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Millions Poured into State High Court Races Gain Parties Little

Nov. 9, 2022, 6:54 PM

Republicans’ flipping North Carolina’s Supreme Court stood out in midterm elections in which the two parties mostly stalemated despite titanic spending on state high court races.

The political parties and their affiliated groups poured more than $63 million into TV and internet advertising campaigns bashing the other side’s candidates in 11 states’ high court races.

The heightened interest on state court races was a recognition of the new importance of state judiciaries in the wake of the US Supreme Court’s Dobbs decision overturning a federal right to an abortion. State judges can now lead on abortion policy and related topics like LGBTQ rights for the foreseeable future.

Decisions in these courts “talk to all aspects of our lives,” Suzanne Almeida, director of state operations at Common Cause, said at news conference Wednesday. “The increased nastiness and focus and money spent on state court elections means folks are waking up to the importance of state courts.”

The only real power shifts came in North Carolina and in Ohio where a retiring moderate Republican justice was replaced by a more conservative Republican.

“The groups trying to flip courts this year seem not to have really succeeded,” said Douglas Keith, counsel in the Brennan Center for Justice’s judiciary program. “All of this money came because there’s a recognition of how important these courts are and how important they’re going to be now that the US Supreme Court is leaving a lot of decisions to the states.”

“The groups that spent six or seven figures in state court elections, they’re not going to walk away from these cases,” he added, noting big investments from conservative groups Fair Courts America and the Republican State Leadership Committee.

Republicans saw the night as a win in their battle with Democrats to draw favorable congressional lines because of the GOP victories in Ohio and North Carolina.

“Republican wins in the Tarheel State and Buckeye State ensure that the redistricting fights ahead in those states within the next decade are ruled on by strong conservatives who will follow the Constitution and don’t believe it’s their role to draw maps from the bench,” Republican State Leadership Committee Judicial Fairness Initiative President Dee Duncan said in a statement.

North Carolina Flips

The two highest-spending campaigns were in Illinois and North Carolina where Republicans had a chance to wrest control from Democrats.

They succeeded in North Carolina, which will give the state Legislature the opportunity to redraw GOP-favoring lines for the state’s 14 congressional districts. The victory also gives the state’s business community hope it will be better protected when claims of liability for corporate wrongdoing come before the court.

Ray Starling, general counsel for the North Carolina Chamber and president of the North Carolina Chamber Legal Institute, said the chamber has seen the state Supreme Court expand corporate liability in recent years in a way that’s concerning.

The North Carolina Chamber partnered with the US Chamber Institute for Legal Reform on a $1.3 million investment on TV ads in the Charlotte media market in support of both Republican candidates Richard Dietz and Curtis “Trey” Allen.

With Dietz and Allen on the court, Starling said the liability and the policy environment in North Carolina will be more predictable. The chamber is closely watching disputes over state tax credits for solar facilities, which Starling said could reach the state’s high court

The chamber’s involvement in these judicial races shows that entities now view the courts as an important forum to advance their policy priorities.

“As painful as it is to say, some folks have figured out litigating is easier than lawmaking,” Starling said.

Unlike lawmakers, judges can’t be lobbied, he said. “Really the only way you can participate are amicus briefs and then, of course, trying to have some influence in who sits on the court.”

Illinois Status Quo

In Illinois, the business community was also hoping Republicans could flip the court, but Democrats held on.

Illinois businesses looked forward to the prospect of a GOP-controlled court—something that hasn’t happened in Illinois for 50 years. A Republican-majority court might have been able to reduce some of the expense and uncertainty businesses face when plaintiffs sue them in Illinois courts , said Clark Kaericher, the Illinois Chamber of Commerce vice president of government affairs.

“It’s going to be another same old, same old, and it’s going to send the message to business owners to be wary about moving to Illinois,” he said.

The two states with the next highest spending on court races, Ohio and Michigan, saw their compositions stay mostly the same.

The Michigan high court retained its 4-3 Democratic majority, and the Ohio Supreme Court remains 4-3 Republican.

Both courts are likely to make important decisions on abortion in the coming years. Michigan’s high court is considering a challenge to the state’s 1931 abortion ban. A challenge to Ohio’s “heartbeat ban"—a prohibition on abortion upon detection of fetal heart activity—is working its way up from state trial court in Cincinnati.

Abortion in Other States

Abortion policy is sure to be impacted by the stalemates in states further west.

In Kansas, all six justices vying to retain their court spots won, preserving a majority that ruled in the past that there’s a state constitutional right to an abortion. In an August primary, Kansas voters preserved this ruling when they voted down an anti-abortion ballot measure.

In Kentucky, preliminary results show that an anti-abortion state legislator is losing his bid for the state Supreme Court. That court is set to hold a hearing on a challenge to the state’s near-total abortion ban next week, and the current liberal-leaning court could invalidate it. Kentucky voters on Tuesday also rejected an anti-abortion ballot measure.

Montana, like Kansas, has a standing state court ruling that provides a right to abortion. GOP efforts to unseat an incumbent with a more conservative justice appear to be failing based on unofficial results thus far.

“Abortion was made front and center in state elections by groups on the left,” Keith said. “We’re going to see these election results impact abortion access.”

To contact the reporters on this story: Alex Ebert in Madison, Wisconsin at aebert@bloomberglaw.com; Lydia Wheeler in Washington at lwheeler@bloomberglaw.com

To contact the editor responsible for this story: Fawn Johnson at fjohnson@bloombergindustry.com