This article was produced as a collaboration between Bolts and NC Policy Watch.

They packed the courtroom early, filling so many seats that a line stretched out the door of the building in downtown Raleigh that houses the North Carolina Supreme Court. In years past, many of the onlookers had been in handcuffs, jails and prison cells. Now, they wanted access to the ballot box. 

Those in line were told the courtroom was full shortly before oral arguments began. The overflow crowd walked down the street to First Baptist Church to watch the hearing streamed live in a basketball gym. Below the projection screen was a sign with a simple demand: “Unlock Our Vote.”

The state supreme court on Thursday held a hearing on whether North Carolinians should have the right to vote while on probation or parole. The case, CSI vs. Moore, is a challenge to North Carolina’s felony disenfranchisement law, which bars people from voting if they are incarcerated and if they are on some form of supervision over a felony conviction. 

Last year, a Superior Court in Wake County issued a landmark ruling in favor of the plaintiffs, effectively restoring the right to vote of 56,000 people in the run-up to the 2022 midterms.

The ruling kicked off a rush among civil rights organizers in North Carolina to tell those “second-chance voters” that they had regained their access to the ballot box, NC Policy Watch and Bolts reported in November. Some of them got to vote in November thanks to the ruling, which made North Carolina one of 24 states where anyone not incarcerated can vote.

But the 2022 midterms upended the political context in North Carolina by flipping the partisan majority of the state supreme court. Republicans picked up two seats, shifting the court to a 5-2 Republican majority and significantly diminishing the odds of major civil rights litigation like this lawsuit. 

The partisan shift loomed large at Thursday’s hearings. The two new Republican associate justices, Trey Allen and Richard Dietz, each signaled their skepticism toward the lower court ruling that expanded rights restoration. 

“The trial court seems to have imposed a remedy that’s beyond the authority of a court because the courts can’t grant the restoration of voting rights to felons,” said Allen. “The Constitution expressly provides that those rights can only be restored in the manner prescribed by law, and the authority to adopt such a law rests with the General Assembly, not with any court.”

“It seems that our constitutional doctrine is pretty clear, that in North Carolina, we don’t try to get into the minds of legislators,” said Dietz, pushing back against the idea that courts should remedy constitutional violations directly. “We declare something unconstitutional and then tell that other branch of government, ‘You need to try again. You enacted a law and it was unconstitutional. Enact one that is not unconstitutional.’”

Their GOP colleagues hinted that they largely shared this attitude. Should they rule to overturn the Superior Court, it could roll back last year’s voting rights expansion.

Kristie Puckett-Williams, an ACLU of North Carolina organizer and a field captain for Unlock Our Vote, said after the hearing that she thought the Republican justices seemed ready to uphold the state’s felony disenfranchisement law and overturn the lower court.

“The central debate is about who has the right to vote,” Puckett-Williams told Bolts and NC Policy Watch. And the justices during the hearing, she said, “foreshadowed that they are okay with us rolling back to a time in our history where poll taxes and literacy tests were common and standard.”

“I left feeling like they had an agenda.” she added.

Chris Shenton, a fellow at the Southern Coalition for Social Justice, a North Carolina-based organization that advocates for civil rights, said he couldn’t be sure what way the ruling would go. “I think the plaintiffs made a compelling argument that what was going on here is the same thing that happens with these statutes all over the country,” he said. “These laws were passed to disenfranchise Black voters in particular.”

It is not clear when the state supreme court will issue its ruling.

The supreme court is set to hear many other cases that touch on racial justice and civil rights this term. Next Wednesday the court will hear oral arguments in four separate cases involving alleged racial discrimination in jury selection, known as Batson violations. And, with the court’s rightward shift, many criminal justice advocates are concerned the high court will revert to its past practice and not find any Batson violations in cases that it hears.

