Ohio Primary Showcases New Era of Partisan Judicial Campaigns

Ohio primary voters who head to the polls Tuesday won’t struggle to comprehend where some judges and judicial candidates stand on hot-button issues.

Supreme Court candidate Colleen O’Donnell’s campaign website boasts how, as an immigration judge in Texas, she “never once granted asylum, and consistently ordered the removal of illegal aliens from our country.” Another candidate for a state appeals court seat has yard signs that say, “Jesus is my savior. Trump is my president.” And a Cleveland judge openly endorsed other Democratic candidates.

“It’s a new game,” the judge, Jeffrey D. Johnson of the Cleveland Municipal Court, said of the endorsements. “Not everybody’s going to play it, but it’s a new game in town, no doubt.”

While Ohio has long chosen judicial candidates in party primaries, the increased politicization of some races, including in primaries, is in line with a change Republican legislators made in 2021 to turn what were nonpartisan appeals courts and state Supreme Court general elections into partisan ones. The state’s justices have also indicated that certain rules judges and judicial candidates must adhere to regarding expressing their views have First Amendment problems.

Ohio’s partisanship is the latest in what scholars see as a trend in regions with judicial elections, growing after a record-breaking 2023 Wisconsin Supreme Court battle turbocharged a new partisan era in states like North Carolina and Pennsylvania, where millions of dollars flowed into high court elections.

“What we’re seeing is a lot of pressure on judges to win elections by doing things they didn’t use to have to do,” Indiana University law professor Charles Gardner Geyh said.

While some candidates say the shift to more partisanship in elections encourages transparency, others fear it risks a further negative public perception about fairness in the courts.

“I don’t know that loosening up the rules for judges to act like partisan candidates is going to do a lot for confidence in the judiciary,” said Ohio Supreme Court Justice Jennifer Brunner, the court’s lone Democrat who’s fighting for a second term and has a pending lawsuit over the state’s party-affiliation law.

Courtesy of Ohio Court of Appeals, Seventh District Judge Mark Hanni

Loosening Rules

Ballots with appeals court and Supreme Court races have had party affiliations since 2022, which helped usher in a major change in the tenor of races; no Democrat has won a state Supreme Court race since then.

But some candidates say Supreme Court-driven changes in the past six months have shifted the landscape even more.

In November, the court said in a judicial discipline opinion that barring judges from voluntarily testifying at a legislative hearing, save for limited circumstances, was unconstitutional. The justices also declined to enforce other rules against the judge pertaining to “core political speech.”

In February, the court reiterated in ethics rules that “a judge or judicial candidate maintains their constitutional protections and may express views in a non-adjudicative capacity regarding issues or beliefs.”

Then, in an April 2 ruling in another judicial discipline case, the court said a restriction on judges endorsing or opposing candidates was unconstitutional.

Johnson, whose seat isn’t up in the current election cycle, has publicly backed two candidates and plans to endorse a third before Tuesday.

Not every judge or judicial candidate will have “the stomach for it or skill to get through it,” noted Johnson, who said he isn’t new to politicking since he formerly served in the state senate and Cleveland City Council.

‘On the Frontiers’

While the US Supreme Court said more than 20 years ago that forbidding judicial candidates from expressing their views on issues violated free-speech rights, some candidates say the Ohio high court’s posture forged uncharted territory.

“We’re still sort of on the frontiers of this, so I think the nuances are yet to be worked out,” Ohio Court of Appeals, Fifth District Presiding Judge Andrew J. King said in an interview.

King is vying for the Republican nomination for one of two state Supreme Court seats up this year. A video he posted Monday on his campaign’s Facebook page described him as “the pro-Trump constitutional conservative,” and his website touts his support for gun rights.

All of this is valuable for the electorate, King said, as “it’s giving voters information they want to make a decision about the judicial candidate.”

Seventh District appeals court Judge Mark A. Hanni (R), who’s seeking another spot on the Youngstown-area bench to extend his time past age 70, agreed. He’s behind the Trump- and Jesus-invoking signs, and a flier on his Facebook page lists his support for “Christian values,” “drilling, fracking, and coal mining,” and “parental rights in education.”

All of this is being done, at least in part, because he’s “running against a Republican” in the primary, Hanni said.

Confidence in Judiciary

Not everybody agrees with the new campaigning paradigm.

Justice Patrick F. Fischer (R) dissented from the ruling that did away with enforcing restrictions on endorsements, writing they don’t violate the First Amendment and that participation in another candidate’s campaign may cause the public to “lose faith in the judiciary’s ability to abide by the law and not make decisions along political lines.”

But Ryan Stubenrauch, a Republican political consultant, said that “we tried to pretend judges are completely apolitical and everybody knows that is not true.”

The further politicization of Ohio’s judicial elections echoes Wisconsin. In 2023, the Democrat-backed candidate for that state’s supreme court touted her support for abortion rights, said Wisconsin’s political districts were “rigged” for Republicans, and expressed concern about certain voting requirements.

“We’re seeing a new kind of politics in which judges are becoming almost indistinguishable from other politicians,” Geyh said.

Regardless, the judges and candidates possibly at the forefront of a new type of campaigning feel more change is coming.

The public, Johnson said, “is going to have to adjust to that new reality.”