State lawmakers last year passed over 300 new laws that reshaped how Americans vote and who counts their votes, including ones that imposed new restrictions and legal penalties on election administrators.
But local election officials aren’t the only target of those laws. Republican-controlled legislatures also considered and passed dozens of bills aiming at the little-known but increasingly powerful state supreme court judges charged with upholding Americans’ constitutional rights.
Legislative efforts to politicize state judiciaries are moving full steam ahead in 2022. Spurred by the highly contentious redistricting cycle, some state lawmakers have openly considered impeaching state supreme court justices who strike down Republican-drawn congressional maps.
“Clashes between branches [of government] are to be expected, that in and of itself is not troubling,” Douglas Keith, counsel in the democracy program at the Brennan Center for Justice, told Insider.
“What’s particularly troubling is that the legislatures don’t just want to clash with the courts. They are using both elections, and these changes to the law, to try and make the courts an extension of the legislative branch,” he said.
A December 2021 analysis from the Brennan Center for Justice found that in 2021, lawmakers in 35 states considered over 153 bills that politicize state courts or limit the authority of state judiciaries, especially over contentious issues like elections, abortion, and guns.
In 2021, 14 primarily Republican-controlled states passed 19 laws that curtail state courts’ ability to limit or strike down state laws, politicize judicial selection by changing how state judges are selected, and make it easier for judges to be targeted for their decisions, according to the Brennan Center’s analysis.
“The types of attacks that we see take aim at the way that judges are selected and try to limit courts’ authority over certain issues,” said Patrick Berry, counsel at the Brennan Center and co-author of the report. “What made 2021 unique were the bills introduced that would limit state courts’ authority’ in cases related to elections.”
Georgia, for example, limited judges’ ability to extend polling place hours. Omnibus bills passed in Kansas, Kentucky, and Texas included provisions barring judges from altering or striking down election laws. Six other states passed laws changing how judges are selected or how judges hear cases against state governments, possibly impacting the fates of election and redistricting cases.
“I think that a lot of states are starting to contend with how they want to elect or nominate their judges,” Adam Kincaid, president of the National Republican Redistricting Trust, told Insider, pointing to Ohio and North Carolina making state supreme court elections more partisan in recent years.
And in 2022, other states like Kansas are considering overhauling how they pick judges.
“These sorts of changes are things that you will see more of over the next few years,” Kincaid said. “The next real election battlefield out there is the state supreme courts and state judicial races.”
North Carolina established a ‘playbook’ for manipulating state judiciaries
Democrats have fared much better than expected in the ongoing redistricting cycle due to holding control of several key state supreme court seats. Their success has supercharged a two-pronged effort by Republicans to change the way judges are selected to the bench at the state level while seeking to erode the power of state courts at the federal level.
Republican litigators are also pursuing a legal strategy to undercut state courts by advancing a once-fringe legal theory known as the independent state legislature doctrine in federal court.
The theory, which posits that only state legislatures have constitutional authority over election laws and redistricting, threatens the validity of independent redistricting commissions and could strip state supreme courts of the ability to strike down political maps.
Redistricting lawsuits out of Pennsylvania and North Carolina could provide an attractive vehicle for conservatives on the US Supreme Court to formally codify the independent state legislature theory, raising alarm bells for voting rights advocates.
“There are looming legal strategies that could completely abandon the fair result that the courts have created in this cycle,” said Gaby Goldstein, co-founder of Sister District, a group that supports Democrats in state legislatures.
“It is an election subversion tactic for Republican legislatures to go after their state Supreme Courts in this way,” Goldstein said. “And it dovetails nicely with their promotion of these controversial constitutional theories that would eliminate the state supreme court’s ability to do anything anyway.”
North Carolina’s legislature has been perhaps the prime breeding ground for partisan meddling and attacks on state courts.
“There was an effort over five years where the Republican legislature tried everything they could to take over the state courts and they did that to protect their gerrymandered election districts,” said Billy Corriher, author of “Usurpers: How Voters Stopped the GOP Takeover of North Carolina’s Courts.”
The state legislature eliminated public financing for judicial elections, made supreme court elections partisan, redrew lower court judicial election districts to be more favorable to Republicans, tried to effectively cancel the 2016 state supreme court elections and successfully canceled the 2018 primary, and tried to give the state legislature and governor power to fill judicial vacancies.
Four years ago, North Carolina voters rebuked their legislature by rejecting constitutional amendments that would have given the legislature more authority to appoint judges and election officials and replacing Republican Justice Barbara Jackson with Democrat Anita Earls, a civil rights lawyer.