Other voting rights issues could be at stake, too. Earlier this year, Republicans petitioned the supreme court to throw out last year’s opinions on a voter ID law and redistricting—written by the Democratic majority—and grant new hearings. In those cases, the majority had ruled against laws that, even if they appear race-neutral, have “profoundly discriminatory effects.”

The question at the core of Thursday’s hearing was whether North Carolina’s felony disenfranchisement statute should be struck down because it is racist.

The 65-page order, written last year by Superior Court Judges Lisa C. Bell and Keith O. Gregory, described felony disenfranchisement in North Carolina as a means by which white supremacists in North Carolina suppressed Black citizens’ political power, a tool that still disproportionately affects Black voters. The law, Gregory and Bell wrote, “continues to carry over and reflect the same racist goals that drove the original 19th century enactment.”

 In 2020, Black residents made up 22 percent of North Carolina’s voting-age population, but 45 percent of those disenfranchised because they were on parole or probation over a felony, according to a study conducted by The Sentencing Project. 

Pete Patterson, the attorney representing Republican legislators, argued in Thursday’s hearing that the felony disenfranchisement statute was race-neutral. 

The 1840 law that excluded people from the franchise if they had a felony conviction “couldn’t have been motivated by racial discrimination,” he said, since this occurred before Black people were allowed to vote in North Carolina.

The legislature in the 1970s relaxed those restrictions, restoring the voting rights of individuals convicted of felonies so long as they completed their terms of probation or parole, a reform Patterson called a “signature achievement of the Civil Rights Movement.” 

Stanton Jones, an attorney for the plaintiffs, defended the Superior Court’s findings. The statute in question might not explicitly mention race, he said, but it still disproportionately affects Black North Carolinians, given disparate outcomes in the criminal justice system involving people of color.

“It is intentionally designed to discriminate against African Americans, the trial court found,” Jones said. “This specific, intentional racial discrimination here was disenfranchising the class of voters, people who have felony convictions but are not incarcerated and living in the community. That was the racist design going back to 1877.”

Jones denounced the argument, made before the trial court, that the law is race-neutral since it treats Black and white residents who have felony convictions in the same manner. “That rationale would justify a poll tax or a literacy test,” Jones said. “A literacy test disenfranchises 100 percent of white people and Black people who can’t pass the literacy tests.”

Another core argument for Patterson was that the plaintiffs’ case is moot because the North Carolina constitution explicitly authorizes felony disenfranchisement—a point that at least one of the new GOP justices seemed to agree with. 

“This court would be creating tension if it says that felons have a fundamental right to vote, because there’s a provision in the constitution that says explicitly that they do not,” Patterson said.

Pointing to Article VI of the state constitution, he said people convicted of felonies did not have the right to vote “unless and until their rights are restored in the manner provided by law.”

Jones rebutted Patterson’s take on Article VI, stating that it “does not give the legislature a special license to intentionally discriminate against African Americans.” The Article authorizes laws pertaining to disenfranchisement and re-enfranchisement, he said, but those laws must comply with another part of the constitution: the Equal Protection Clause. He was joined by Associate Justice Anita Earls, one of two Democrats on the high court, in mentioning the Equal Protection Clause, which has been used to support voting rights claims.

Allen, the new GOP justice, pushed back. “I think we all agree that means that felons don’t have the right to vote merely upon their release from prison or incarceration,” Allen said. “As I understand the constitutional provision, the default is no felon voting, except in the ‘manner prescribed by law.’ Where’s the law that prescribes that felons can vote, or may vote, simply upon being released from incarceration?” 

Associate Justice Phil Berger, Jr., echoed Allen’s point, evoking “a specific class of individuals, without regard to race, who have no right to vote under the constitution.” Berger is the son of the Senate’s Republican leader Phil Berger, who is among the defendants in this case. He declined to recuse himself.

But Daryl Atkinson, another attorney for the plaintiffs, echoed Jones’s appeal for the supreme court to protect North Carolinians’ fundamental rights. 

