The Hill: Record spending floods state supreme court races

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Big donors and national party groups poured nearly $100 million into state supreme court races in the last two-year campaign cycle as those venues take on new importance in cases ranging from the culture war to the decennial redistricting process.

That amount of money, tallied in a new report, is the largest spent on judicial contests in the two decades since the Brennan Center for Justice began tracking it. One in every $5 spent on supreme court races in the past 20 years was spent in 2019 and 2020.

“We saw more money than ever before generally, [and] more money than ever before from these interest groups,” said Douglas Keith, an attorney at the Brennan Center and the report’s lead author. “What is probably a record-setting cycle is probably just a glimpse of what these races are going to look like.”

State supreme court contests are ordinarily staid affairs. In many states, the candidates do not run under a party label, though the two parties make clear which candidates they support. Recent races in states like Montana, Washington and Minnesota drew less than half a million dollars in candidate or outside spending.

But in some states, high court races are as fraught as battles for more overtly partisan legislative or executive positions. That is especially true, Keith said, in elections where a state court’s ideological or partisan majority is on the line.

A Wisconsin Supreme Court contest in 2019 was among the most expensive ever: The two candidates spent nearly $9 million between them, and national interest groups added another $9 million as Republicans vied to solidify their hold over the court. The Republican-backed candidate, Brian Hagedorn, beat the Democratic-backed candidate, Lisa Neubauer, by a margin of just 6,000 votes out of 1.2 million cast.

Last year, Republicans ousted two incumbent members of the North Carolina Supreme Court, including Chief Justice Cheri Beasley, by slim margins — Beasley lost to an associate justice by a margin of only 401 votes. A Republican candidate kept a third seat. Between those three elections, candidates and groups spent $10 million.

Much of the explosive spending is coming from a growing network of outside funders like the Judicial Fairness Initiative, a project of the Republican State Leadership Committee, and to a lesser degree by the National Democratic Redistricting Committee, which spent heavily in the Wisconsin election.

Those groups are not shy about laying out their interest in judicial elections — both explicitly say that state supreme courts are instrumental in deciding redistricting cases.

“These interest groups are very sophisticated political spenders and they knew these courts were going to play a big role in the upcoming redistricting cycle,” Keith said. “These are all states where ideological and or partisan majorities on the court were either at stake in this election or could be at stake in upcoming elections.”

But some money comes from in-state groups, largely funded by wealthy donors. The most expensive judicial contest in 2020 happened in Illinois, where the billionaire conservatives Dick Uihlein and Ken Griffin spent millions trying to boot Supreme Court Justice Thomas Kilbride from office. The two sides spent almost $10 million, more than any other similar contest in state history.

Kilbride, a Democrat, took 56 percent of the vote — short of the 60 percent he needed to retain his job.

More than half the states give voters a say in electing or retaining supreme court justices. In eight states — Pennsylvania, Ohio, Illinois, North Carolina, Alabama, Louisiana, Texas and New Mexico — justices run as members of a political party. Fourteen other states hold what are ostensibly nonpartisan elections.

The flood of money comes at a time when state courts are being asked to weigh in on election challenges far beyond redistricting. After the 2020 elections, former President Trump’s legal team brought lawsuits challenging his defeat in nearly 200 courts — less than a quarter of them, 44 out of 194, in federal courts.

Trump won just one suit in federal court and 27 in state courts, according to Russell Wheeler, a visiting fellow at the Brookings Institution’s Governance Studies Program. Trump’s legal team lost 43 cases in federal court and 123 in state courts.

But adding money to judicial elections challenges the notion that supreme court justices are impartial and the justice system itself is fair. Keith pointed to a Brennan Center survey that found about 90 percent of Americans believe campaign money affects judicial decisions — and that 50 percent of judges polled at the same time agree.

“All of this undermines the public perception of courts as somehow different from the other political branches,” Keith said. “Those chickens are really going to come home to roost when these courts are deciding high stakes cases about fundamental rights or our democracy and elections.”