State Supreme Courts have become an electoral battleground. But some
states choose a different path
[April 07, 2025]
By CHRISTINE FERNANDO and JOHN HANNA
TOPEKA, Kan. (AP) — The race for control of the Wisconsin Supreme Court
drew $100 million in campaign spending, attack ads and the attention of
President Donald Trump and close ally Elon Musk.
While its spending set a record for a U.S. judicial contest, the race
that ended Tuesday was the apex of a trend building for years as state
Supreme Court races across the country have gotten increasingly costly
and vitriolic. The partisan tone of the Wisconsin race and the amount of
money it drew from outside interest groups raise questions about whether
elections are the best way to fill seats for bodies that are supposed to
be nonpartisan and ultimately decide the fate of state laws and citizen
ballot initiatives.
The politicized nature of the contests was illustrated starkly on Friday
when a Republican-majority appellate panel in North Carolina sided with
a Republican state Supreme Court challenger who is seeking to throw out
thousands of ballots from last November's election.
These races have become priorities for both major parties because state
high courts have been playing pivotal roles in deciding rules around
redistricting, abortion and voting rights while also settling disputes
over election outcomes.
Some states shifted toward electing justices “to bring the process out
into the sunlight, to disempower powerful political actors from getting
themselves or allies on the bench, or to provide some level of public
accountability,” said Douglas Keith, senior counsel for the Brennan
Center’s judiciary program. “But with these modern judicial elections,
these highly politicized races are not really serving any of those
goals."
Not every state puts its Supreme Court seats up for a statewide vote.
Some use appointment processes that allow candidates to avoid public
campaigning and the influence of political donors. Keith said a
merit-based selection process can result in Supreme Courts “that are not
as predictable along political lines.”
Seven states use partisan elections to select their Supreme Court
justices while 14, including Wisconsin, use nonpartisan elections.
Meanwhile, nine task governors with appointing justices, two use
legislative appointments, four have hybrid models and 14 use a merit
selection process that often involves nonpartisan nominating
commissions.
Kansas is one of the states with an appointment process, a system that
has been in place for six decades and has been largely nonpartisan.
Bristling at some of the court's rulings in recent years, Republicans in
the state now want to change that and move toward a system in which
justices have to stand for election.
Opponents say Republicans' goal is clear in a GOP-leaning state:
remaking the court in a more conservative image.
When a vacancy on the seven-member court now occurs, applicants for the
seat are screened by a nine-member commission. Five are lawyers elected
by other lawyers and four are nonlawyers appointed by the governor. The
commission names three finalists and the governor — currently a Democrat
— chooses one.
The Republican-supermajority Legislature placed a proposed amendment to
the Kansas Constitution on the ballot for the state’s August 2026
primary election, rejecting arguments that the current system of filling
vacancies on the state Supreme Court is notable for its lack of partisan
politics and promotes judicial independence.
Backers of the proposal have criticized the state’s top court for years
over rulings protecting abortion rights and forcing higher spending on
public schools. They argue that the court is too liberal and is out of
step with voters, even though Kansas voters opted to protect abortion
rights in 2022, just months after the U.S. Supreme Court overturned Roe
v Wade.
Republicans also say that in making Supreme Court candidates run for
election, any politics in the process would be visible instead of “a
black box.”
“It is an elitist system, and that elitist system was designed by
lawyers,” Kansas' attorney general, Republican Kris Kobach, said of the
current system. “It is obviously controlled by lawyers.”
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Protesters hold signs as people arrive for a town hall with Elon
Musk, Sunday, March 30, 2025, in Green Bay, Wis. (AP Photo/Jeffrey
Phelps)
Critics of the Kansas proposal pointed to Wisconsin and the tens of
millions of dollars spent on state Supreme Court races in recent
years. They say that's just what Kansas should expect to see if
voters approve the change next year.
With the current system, they say a candidate’s experience and
likely judicial temperament are the most important factors, rather
than a candidate’s skills at campaigning, raising money or creating
television ads.
“There is a reason that goes beyond giving the people a voice.
There’s a political reason to change the court,” Bob Beatty, a
political science professor at Washburn University in Topeka, said
of Republicans' proposal.
Kansas Senate President Ty Masterson, a Wichita-area Republican,
said he wasn't concerned about Wisconsin-style campaigning for high
court seats if the amendment passes. He said opponents were “trying
to take a one-off and make it something it’s not.”
In Oklahoma, the Republican-led Legislature for several years has
considered legislation seeking to change its current appointment
system for appellate court justices to having them run for election.
Some Republicans have brought up the issue in Alaska in recent
years, though the efforts have not advanced.
In North Carolina and Ohio, Republican-dominated legislatures in
recent years have added party labels to the ballot in what many
legal experts say is an attempt to benefit conservative judicial
candidates and construct a court that aligned more with the
legislature’s policy goals.
North Carolina has been caught up in an ongoing legal saga over a
close, highly politicized state Supreme Court race. The Republican
candidate, Jefferson Griffin, has challenged more than 65,000
ballots cast in last fall's election. On Friday, the Republican
majority on a North Carolina appellate panel sided with Griffin, who
was 734 votes behind Associate Justice Allison Riggs, a Democrat who
is likely to appeal.
Pennsylvania is bracing for a Wisconsin-style election in the fall.
It's another presidential battleground where the state Supreme Court
could be called upon to decide election disputes during next year's
midterms or the 2028 presidential election. Three Democratic
justices are running to retain their seats and face a yes-or- no
vote for additional 10-year terms.
The recently concluded Wisconsin election offers warning signs of
what may come in November in Pennsylvania when Democrats’ 5-2
majority on the court will be on the line, said Christopher Borick,
director of the Muhlenberg College Institute of Public Opinion in
Allentown.
Spending exceeded $22 million in Pennsylvania’s 2023 Supreme Court
contest.
“It would be silly not to anticipate that in this current
environment in a key state like Pennsylvania," Borick said. "It is
going to be intensified.”
Making term limits longer and eliminating judicial reelections could
be a useful reform because “a lot of the influence of money comes
from the pressure to get reelected,” said Michael Kang, a
Northwestern School of Law professor and author of “Free to Judge:
The Power of Campaign Money in Judicial Elections.”
“There is no perfect system,” Kang said. “But there are things that
can be done to improve.”
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Associated Press writers Marc Levy in Harrisburg, Pennsylvania, and
Sean Murphy in Oklahoma City contributed to this report.
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