Ohio’s Supreme Court has been under Republican control since 1986. And this year was interesting because it was the first year that party affiliation was actually listed on the ballot for Supreme Court races. And Republicans swept all three seats. That includes Pat DeWine. He’s an incumbent judge on the Supreme Court, but he’s also the son of Republican Gov. Mike DeWine. And the current chief justice is a Republican, but she’s retiring, and she was a swing vote on some major issues. And that included striking down a pro-GOP congressional map. She was very vocal about how Republicans abused their legislative power to draw up these congressional maps. And some Republicans even called for impeaching her. Once she leaves, Mike DeWine is probably going to appoint someone who is way more conservative than her because of the pressure that the court’s been under.

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What is the model for what conservatives, especially, have been hoping to do with these state Supreme Court elections? Because this isn’t the first year when folks have focused on them and there’s been an outcome that’s been meaningful. I think back to 2019, and I think of Wisconsin, where there was this election for a guy named Brian Hagedorn, and he’s a conservative. There was a lot of concern in that state that having a conservative Supreme Court would be a problem because the state is so gerrymandered at the legislative level that the Supreme Court was a check on that. So is that the vision that’s in conservatives’ heads when they think about how these seats are valuable to them?

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Yes. And you can look at North Carolina as your example of Wisconsin for this election. Republicans flipped the majority from Democrats, who had held a slight 4­–3 majority, but now it’s 5–2 Republican. And that’s a big deal. That hasn’t happened since 2016. And Republicans in North Carolina are guaranteed to keep that majority until at least 2028. In North Carolina, Republicans control of all the different levels of government except for governor. When you look at the money that came into that state and what Republicans are hoping to do, they saw how under a Democratic majority, things like congressional redistricting and gerrymandering were big issues. Next year, the court is expected to hear a case on the restoration of voting rights for felons. And if you have a Republican majority, as opposed to a Democratic majority, on the court, things can change.

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I was looking at some of the decisions that North Carolina’s Supreme Court has weighed in on in the last little bit to think about how this might change. One of the things they did just this month was issue a decision ordering the state to transfer funds to its public education system because they said the state Legislature was inadequately funding public schools. That’s a pretty progressive decision, and I’m not sure it’s the same kind of decision that a 5–2 Republican court would make. 

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You’re right. And that’s why everyone who’s liberal-leaning or a Democrat is scared about what’s going to happen.

When this new majority is in place in North Carolina, they’re going to hear challenges to abortion restrictions and also prohibitions on voting by people with felony convictions. And those are both issues where voters have said that they want fewer restrictions on abortion and they want felons to be able to vote. And they’ve said that in states that are pretty conservative. Like, Florida’s voters voted to give felons voting rights. And we, of course, saw the results on abortion. And it just made me wonder whether the voters in North Carolina really understood the issues at play when they were voting for these Supreme Court justices.

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That’s a great question. You have exit polls for a lot of different races. But, in terms of why people vote for certain justices, it’s really unclear. A lot of times voters, by the time they get to where the judicial elections are on the ballot—because it’s all the way down—they probably are fatigued. They probably haven’t really studied these candidates. A lot of times you just sort of check off the same names.

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Here in New York, there were races for Supreme Court. And I recall seeing that they were uncontested. I could not tell you who these justices were, and I pay attention to political races.

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Here’s a maybe dumb question: Why are Americans electing judges in the first place? Because I look at what we’ve just talked about, and it seems to me that it’s only natural for these races to be getting more aggressive. This is the obvious end point of electing judges.

But they’re not supposed to get more aggressive like this, a lot of political scientists and academics will say. Judges are governed by their own code of moral ethics and code of conduct. Each state has their own judicial conduct commission. And if a judge from the bench is seen to be biased or partial, they are going to get reprimanded by their commission, and they can even be removed from the bench. That’s the worst sanction that you’re going to get, but that does happen from time to time. And when that happens, it doesn’t look good for them.

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You asked why do we even elect these judges? This might sound corny, but when you think about how this country is founded on democracy, and this is another branch of power, why shouldn’t voters have a say in who is in charge of enforcing laws and the constitution of each state? They are a check, and they are needed. If you just have governors appointing them, then it’s going to get political quickly. So at least this is one way for voters to have a say.

When you talk about that, all I can think is, it gets political no matter which way you do it. Like, is there any good faith effort to come up with a new system for getting judges into office?

I think it’s incumbent on the judges and the judicial candidates to police themselves in that respect. You had a Joe Fischer who is unabashedly conservative and Republican and putting elephants on his campaign signs. But you had his opponent who wasn’t doing that and she ultimately won. So, maybe this will show some people that if you try to politicize these judicial races, it’s going to backfire on you.

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