Conservative groups plan to invest record sums this year to shape below-the-radar state Supreme Court races, after Republicans suffered setbacks in redistricting court battles in several key states.
Among the top targets: Ohio and North Carolina, where multiple Supreme Court seats are on the ballot and justices have tossed out maps that favored Republicans.
“People used to think that redistricting was once every 10 years, but it’s now an every-cycle fight,” said Andrew Romeo, a spokesman for the Republican State Leadership Committee, which backs GOP candidates at the state level and is pledging increased spending through its Judicial Fairness Initiative. “Every cycle, there are critical Supreme Court races that are going to impact redistricting.”
The group said its spending will top its previous record of more than $5 million in these races, although Romeo declined to disclose a specific budget.
The growing investments are an “increasing recognition of how powerful these courts are,” said Douglas Keith, a counsel at the liberal-leaning Brennan Center for Justice at New York University’s law school, who tracks the issue.
Justice on the ballot
Redistricting fights – which can determine the balance of political power in the US House of Representatives and in state legislatures – have increasingly been waged at the state level, following the US Supreme Court’s 2019 ruling that federal courts have no role to play in policing partisan gerrymandering.
State high courts could also serve as the next frontier in other high-stakes litigation, including access to abortions in individual states should the US Supreme Court undermine Roe v. Wade in its ruling on a Mississippi case it heard last December.
Thirty-eight states use elections to choose who sits on their highest courts. And this year, 87 – or one-quarter of the nation’s 344 state Supreme Court seats – are on the ballot in 32 states, according to Ballotpedia.
Spending to influence these races has skyrocketed in recent years.
A Brennan Center report, co-authored by Keith earlier this year, found that state and national spending in these contests soared to a record $97 million during the 2019-2020 election cycle.
Outside groups pumped about $35 million into the races and, in two states – Michigan and Wisconsin – outspent the candidates themselves, according to the report. Nationally, conservative interest groups outspent liberal outside groups in the 2020 judicial contests, the analysis found.
In these lower-profile contests, Keith said, “deep-pocketed outside interest groups can really dominate and can change the entire conversation around an election with an amount (of spending) that might seem paltry if you are talking about a US Senate election.”
Leaders of the Judicial Fairness Initiative have sought to rally conservative donors by decrying what they call a successful “sue until it’s blue” strategy by Democrats – led by National Democratic Redistricting Committee founded by former US Attorney General Eric Holder.
“Republicans risk an even worse fate in the 2030 redistricting process if we fail to increase the resources we are currently spending in state court races to keep pace with the Democrats,” Andrew Wynne, the Judicial Fairness Initiative’s vice president, said in a memo earlier this year.
In a statement, NDRC President Kelly Burton said her group “will fight back against any Republican attempt to rig the judicial system against fairness and threaten the independence of state courts.”
Buckeye State battles
In recent months, state Supreme Courts have played pivotal roles in redistricting fights. On Friday, the conservative majority on Wisconsin’s high court adopted Republican-drawn state legislative boundaries.
A day earlier, Ohio’s Supreme Court struck down proposed state House and Senate maps for a fourth time.
Chief Justice Maureen O’Connor, a Republican who has served on the bench for two decades, has joined Democrats on Ohio’s high court in 4-3 rulings to reject maps.
The Ohio Constitution now requires the partisan makeup of the state’s legislative districts to roughly mirror Ohioans’ voting preferences in statewide elections over the last decade. That split roughly 54%- 46% in favor of Republicans. But early maps drawn by the GOP majority on the Ohio Redistricting Commission gave Republicans the opportunity to secure lopsided majorities in the state legislature.
O’Connor’s votes have drawn anger from Republicans, with some GOP politicians calling for her impeachment.
O’Connor is retiring at the end of this year to comply with the state’s age limits for justices, and a race is underway between Democratic Justice Jennifer Brunner and Republican Justice Sharon Kennedy to succeed her.
Two other Republicans on the Ohio Supreme Court also are running for reelection this year.
The Ohio Chamber of Commerce already has set a goal of raising $4 million to shape Ohio’s high court contests, doubling what it has spent on these races in recent election cycles.
Chamber CEO Steve Stivers said business-related concerns, such as potential changes to the state’s liability laws, rather than redistricting is driving the group’s interests in the high court races.
The justices are currently weighing whether to overturn an Ohio law that caps the damages plaintiffs in civil cases can be awarded for pain and suffering.
“We want a lot of companies to come here, and we want the existing small businesses to invest in their business and grow, and you can only do that when you have a legal structure you can depend on,” said Stivers, a former GOP congressman.
“We have a pro-business majority … in the state House and the state Senate. We have a pro-business governor,” he added. “But if we have the wrong four people on the Supreme Court, we could go backward every day.”
The Ohio GOP may have another advantage in November: Under a new state law, the party affiliation of Supreme Court candidates will appear on the ballot in a state that has been trending Republican.
Other state showdowns
Republicans also are looking to flip control of Supreme Courts in several other key states.
In North Carolina, Democrats now hold a 4-3 advantage on the state’s high court. That court has struck down Republican-drawn congressional maps that it ruled gave the GOP an unfair advantage, and a state trial court imposed a map that has been drawn by court-appointed experts.
The court-drawn map offers more opportunities for Democrats to win seats, but it is only expected to be in effect for the 2022 election.
If Republicans take control of the North Carolina Supreme Court and retain their majorities in the state legislature, the GOP would be able to draw maps that will be used in 2024 and years beyond.
The terms of two Democratic justices in North Carolina – Sam Ervin and Robin Hudson – expire this year. Ervin, who has already been targeted by advertising from the Judicial Fairness Initiative, is running for reelection.
Other states drawing attention from Republicans include Michigan, where two members of the seven-member court are up for reelection, and Illinois, where four of seven seats will be decided this year.