He stressed that barring people on supervision from voting has meant that people have had to pay off fines and fines, tying the right to vote to how much money someone has.

“Basically what’s undergirding opposing counsels’ arguments is that, people convicted of felonies, you can do any manner of things to them to discriminate against them, and it wouldn’t violate the constitution,” he said. “Your honor, that can’t be the way.” 

“Folks must still have some constitutional protections under the North Carolina constitution,” he added.

The video feed at First Baptist Church shut off as the justices stood, signaling that the court was in recess. The plaintiffs and their attorneys would soon join the overflow crowd at First Baptist for lunch. They would celebrate all that they had accomplished since the lawsuit began in 2019—even if their hard-fought gains may soon be lost.

Corey Purdie, the founder and director of Wash Away Unemployment, an organization that helps people released from prison transition to life in the free world, told NC Policy Watch and Bolts that those in the courtroom came bearing a message. 

“It’s showing that we care,” he said, “that people are present, that people are concerned, that people matter.”

The post North Carolina Supreme Court Signals It May Roll Back Voting Rights for Thousands appeared first on Bolts.

One hot afternoon in early October, Corey Purdie helped put the finishing touches on the exterior of the 300-square-foot house at Broad and Queen streets in New Bern, North Carolina. He touched up a corner of the building with white paint as other volunteers interrupted him to ask questions, say hello and point out that he was using the wrong paintbrush. Soon, an elderly man would move into the bright blue house, the first place he’d be able to call his own after spending more than eight years in prison and about three in a halfway house.

Purdie, the founder and director of Wash Away Unemployment, helps people released from prison transition to life in the free world by providing a set of “wraparound services.” Purdie and his organization connect the formerly incarcerated to education, housing and employment opportunities. They support people in reconnecting with their families, and assist in getting them mental health treatment.

Those amenities extend beyond essentials like a roof over somebody’s head or a job to pay their bills: It also includes registering people to vote. 

North Carolinians lose the right to vote when convicted of a felony, and until this election cycle they could not regain it until they had served all parts of their sentence, including probation, parole, and post-release supervision. But a ruling by the Superior Court earlier this year upended those rules. It allowed people to vote as soon as they leave prison, even while on probation or parole.

The ruling has “unlocked” the vote of more than 56,000 North Carolinians, who otherwise would have been barred from voting in the 2022 midterm. And it has set up a new stream of service for Purdie. 

“Not being able to vote and having that liberty taken away does something to the mental aspect of being able to have the confidence to move past any of the hurdles that they have in life,” Purdie said. “Being told ‘no’ or being told you’re not allowed to use your voice is one of the most traumatizing aspects that can happen in a person’s life. Almost like telling a child to shut up.”

“After a while, people lose hope,” Purdie said. “Our job is to restore hope in the vote.”

Purdie and others participating in the “Unlock Our Vote” movement—organizations like Black Voters Matter, the Community Success Initiative and the NC Justice Center—are registering and encouraging the newly re-enfranchised North Carolinians to vote, framing the court ruling as the largest expansion of voting rights in the state since the 1960s. [Note: NC Policy Watch is a project of the Justice Center.]

North Carolina is now one of 24 states where anyone not presently incarcerated has the right to vote. (Two of those also enable people to vote from prison, as does Washington, D.C.). The only people barred from voting in the state this fall are those who are in prison for a felony.

But this expansion of the franchise is precarious because an appeal of the Superior Court’s decision is pending before the North Carolina Supreme Court. Oral arguments won’t take place until the first quarter of 2023. Democrats currently enjoy a 4-3 majority on the high court, but the partisan make-up may flip in the November election, where voters will decide two seats; as a result, the Superior Court judges’ ruling could receive a more skeptical review.

Purdie thinks there is strength in numbers. The more people he and other plaintiffs in the lawsuit register, he believes, the trickier it would be for state courts to backtrack.

