The politics of judicial elections, 2019-20

In 2019-20, state Supreme Court elections attracted more money – including more spending by special interests – than any judicial election cycle in history, posing a threat serious about the appearance and reality of justice throughout the country.

Thirty-eight states use elections to choose the judges who sit in their highest courts, who generally have the final say in interpreting state law. Over the past two decades, the Brennan Center has tracked and documented more than $500 million spent on these races. Our analysis reveals that the 2019-2020 election cycle was the costliest ever (adjusted for inflation). In fact, no other round comes close to the nearly $100 million that major donors and interest groups spent influencing the makeup of state supreme courts in 2019-20.

These unprecedented expenditures testify to the power and influence of state supreme courts, which often fly under the public radar. As voters headed to the polls on Election Day in 2020, for example, the Missouri Supreme Court announced it would not hear Johnson & Johnson’s appeal for a $2 billion verdict against it in a product liability claim. Massive stakes like these, for both business interests and litigators, are what fueled some of the first costly court races two decades ago.

The current political moment only raises the stakes. In 2020 alone, state supreme courts have ruled on everything from ballot access and challenges to election results to emergency orders from governors regarding the Covid-19 pandemic. Going forward, state courts play a crucial role in the ongoing redistricting cycle, including resolving disputes over racial discrimination and partisan gerrymandering and even drawing electoral maps in some states.

The 2019-2020 election cycle was less of an aberration than an escalation, however. A newly expanded conservative majority on the United States Supreme Court, for example, only makes it more likely that state courts and constitutions will be a focal point as an alternative venue for protecting rights and resolving large-scale disputes. wingspan. In the future, more people and more interest groups — many with deep pockets — will almost certainly pay close attention to who sits on these courts and how they reach the bench.

Main conclusions

  • State and national spending set new records. This round set an overall national spending record of $97 million, 17% higher than the previous record set in 2004 (adjusted for inflation). He also nearly doubled the spending record in a retention election, in which a sitting judge represents a vote for or against rather than facing off against an opponent, with an election of $9.9 million in the Illinois. Government spending has also reached new heights. North Carolina had its most expensive Supreme Court race ever, as did Wisconsin in 2019 — before breaking that record again in 2020.
  • Outside special interests spent more than ever. Interest groups set another record this cycle, spending about $35 million on ads and other election activities, regardless of the amounts they paid to the candidates themselves. This spike surpassed the previous record set in 2015-2016 and more than doubled interest group spending in each previous cycle. Interest groups accounted for 36% of all spending in 2019-20 and spent more money than the candidates themselves in Michigan and Wisconsin. Interest groups on the left came closer than they did in previous cycles to tying those on the right, spending $14.9 million compared to $18.9 million for conservative groups.
  • The biggest spenders included both long-time players and newcomers. As in other recent cycles, the Republican State Leadership Committee’s (RSLC) Judicial Fairness Initiative (JFI) was active in most races, spending $5.2 million in five states. At least $1 million of the RSLC’s budget came from the Judicial Confirmation Network (also known as the Judicial Crisis Network), the black money group that also spent millions putting Neil Gorsuch, Brett Kavanaugh and Amy Coney Barrett to the United States Supreme Court and who has always been one of the biggest spenders in state Supreme Court elections. But new groups have also entered the fray: in Illinois, two state billionaires funded $5.9 million in spending by Citizens for Judicial Fairness (CJF), and in Texas, business interests in the government, including many from the oil industry, provided $4.5 million. expenditures by the new PAC on judicial fairness.

At a time when our democracy is being tested, it is crucial to ask whether modern judicial elections leave state supreme courts equipped to perform their vital constitutional role. The courts will need the public’s trust to effectively counter undemocratic forces, but this increase in spending gives the public little reason to believe that the courts are independent of big donors, or different from the political branches of government. Indeed, research suggests that campaign spending influences judicial decision-making — and more specifically, that re-elected judges are more likely to rule in favor of their donors and the political parties that support them.

States have a wide range of tools to mitigate the damage documented in this report, including eliminating Supreme Court elections or limiting judges to long single terms, providing public funding to judicial candidates, strengthening disclosure rules and enacting recusal and ethics reforms. The 2019-2020 cycle underscores that the challenges posed by modern Supreme Court elections are not going away – and that urgent action is needed.