Voters and the Other Supreme Courts

The Supreme Court is on Tuesday’s ballot, literally in some states. Most state high-court judges don’t have lifetime tenure and have to face voters periodically for reconfirmation or re-election. On this week’s ballot are 66 high-court seats in 31 states, including three in North Carolina and two each in Georgia, Michigan and Ohio. Democrats hope to unseat conservatives and gain control of Ohio’s high court for the first time since 1993 and Michigan’s since 2010.

Most supreme court elections are nominally nonpartisan (North Carolina and Pennsylvania are notable exceptions). But they’re still political. According to the Brennan Center for Justice at NYU Law, $40 million was spent on state supreme-court races in the 2017-18 election cycle. These races are especially important this year because state supreme courts will decide challenges to legislative districts drawn after the 2020 census. In Rucho v. Common Cause (2019), the U.S. Supreme Court rejected a challenge to North Carolina’s Republican-drawn congressional map and held that partisan gerrymandering was a political issue beyond the reach of federal courts.

Several months later, partisan lower-court judges in North Carolina struck down the same map, holding it violated the state constitution’s mandate that “all elections shall be free.” Republicans redrew the map rather than appeal to the state Supreme Court where Democrats held a 6-1 majority. A map redrawn by the Pennsylvania Supreme Court cost Republicans three seats in 2018. Democrats are favored to pick up two U.S. House seats in North Carolina under its redrawn map.

This September the Pennsylvania court’s Democratic majority also ordered county officials to count mailed-in ballots that arrive up to three days after the election. Ignoring an express statutory deadline, the justices held that potential mail delays disfranchise voters and violate the state constitution’s guarantee of free and equal elections.

In areas beyond electoral politics, too, state supreme courts often issue sweeping policy pronouncements. Teachers unions have cited state constitutional guarantees of free and equal public education in lawsuits to compel legislatures to give schools more money. Supreme courts in Kansas, Ohio and New Jersey ruled in their favor.