“It’s easier for the judges to make a decision to overturn something that affects 100 people versus something that affects 56,000,” he said. “If we registered 56,000 people, them judges are gonna think twice about overturning 56,000 people back to non-participating status.”

“I felt as if I was not a citizen”

It is not an easy or fast sell to convince someone to register. Purdie gets that. He spent eight years in prison starting when he was 16. It took him years to cast a ballot after getting out.

“I was so traumatized about it, and didn’t really think it mattered,” he said.

But in time he came to understand the power voting affords – the ability to put people in office willing to fight for his interests, “candidates who may be friendly to those that want to have a second opportunity at life.” When he finally voted in 2008, “it was traumatizing and liberating at the same time,” he says. “When I walked out, I said, ‘Man, I did it. I got a piece of myself back.’”

Purdie now talks to a lot of people getting out of prison who have things to do that seem more pressing: Getting a driver’s license and figuring out transportation. Finding a landlord willing to rent to them and an employer who wants to hire them. He also stresses why life is so difficult when they come home from prison: Elected officials pass laws that make it hard for people with a criminal record to find work or secure housing. And those officials can be voted out of office.

Central to Purdie and his peers’ efforts is the idea that people who have been disenfranchised are especially effective in convincing people of the importance of voting.

“We believe that people hear you different if they know you share their same story,” said Dennis Gaddy, the founder and executive director of Community Success Initiative and a plaintiff in the lawsuit that led to this year’s ruling. (The lawsuit was originally filed by Forward Justice in 2019 on behalf of organizations like Community Success Initiative, Justice Served, and the North Carolina chapter of the NAACP.)

Gaddy was disenfranchised for 13 years—seven and a half years on probation, and five and a half years in prison. He still couldn’t vote in 2008 when the country elected Barack Obama, its first Black president. For Gaddy, who is Black, this was a dehumanizing experience that clashed with the clear memories he has from childhood of riding through rural North Carolina with his mother, helping people register to vote by hand.

“I was always taught that my vote was my voice, and that we should all exercise our right as citizens to use our voice through the ballot,” Gaddy said in an affidavit in the lawsuit. “By not being able to use my voice in this way, I felt as if I was not a citizen.”

A legacy of racism

The history of felony disenfranchisement in North Carolina is rooted in racism. Much of the 65-page Superior Court ruling delves into the ways white supremacists used the criminal justice system as a means of taking away Black citizens’ right to vote beginning in the late 1860s.

In 1865, former plantation owners reeling from losing their enslaved workers were looking for labor to continue their farming operations, said Irving Joyner, a law professor at North Carolina Central University’s School of Law. Scores of formerly enslaved people were arrested on vagrancy charges and then forced to participate in a convict-labor system as part of their sentence.

Joyner sees a connection between the disenfranchisement of Black citizens in the 1860s because of vagrancy laws and the disproportionate number of Black citizens currently disenfranchised because they are on supervision for a felony.

“This is the end result of what started back in 1865 and continued up until it was more modernized, but still had these shackles on people to prevent them from being able to vote,” Joyner said.

North Carolina’s constitution forbade African Americans from voting between 1835 and 1868. It also disenfranchised “infamous” people, those convicted of crimes like treason, bribery or perjury, as well as those who received an “infamous punishment” like whipping.

North Carolina adopted a new constitution in 1868 as a condition of rejoining the union after the Civil War. It allowed all males to vote, got rid of property requirements for voting and abolished slavery. However, it still allowed for people to be disenfranchised if they were punished for their crimes by a whipping. The state amended the constitution in 1875, passing an array of measures to control and disempower African Americans. One of those amendments imposed a lifetime ban on voting for anyone convicted of a felony. 

Joyner said the initial purpose of felony disenfranchisement laws was to disenfranchise African American voters. After the Wilmington massacre of 1898, the state redoubled its efforts to dilute the voting power of Black residents through felony disenfranchisement, poll taxes, the “grandfather clause” and literacy tests to suppress the vote.

