Democrats are turning their energy to state supreme court elections in 2024 as battles over abortion, gerrymandering and other key issues go before state judges.
The party scored a key victory in Wisconsin last month, flipping the high court’s conservative majority for the first time in 15 years before it’s expected to consider a contested abortion ban. At the same time, the GOP-controlled Supreme Court in North Carolina dealt Democrats a major blow last week in overturning previous voting maps.
Both their wins and setbacks at the high court have underscored the importance for Democrats to elect liberal-leaning justices.
Heading into 2024, more than 30 states will hold elections for their state’s top courts.
“Certainly, this third branch of government is getting a lot of attention with the understanding that they have just as much public policy power as state legislatures and state executive officers,” said Michael Bitzer, professor of politics and history at Catawba College.
The once-sleepy affair of a judicial election has only grown in attention and price tag, and the U.S. Supreme Court’s decisions on issues like gerrymandering and abortion add to the increasing importance of state legislatures.
“This is part of a general pattern in which as the U.S. Supreme Court increasingly dilutes its protections of what were once considered fundamental rights, the fights over the meaning of those rights shifts to state courts as well as state legislatures,” said Howard Schweber, a political science professor at the University of Wisconsin-Madison.
“In states where one party or the other is entirely in control, this may not be hugely disruptive. But in contested battleground states like Wisconsin, constitutional politics has gone from a matter of interest primarily to political scientists to the driving force in elections,” he added.
The high court ruled in 2019 that partisan gerrymandering claims present political questions beyond the reach of the federal courts, making state courts the frontlines.
In North Carolina, a recent gerrymandering case put the impact of court control on full display.
The North Carolina Supreme Court’s previous Democratic majority struck down GOP-drawn voting maps as a political gerrymander. But after Republicans retook control of the court in the midterms, they granted a rare rehearing of the case. Last week, the court along partisan lines voted to side with state GOP lawmakers and overrule the earlier decision.
The new Republican majority simultaneously handed down separate conservative victories on election issues by reinstating laws that require voter ID and prohibit certain felons from voting.
“Make no mistake, the only real difference now is the makeup of the court, which enables the Republican majority in Raleigh to gerrymander our maps without repercussion and trample over the rights of voters across our state,” Rep. Wiley Nickel (D-N.C.), who represents a swing district, said after the decision.
But Republicans saw the previous makeup of the North Carolina Supreme Court as out of touch with the voting electorate.
“I think North Carolina should be seen as kind of a cautionary tale for other states where voters aren’t looking for activist courts. They want courts to preserve precedent, and they want courts to not go wild off the rails, and I think what you saw in North Carolina is the court that went way too far left for the state,” said Adam Kincaid, president and executive director of the National Republican Redistricting Trust (NRRT).
On abortion, the Supreme Court’s decision last summer to overturn federal abortion protections similarly led to a flood of litigation in state courts. Anti-abortion and abortion-rights groups are battling over states’ pre-Roe laws and whether state constitutions guarantee a right to abortion.
Taken together, the Supreme Court’s decisions have placed increasing importance on the state supreme court elections — and upping the stakes on consequential issues.
“I think that the damage done by the U.S. Supreme Court in taking up a case to address Roe v. Wade being Dobbs is pretty far-reaching. And I’m not sure that folks have fully appreciated the leeway that they may have given state supreme courts that now seemingly in some capacity, feel comfortable addressing extremely complete arguments and using only a shift in political dynamic and personnel to make those changes,” said John Bisognano, president of the National Democratic Redistricting Committee (NDRC).
Next year, 80 seats on state supreme courts are up for election. Some candidates officially run as a party’s nominee, while some are technically nonpartisan. Others are retention elections, where voters decide if an incumbent judge should remain in office.
Amid an increasingly politically polarized landscape, state court races have become more expensive. About $97 million was spent on the contests in the 2020 election, the most ever recorded, according to the Brennan Center. Political organizations on both sides of the aisle have bolstered their support for court races in recent years.
In the Wisconsin Supreme Court election decided last month, one analysis suggested the price tag for the race was more than $45 million. The liberal justice who won the state Supreme Court race — Milwaukee County Judge Janet Protasiewicz — raised eyebrows for notably stating her stances on key issues like abortion and redistricting.
But some Democrats suggest candidates may need to start using that playbook to notch key judicial wins.
“I do think the Democrats are going to have to think about more explicit messaging as Wisconsin is maybe the example,” said Pope “Mac” McCorkle, a professor at Duke University’s Sanford School of Public Policy and a former Democratic political consultant in North Carolina.
“I think the Democrats have not had a strong message and unfortunately even though I personally sympathize with this message — the message that you want judges who are going to make nonpartisan decisions, take the cases on, try to follow precedent, trying to follow legal reasoning rather than political reasoning — does not seem to capture the public’s imagination,” he said.