The newest election battlefield for abortion: State supreme courts

As presidential candidates and state legislators campaign over the future of abortion in America, elections for the third branch of government have largely escaped scrutiny on the issue.

Until now.

Since the U.S. Supreme Court struck down Roe vs. Wade, elections for state supreme court justices have become a new political frontier in the abortion fight, with interest groups pouring unusual amounts of money into typically little-known races.

An unprecedented $100.8 million was spent on state justice races in the election cycle when the 2022 Dobbs decision overturned Roe, according to the Brennan Center for Justice. Funding from the right and left is now about equal, the Brennan Center reported, and the current election cycle is expected to set a record for the greatest amount of money spent on state supreme court elections.

“Whether we like it or not, big spending and issue campaigning in state judicial races are here to stay,” said Michael Milov-Cordoba, counsel for the Brennan Center, a nonpartisan think tank on justice and policy.

We are in the fight of our lives to protect and restore our fundamental freedoms — and our courts are the front lines.

— Alexis McGill Johnson, Planned Parenthood Action Fund

Last week, the Planned Parenthood Votes super PAC and the National Democratic Redistricting Committee announced they would invest $5 million on state supreme court races “to protect democracy and reproductive rights.”

“We are in the fight of our lives to protect and restore our fundamental freedoms — and our courts are the front lines,” said Alexis McGill Johnson, president and chief executive of the affiliated Planned Parenthood Action Fund, in a statement.

Eighty supreme court seats in 33 states will be on the ballot in November. Some justices will run against opponents (abortion was an issue in such an election this month in Georgia). Other incumbent justices face retention votes.

Typically, retention elections fly by unnoticed with little campaigning or media attention. But in the swing state of Arizona, two justices up for retention — Kathryn Hackett King and Clint Bolick — sided with the majority that decided the state’s near-total abortion ban from 1864 superseded the state’s 2022 law against abortions after 15 weeks of pregnancy.

Legislators rushed to repeal the 1864 law in a narrow vote, but a group called Progress Arizona is targeting Bolick and King with a campaign to vote them out.

“Usually I would never put a dime on betting in favor of someone losing a retention election,” Rebecca Gill, associate professor of politics at the University of Nevada, Las Vegas, said of the Arizona justices’ chances. “But in this one, I’m actually kind of thinking it’s a little bit more plausible.”

If voters decide not to retain a justice, Gov. Katie Hobbs will decide the replacement — the first time in years that a Democratic governor in Arizona would make an appointment to the state’s highest court.

Arizona’s ballot also is likely to have a proposed constitutional amendment to protect abortion access, which could drive more voters to the polls.

“Some of these culture war cases are just easier to understand for most people,” said Mary Ziegler, a UC Davis law professor and author of “Abortion and the Law in America: Roe v. Wade to the Present.” “There’s also a history in the United States of questions related to sex and gender being really foundational and polarizing.”

Since the 2022 midterm election, Democrats have hammered abortion as a major issue to drive angry voters to the polls. That has become especially true in 2024.

“Let’s face it, I mean, Democrats aren’t clamoring to be able to cast a vote for Joe Biden,” Gill said. “Enthusiasm isn’t really that high, and so by being able to get those people there, using these abortion provisions on the ballot, it can change the shape of the electorate for that cycle.”

Activism and money for state supreme court seats has historically come from the right, experts say. A prime example: In 2010, conservatives furious over the Iowa Supreme Court’s ruling to allow same-sex marriage targeted three justices up for retention. All three were booted from the court.

The growing presence of cash in state supreme court races may affect which judges run for election, Gill said.

“A lot of judges tend not to be really good at [fundraising], because it really is out of character for how most lawyers are trained,” Gill said. “People who would be put off by the idea of having to raise money, even if it’s at arm’s length, are not running for these positions anymore. So changes in the way the elections work will absolutely change the people who will run.”