In the 1970s, lawmakers slightly loosened the disenfranchisement rules. They enabled people to regain their voting rights once they completed their sentence, including probation and parole terms—this is the status quo struck down earlier this year.

Still, Joyner said the modifications did not sever the system’s initial purpose: disenfranchising Black citizens. “It was borne with that intent,” he said. “It’s kind of like your name. Unless you change it, it stays with you forever.”

The Superior Court agreed earlier this year. “The legislature cannot purge through the mere passage of time an impermissibly racially discriminatory intent,” Judges Lisa C. Bell and Keith O. Gregory wrote in their opinion. The current felony disenfranchisement system “continues to carry over and reflect the same racist goals that drove the original 19th century enactment.”

According to a study by the Sentencing Project, 2.5 percent of Black adults in North Carolina were barred from voting during the 2020 presidential election due to a past criminal conviction, compared to 0.8 percent of the rest of the voting-age population.

This inequality also means that the Superior Court’s ruling disproportionately relieves Black people. Reports filed as part of the ongoing lawsuit state that Black people make up 42 percent of the pool of people whose vote was “unlocked” this year; only 22 percent of the voting age population in North Carolina is Black. There is not one single county in the state that has a higher rate of disenfranchisement for whites than for Blacks.

These numbers reflect the deep inequities in the state’s criminal legal system. Black people are arrested, charged, prosecuted, convicted, and serve longer sentences compared to whites, and therefore they are more greatly affected by laws that rely on convictions to block a citizen’s access to the ballot box.

Such widespread disenfranchisement goes beyond depriving individual people of their right to vote, said Theodore Shaw, a law professor at the University of North Carolina and the Director of the school’s Center for Civil Rights.

“The impact is not only personal, but it has a collective impact on Black and brown communities,” he said. Felony disenfranchisement represents “a continuing individual judgment about their worthiness and whether they have a place in the larger society.”

Kristie Puckett-Williams, an ACLU of North Carolina organizer and a field captain for Unlock Our Vote, was detained over drug charges in 2009 before agreeing to a guilty plea to avoid giving birth in jail. “The system racially profiled my addiction,” said Puckett-Williams, adding, “That the system was dysfunctional does not negate the harm that I caused.”

She could not vote during the 15 years she was on probation, but she took part in the first election in which she was able to. 

“Whether the state recognized my humanness or not, I recognized I was still a human,” she said.

“These people are going to be so tired of us”

In the campaign’s final stretch, North Carolina’s civil rights organizations are sounding the alarm that public authorities are not informing people of their new rights, or that some counties may be providing individuals with false information, for instance that they may need paperwork to vote. 

Disenfranchisement rules around the country are very confusing, and many individuals who are eligible choose to not head to the polls because they feel uncertain of their rights. Recent high-profile criminal prosecutions of people who made voting errors in Florida, Tennessee, and Texas, as well as North Carolina under the state’s old rules, have ratcheted up worries of intimidation. North Carolina’s new rules are comparatively straightforward, and advocates want the state to communicate that more aggressively.

In the meantime, these groups have taken it upon themselves to conduct extensive outreach.

“This ain’t about Ds or Rs because quite frankly I’ve enfranchised some folks who probably are diametrically opposed to my political viewpoint,” he said. “And you know what, that’s okay. Because I actually believe in democracy, that people should have a choice to be able to pick who they choose.”

David Bright, a 46-year-old white man who registered to vote when he was 18 and voted Republican his whole life, has not been able to vote for about a decade, ever since he was put on probation. 

He says he felt embarrassed and shied away from conversations with friends around election season. He couldn’t even vote for the school board that governs where his daughter gets her education, limiting his ability to not only vote for his own interests, but his children’s.

Bright was one of the people in New Bern who was working with Purdie on the tiny house in October. He wore a white “Unlock Our Vote” T-shirt and paint-speckled pants and shoes as he sat in the shade eating a sandwich during lunchtime. He had only recently heard about the Superior Court ruling, but he was happy to have the opportunity to vote again.

