How Dobbs changed Judicial Elections

Last month, Planned Parenthood Votes and the National Democratic Redistricting Committee announced that they would join forces and dedicate $5 million to state supreme court elections this fall, targeting races in Arizona, Michigan, Montana, North Carolina, Ohio, and Texas. It’s a testament to the role that state courts play in areas like reproductive rights and redistricting. And it’s only a tiny fraction of what by all accounts will be a barrage of spending on all sides in state supreme court elections this fall.

You can’t understand state constitutional development without grappling with judicial elections, which are used in 38 states. In many parts of the country, judicial elections have become major political battlegrounds, complete with dark money, special interests, and attack ads. At the same time, you can’t understand modern judicial elections without considering the role of the U.S. Supreme Court, including three rulings that have brought us to the current moment.

The most obvious, perhaps, is 2022’s Dobbs v. Jackson Women’s Health Organization. In overturning Roe v. Wade, the Court made state law, including state constitutions, the primary site for addressing the scope of abortion rights. In a new piece this week, the Center for Reproductive Rights’ Amy Myrick and Alex Wilson point out that as advocates look to pass ballot measures that would incorporate abortion rights into state constitutions, state courts are gatekeepers for what actually gets put on the ballot. They are also, of course, the primary decision-makers in interpreting and applying new constitutional provisions. “A post-Dobbs strategy that empowers voters must also build and protect state courts that will safeguard the democratic process as well as reproductive autonomy,” they argue. (State Court Report is tracking the progress of abortion-related ballot measures across the country. As many as 11 states could vote on abortion rights this fall.)

The Brennan Center has tracked state supreme court elections for more than two decades, and while politicized judicial races are nothing new, their scale since Dobbs is different in kind. In 2021–22, state supreme court elections attracted more than $100 million, nearly double the cost of any prior midterm (inflation adjusted).

The next election cycle, Wisconsin saw a staggering $51 million spent in an election that brought a liberal majority to the court for the first time in 15 years. The fate of Wisconsin’s strict abortion ban, adopted in 1849, loomed large, with the winning candidate, Janet Protasiewicz, explicitly campaigning on abortion rights. (Litigation challenging the 1849 law is ongoing.)

Pennsylvania set its own spending record later in 2023, with a $22 million state supreme court race that also turned on abortion rights. And last month brought a rare competitive election for a state supreme court seat in Georgia, as a former Democratic legislator took to the campaign trail to argue for a state constitutional right to abortion in an ultimately unsuccessful bid to unseat a sitting justice.

But while Dobbs has generated an unprecedented level of interest in state supreme courts, two other U.S. Supreme Court cases created the legal framework that shaped today’s landscape. As recently as 2002, most states prohibited judicial candidates from sharing their views about disputed legal and political issues on the campaign trail. Statements by a candidate about their views on abortion rights could open them up to an ethics complaint.

That changed with Republican Party of Minnesota v. White, in which the Court ruled 5–4 that such restrictions violated the First Amendment by placing, in the words of Justice Antonin Scalia, “most subjects of interest to the voters off-limits.” The dissenting justices warned that opening up judicial campaigning was inconsistent with the role that judges are supposed to play in our democracy. “Elected judges, no less than appointed judges, occupy an office of trust that is fundamentally different from that occupied by policymaking officials,” argued Justice John Paul Stevens. Years later, Justice Sandra Day O’Connor publicly expressed regret for joining the White majority and blamed the ruling for politicizing judicial elections.

Finally, Citizens United v. Federal Election Commission opened the door in 2010 to unlimited “independent expenditures,” or spending by individuals or groups undertaken separately from a candidate’s campaign. Citizens United upended how interest groups engage in judicial elections: rather than make direct contributions to candidates, which generally cannot exceed a particular amount, set on a state-by-state basis, they increasingly spend money via outside groups. The result has been a surge in dark money in state supreme court elections, coupled with the rise of pop-up groups that can sling mud without accountability — trends that have accelerated since Dobbs.

All told, it’s an uncomfortable place for judges, who are asked to play a counter-majoritarian role while also running for election. And the influx of dark money and broader politicization of judicial elections almost certainly undermines public confidence in the courts. Yet as long as state courts are enmeshed in many of the most contested issues of the day, it’s hard to see the political temperature going any direction but up.