Some court watchers worry the increased attention on state judicial races could erode the impartiality of the courts. The Brennan Center supports a merit process for selecting new justices, Milov-Cordoba said, with long terms “to avoid some of the politicization that comes with judicial elections.”

Justices are still bound by law, of course, and cannot unilaterally make policy changes. Bolick, one of the Arizona justices vying to keep their seats in November, vociferously defended his vote on the abortion decision in an Arizona Republic op-ed last week, railing against his opponents for what he saw as their attack on an independent judiciary.

“They claim the abortion decision reflected the court majority’s policy preferences rather than the law. Nonsense,” he wrote. “Serious commentators, liberal and conservative, who actually read the decision (which I encourage voters to do), agree it is solidly grounded in law.”

Some legal scholars say that politics has always been part of the judicial branch, and that increased attention raises awareness of the crucial role judges play in government.

“All judges are representatives, even though we don’t like to think of them as that,” said Todd Curry, associate professor of politics at the University of Texas at El Paso. “Traditionally, there’d been kind of a general concern, stemming from the National Bar Assn. — you didn’t really campaign [for judicial seats]. Now, we’re definitely seeing judges going, ‘OK, in order to do this, I have to be a representative. I have to actually campaign on issues.’”

John Barrow, a former Democratic congressman, made abortion the center of his recent unsuccessful bid to replace Justice Andrew Pinson on the Georgia Supreme Court.

Georgia’s conservative Gov. Brian Kemp spent $500,000 to support Pinson’s campaign. Pinson had previously defended the state’s abortion limitations while serving as the state’s solicitor general.

Barrow, who sometimes wore a pink T-shirt emblazoned with the phrase “Empowering women” on the campaign trail, argued that Georgia’s constitution protects access to abortion. A lawsuit challenging a 2019 law against abortions once a “heartbeat” — actually a flutter of embryonic cardiac cell activity — can be detected is winding its way through the Georgia court system, and could reach the state Supreme Court.

“In this case, you do have a heartbeat law sitting in the court, and John Barrow specifically saying, the reason that I am running is to have abortion on demand in Georgia,” said Cole Muzio, president of Frontline Policy Action, a conservative political action committee in Georgia that has endorsed Pinson. “And that’s something that legislative or statewide candidates may say, but it’s not something judges are in any realm supposed to say.”

Barrow’s explicit stance on abortion moved Katherine Wertheim, a fundraising consultant in Ventura, to write postcards for the candidate from California. A registered Democrat, Wertheim said she prefers judicial candidates to be open about where they stand, so people can make informed decisions on how to vote.

“It’s a lovely idea to think that justices don’t make up their minds until [seeing] a case,” she said, adding, “I would love to return back to a world where I could believe that justices would be nonpartisan. … But we’re not living in that charming world anymore. And so yes, I think it’s perfectly OK for a candidate to say who he is and how he will vote.”

A justice’s position or party is not always obvious to voters. Some states, like Michigan, don’t publish their party affiliations on the ballot.

Like nearby Ohio, Michigan has a contested high court election in the fall. Both courts now have narrow party majorities. In Michigan, where two seats are up in November, four out of seven justices were nominated by Democrats. Ohio, where Republicans hold the majority, has three seats on the ballot.

Both states voted to protect abortion access in their state constitutions in the last two years, and cases related to the abortion laws are working their way through the courts.

Florida’s Supreme Court has two seats at play after a banner year for abortion, too. The state court’s recent ruling led to a six-week abortion ban taking effect — but it also allowed for a ballot measure that would protect abortion access.

Wisconsin is perhaps the most notable example in recent history of abortion animating a state supreme court race. Liberal Janet Protasiewicz faced the conservative Dan Kelly, a former state justice. Whoever won would join the court in ruling on the state’s 1849 abortion ban.

Donors on both sides flooded the state with a total of $51 million — more than double the cost of any past election for a state Supreme Court seat, according to the Brennan Center. When Protasiewicz won last April, she flipped the court to a Democratic majority. The 1849 law has yet to come before the court.

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Kevin harson

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