Being re-enfranchised lets him show the world that he’s not the same as he once was, he said. It telegraphs a message to everyone he had to tell he couldn’t cast a ballot: “We do change.”

Puckett-Williams sees her own organizing as a way to give back to a community that she hurt when she was in active addiction.

“Me showing up every day in the community doing what I can do is my way of atoning for the behaviors that I did in the past,” she said. “This is just one redemption, one reconciliation that I can make.” Through her voting and advocacy, she hopes that more elected officials will recognize that the formerly incarcerated are their constituents, too. 

“The conditions of incarceration that I and others have endured is a direct result of those who are in office,” she said. “The kind of justice you receive is based on who is in power.”

As much as disenfranchising someone revokes their ability to choose their government, it also implicitly acknowledges the power they would have if they enjoyed unrestricted access to the ballot. That’s what Diana Powell, executive director of Justice Served NC and a co-plaintiff in the lawsuit, says when she tries to register people who tell her they don’t see the point in voting.

“If our vote wasn’t so important,” she said, “why would they fight us so hard to silence our voice and take that right away?”

The post In North Carolina, a Rush to “Restore Hope in the Vote” in People with Felony Convictions appeared first on Bolts.

If the U.S. Supreme Court strikes down Roe vs. Wade, the right to access abortion will stay protected in Kansas—at least for now—because of a recent ruling by its state supreme court. The North Carolina Supreme Court struck down Republican gerrymanders earlier this year, producing fairer midterm maps. And last year, Washington State’s supreme court restricted sentences of life without parole for youth beyond what the U.S. Supreme Court has established. 

Judges grounded all of these decisions in their state constitutions. As conservatives flex their stronghold on the federal bench to unravel decades of constitutional protections, state courts can offer alternative paths for civil rights litigation. Inversely, some state courts are proving as zealously conservative as the U.S. Supreme Court, as when Louisiana’s high court effectively restricted the right to protest earlier this year.

The midterm elections are now poised to reshuffle many supreme courts. Voters will elect dozens of justices all around the country, expanding or restricting these courts’ viability as a counter-weight to federal judges.

These elections will decide many of the judges who will hear election law cases in 2024, when former President Donald Trump could once again push to overturn election results. They may also hear many more cases dealing with reproductive rights if the end of Roe makes each state responsible for determining the legality of abortion.

The stakes are most transparent in the four states where the partisan balance of their supreme courts is on the line this fall—Illinois, Michigan, North Carolina, and Ohio.

But the 2022 cycle could also shift jurisprudence across the country if the fragile balance of power is altered in some state supreme courts. In Arkansas, Montana, and New Mexico, for instance, conservative lawyers are running to push the bench further to the right. In Washington State, justices who have formed a narrow progressive bloc are up for re-election.

Most states with supreme court elections this year organize them as regular elections, namely races where multiple candidates face off against each other. Other states straddle a middle ground between appointed and elected judiciaries, with appointed judges facing so-called retention elections, which are up-and-down votes without challengers. It is exceedingly rare for justices to be ousted in retention elections—in fact, in some states this has never happened—though this is at least an avenue for major upheavals this fall in populous states such as Arizona, California, and Florida, if organizing on the left or right were to pick-up. 

This breakdown from Bolts walks you through each state’s supreme court elections, telling you who’s running at this stage and why the race could matter. 

As the year progresses, new resignations and vacancies could spark new judicial elections, or even cancel them. Ballotpedia’s database can keep you up-to-date.

States with regular supreme court elections

Alabama

A longtime election lawyer for Republicans, Greg Cook is now sowing doubt about the handling of the 2020 election and blaming other state supreme courts for allowing expanded voting options that year. These Trumpian concerns are a major reason he is running to replace a retiring Alabama justice this year, he says. In the May Republican primary, Cook defeated lower-court judge Debra Jones, who also tied herself to the former president, in the Republican primary. He will be favored against Democrat Anita Kelly in the November general election given the state’s politics.