Cyberattacks Cause Chaos in State Courts

When the Kansas court system suffered a cyberattack last year, it took four months and millions of dollars for the system to return to normal. That attack was just one of many on court systems across the country over the last 18 months, causing postponed trials, delays on protective orders, and mass confusion for the public and court employees, writes journalist David Brown. “The attacks are becoming more sophisticated, and more personalized,” the managing director of the National Center for State Courts’ court technology program told Brown. READ MORE

Wisconsin Justices Debate Constitutional Interpretation

In a decision involving federal equal protection claims, justices on the Wisconsin Supreme Court penned concurrences encouraging litigants to make state constitutional arguments. But the justices disagreed as to “how a future court might interpret a similar challenge under the Wisconsin Constitution,” explains the Institute for Justice’s Anthony Sanders. The concurrences reflect different views on constitutional interpretation: “Are text and history the only game in town, or is a ‘pluralistic approach’ more appropriate?” READ MORE

Hawaii Heightens Protections for the Unhoused

The Hawaii Supreme Court recently ruled that unhoused people living in a Maui County park were entitled to a hearing before police seized and destroyed their belongings. The decision is historic not just for finding that such a hearing would be required as a matter of due process, writes the ACLU of Hawai’i’s Wookie Kim, the plaintiffs’ attorney, but also for the court’s use of a “state-constitution-first approach.” READ MORE

Texas Refuses to Expand Exceptions to Abortion Ban

In Zurawski v. Texas, the Texas Supreme Court rejected a state constitutional challenge to the state’s strict abortion laws, refusing to clarify or expand the scope of the law’s health exceptions. The Brennan Center’s Erin Geiger Smith wrote about the decision for State Court Report and also spoke to the senior litigation director at the Center for Reproductive Rights, the organization representing the plaintiffs, about Zurawski and abortion litigation nationwide. READ MORE

An Interview with Indiana’s Chief Justice

Indiana Chief Justice Loretta Rush spoke with the Brennan Center’s Gabriella Sanchez about what makes the Indiana Constitution special, how to solve the state’s lawyer shortage, and the importance of judges “get[ting] out from behind the bench” to strengthen their communities. The interview is part of a State Court Report series of conversations with state supreme court judges. READ MORE

What Else We’re Reading

• The New Yorker’s Eyal Press wrote about state supreme courts’ potential for expanding and preserving constitutional rights. The June article features numerous experts, scholars, and practitioners who focus on state court litigation, including State Court Report’s Alicia Bannon and Douglas Keith and the Brennan Center’s Michael Waldman, and highlights discussions from our February symposium.
• GreenLaw is featuring reflections from the Climate Constitutionalism Conference, which was held this spring and hosted by Pace University’s Elisabeth Haub School of Law and Widener University’s Delaware Law School. The event brought together legal scholars, activists, and students to discuss major environmental issues and potential solutions — including under state constitutions. 
• The State Law Research Initiative has a new database that allows users to search state high court justices by a variety of characteristics, including state, professional experience, race, gender, and party affiliation. Kyle Barry, the initiative’s director, wrote about the new resource for State Court Report.

You May Have Missed

• The Arkansas Supreme Court dismissed a state constitutional challenge to requirements that the state attorney general approve ballot measure language and that signatures for such initiatives be collected from 50 counties rather than 15. The court ruled that it lacked jurisdiction to hear the case. The new rules for ballot initiatives make it harder for initiatives to get before voters.

Notable Cases

Worrell v. DeSantis, Florida Supreme Court

Denied a bid by Monique Worrell, an elected Florida state attorney, to invalidate an order by Republican Gov. Ron DeSantis, removing her from office. Worrell, a Democrat, contends that her removal was politically motivated. The court said DeSantis was within his constitutionally conferred rights to suspend Worrell for what he alleged was neglect of her duties and incompetence. A dissenting opinion, raising concerns about due process and that the court was overriding the will of voters, said DeSantis’s allegations against Worrell were not specific enough to permit the prosecutor to mount a meaningful defense. // Law Dork with Chris Geidner

League of Women Voters of Kansas v. Schwab, Kansas Supreme Court

Held that voting is not a fundamental right protected by the Kansas Constitution and instead is “universally understood as a political right.” The court found that laws that added a new signature-matching requirement for absentee ballots and limited the number of advance ballots any person can return on behalf of other voters do not violate the right to vote, but that a law criminalizing conduct that gives the false appearance of being an election official likely violates free speech. // Kansas City Star

In re Dallas County, Texas Supreme Court

Dallas County filed a petition asking the Texas Supreme Court to enjoin the establishment of a new appellate court with exclusive statewide jurisdiction over certain cases against state officials. Dallas argues that the state constitution does not permit lawmakers to create a statewide court of appeals or deprive existing courts of appeals of their jurisdiction. // Texas Lawbook

Oral arguments for prominent cases are previewed monthly, and the resource is updated as arguments are added to the calendar. The June preview is here.

You can find briefs and opinions from notable state constitutional lawsuits in our State Case Database.

 Brennan Center for Justice at NYU School of Law

120 Broadway, Suite 1750 New York, NY 10271 646-292-8310 brennancenter@nyu.edu

Support Brennan Center

Did you get this message forwarded from a friend? Sign up here.

View Online