Wall Street journal: Toe to Toe With Eric Holder

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The first step in solving a problem is recognizing you have one. Republicans have belatedly identified a big one of theirs, which goes by the name Eric Holder. Let the state supreme court campaigns begin.

As the Beltway media fixates on who will control the House and Senate, the Republican State Leadership Committee is newly focused on the state judges who increasingly set the election ground rules. The organization—charged with electing down-ballot state-level Republicans—announced in February it will spend more than it ever has this year on state court races. Among its targets are the highest courts in Illinois, Michigan, North Carolina and Ohio. 

The goal: conservative majorities that will serve as the final judicial word on issues from redistricting and public safety to abortion and election laws.

The GOP’s fresh focus on this battle is an admission—spelled out in a February RSLC strategy memo—that the former attorney general outfoxed it. Since leaving the Justice Department in 2015, Mr. Holder worked to undo the damage his boss, Barack Obama, did to Democrats in 2010. That’s when Republicans won some 1,000 down-ballot legislative seats, putting it firmly in control of the redistricting process that followed. Mr. Holder created the National Democratic Redistricting Committee with the goal of wresting back Democratic control over gerrymandered maps.

Mr. Holder’s campaign to retake state legislatures has largely flopped. Despite Democrats’ spending more than a half a billion dollars on the project in the 2020 elections, Republicans held all 59 of their legislative majorities and flipped both New Hampshire chambers. But what Mr. Holder understood—and Republicans initially didn’t—is that legislatures aren’t the last word on legislative maps. Courts are.

In 2015 Democrats plowed millions into three seats on the Pennsylvania Supreme Court and changed the balance of power. Democrats then sued over the district map that had been in place since 2011, and in 2018 the state high court replaced it with one more favorable to their party. Rinse and repeat in North Carolina, where the Holder forces in 2018 and 2020 helped retain a Democratic majority, which redrew maps to favor Democrats. Liberal groups spent heavily to capture Michigan’s high court, as a backstop in case the state’s “independent” redistricting commission failed to stack the deck in their favor. This is the Democrats’ “sue to blue” strategy, and it’s the reason Republicans came out of the most recent redistricting fight with a black eye, despite doing well in 2020.

The importance of state-court elections has grown since the U.S. Supreme Court ruled in 2019 that gerrymandering is a political issue, not reviewable by federal courts. That puts state legislatures—or state courts—in control. Republicans also understand they can no longer afford to pay attention to court control only at census time. Activist courts have proved willing to entertain lawsuits to throw out maps at any point in the 10-year cycle. Add the U.S. Supreme Court’s renewed focus on federalism—including the return of abortion to the states—and the state-court stakes grow ever higher.

The RSLC began playing catch-up in early 2019, when it went all in to block a Democratic attempt to flip the majority on the Wisconsin Supreme Court. That court, after protracted litigation (and a U.S. Supreme Court scolding), this spring rejected attempts to override the Republican Legislature’s map. This rare bit of judicial modesty set Mr. Holder to complaining it amounted to the “destruction of true representative democracy.”

This year’s GOP efforts include Ohio, where Republicans still hold a narrow high-court majority (4-3) but have suffered a string of defeats in recent years. The parties are waging a particularly fierce fight over the seat of retiring Chief Justice Maureen O’Connor, a Republican who spent this year siding with the Democratic minority to throw out GOP redistricting maps. Then there’s North Carolina, where Republicans see a chance to capture at least one of two Democratic seats and flip control.

Republicans also see a shot to retake the narrowly divided Michigan Supreme Court, which they lost two years ago. And the RSLC will even be playing to capture two seats on the Illinois Supreme Court, which has a 4-3 Democratic majority. That opening came after Illinois redrew its judicial districts for the first time in nearly 60 years, which has made the two races surprisingly competitive.

Not that any of this will be easy. Democrats have an army of activist groups and donors that reliably pour money into state legislative and court races; the GOP is often left to punch above its weight. The RSLC also has its hands full defending its sizable number of legislative majorities while eyeing chambers in a few tougher states, like the Minnesota House and the Colorado Senate.

In the end, the GOP’s state-court chances may come down to the size of the Republican midterm victory this fall—if there is one. Another reminder to Republicans of how much they have to lose if they whiff this election cycle.