“In 2018 especially, which was the pinnacle of all the attacks on the court, people said, ‘Enough is enough,'” Melissa Price Kromm, executive director of North Carolina Voters for Clean Elections, told Insider. “I think those attacks backfired.”
But now, those tactics have spread to other states.
“Unfortunately, I think we’re going to continue to see a lot of these power grabs popping up,” Corriher said. “North Carolina has created a playbook for a lot of Republican legislators and other states.”
Wisconsin lawmakers followed North Carolina’s lead in eliminating public funding for judicial elections. Other states too have considered making elections partisan or changing how they select judges.
In Kansas, Senate President Ty Masterson has proposed eliminating Kansas’ nonpartisan merit appointment system for state supreme court justices and replacing it with direct partisan elections or a selection process modeled after the method of nominating federal judges.
“The push for the federal model failed by a single vote in the Senate via the constitutional amendment, but that doesn’t mean that it’s over,” Davis Hammett, an activist with Kansas voter engagement group Loud Light, told Insider. “We could still push this until the legislature adjourns for the year — this could come up at any point and it could even come up in a special session.”
In Pennsylvania, lawmakers threatened to impeach justices on the Democratic-controlled state supreme court over their decisions in redistricting cases in 2018.
More recently, Republicans have floated changes that include term limits for justices and a constitutional amendment to elect the seven justices on the high court by judicial districts instead of statewide, which could advantage Republicans in the competitive battleground state.
“It’s absolutely a real threat. A lot of people are very worried about whether Republicans will make this push to gerrymander the judiciary,” Adam Bonin, a Philadelphia-based election attorney, told Insider. “They can very easily draw themselves a four to three Republican map and even possibly a five to two map. That’s scary.”
High-stakes redistricting rulings have spurred impeachment threats
Ohio’s first redistricting process under two relatively new anti-gerrymandering constitutional amendments has been derailed by partisanship and dysfunction, leaving the state supreme court to clean up the mess — and putting individual justices in the hot seat.
Republican Chief Justice Maureen O’Connor, who is facing mandatory retirement in 2022, has joined with the state supreme court’s three Democratic justices in striking down several sets of congressional and state legislative maps for unfairly favoring Republicans. Several Republican state lawmakers have threatened to impeach her over it.
—Rep. Scott Wiggam (@Scott_Wiggam) March 17, 2022
“Even though it’s messy, the system, arguably, is functioning as it’s supposed to,” an Ohio Democratic campaign strategist told Insider. “For the response to that be to attack one of the pillars of the system, the judiciary, is so reckless, irresponsible, and dangerous.”
Even Republican Secretary of State Frank LaRose, hardly a partisan flamethrower, said he wouldn’t oppose the legislature impeaching O’Connor.
“The fact that these lawmakers are threatening impeachment is just absurd on so many different levels, and there’s no way that they’re going to succeed,” the Ohio Democratic strategist said. “It’s a dead political loser for them to go after a person and attack the courts.”
Impeachment may be unlikely, but O’Connor’s role as the swing vote in crucial redistricting cases ensures a highly competitive race between Democratic Justice Jennifer Brunner and Republican Justice Sharon Kennedy to replace O’Connor as chief justice.
“It furthers the point of making sure you have strong conservative judges who follow the Constitution and the law as written, and don’t believe it’s their job to draw maps from the bench,” said Andrew Romeo, spokesman for the Republican State Leadership Committee, which is one of the top national spenders in state supreme court elections.
“That’s what we believe judges should be doing, and that’s who we’ll be supporting,” he said.
In North Carolina, former state Republican Party chair Dallas Woodhouse also floated the prospect of the state legislature impeaching Democratic justices in North Carolina before later downplaying the possibility.
“It’s telling that the decisions legislators think are unacceptable to the point where they start issuing these impeachment threats are decisions about redistricting,” Keith said. “They’re not about something else, they’re about decisions that affect the legislators’ own power. That’s what seems to really hit too close to home for them.”
Price Kromm slammed impeachment threats as an attempt to “bully” justices into toeing the party line, calling it “completely over the line to be having conversations about impeaching judges for decisions.”
A decade of high-stakes redistricting litigation lies on the horizon — and with it, a decade of escalating attempts by lawmakers to meddle with state judiciaries to further entrench their partisan gains.
“Generally, these sorts of efforts are essentially telling state court judges that, you either fall in line and rule in our favor, or you risk getting kicked off the bench,” Keith said. “And that’s just incredibly dangerous.”
This is part three of Insider’s three-part series on state supreme courts. Read part one and part two here.
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