In the state’s second supreme court election, Republican Justice Kelli Wise drew no challenger.

Arkansas

Arkansas’s supreme court elections are ostensibly nonpartisan—but in the May 24 elections, candidates with close ties to the GOP hope to push the court to the right. 

Justice Karen Baker faces Gunner DeLay, a lower-court judge and former Republican lawmaker. DeLay, besides touting his conservative politics, is using the old-school tactic of attacking Baker over a vote she took to vacate a murder conviction. (The court found in that case that a charge had been filed in the wrong jurisdiction.) And one of the two challengers to Justice Robin Wynne is the former executive director of the state Republican Party, Chris Carnahan. (A third justice, Rhonda Wood, is unopposed.)

Update (Sept. 26): Baker defeated DeLay on May 24, but Carnahan forced Wynne in a November runoff, Bolts reported.

Georgia 

On paper, the 2022 cycle had the potential to rock Georgia’s supreme court: Four seats, a majority of seats on the court, were meant to be on the ballot at once. But by the time the filing deadline passed, one of those four elections was canceled, and two incumbents recently appointed by Governor Brian Kemp had drawn no opponent. 

The reason: A “dystopian” loophole that allows Georgia officials to game the system by delaying elections at the last minute, pulling the rug out from under challengers late into a campaign—as state Republicans did in 2018. The gambit appears to be having a chilling effect on candidates’ willingness to jump in.  

As the state’s supreme court moves further to the right, at least on criminal justice issues, this legal loophole helps Republicans lock down a conservative bench as long as they have the governorship. The one justice who faces an opponent in the May election is Verda Colvin, against Veronica Brinson.

Idaho

Justices Robyn Brody and Colleen Zahn will each be unopposed as they seek a new term. 

Even though it is mostly made up of Republican appointees, this supreme court has protected progressives’ efforts to use direct democracy to circumvent the GOP-run state government. In 2019, it ruled against a conservative lawsuit seeking to invalidate a ballot initiative that expanded Medicaid; last summer, it struck down a Republican law that would have made it significantly harder to qualify an initiative on the ballot. Zahn just joined the court in the summer of 2021 and took part in neither of those decisions; Brody was part of the majority in the latter ruling.

Illinois

Partisan control of the Illinois supreme court could flip, and Republicans had to score an unlikely win just to get this far. A Democratic justice lost an up-or-down retention vote in 2020 and had to leave the court, which triggered an extra election to replace him this year. Two seats are on the ballot, and Republicans would seize control of the court—and with it the power to revisit the state’s Democratic gerrymanders, among other state issues like pension reform—if they win both.

Illinois justices are elected by district rather than statewide, which helps Republicans as neither of the two elections that will decide the court’s partisan balance involves any voter from heavily Democratic Cook County. (The state constitution gives Cook County three supreme court seats, and the rest of the state gets four.) Democrats redrew the judicial map last year for the first time since the 1960s; the 2nd district (Lake, Kane, McHenry, Kendall and DeKalb counties) and 3rd district (Bureau, DuPage, Grundy, Kankakee, Iroquois, LaSalle, Will counties) will decide the court’s balance. 

Separately, one Illinois justice from each party is facing a retention election. 

Kentucky

Joseph Fischer, a Republican lawmaker who has led the fight to pass abortion restrictions in the Kentucky legislature, is now running for a seat on the state supreme court. He is challenging Michelle Keller, a Democratic-appointed justice, in the sixth district, in northern Kentucky. That election is one of several that will decide this supreme court’s membership this year, since two justices are not seeking re-election in the second and fourth districts. Kentucky’s high court has been an active player in the battles between the Democratic governor and Republican legislature, for instance in its unanimous ruling last year reinstating a law that limited the governor’s public health emergency powers.

But the biggest fireworks in Kentucky’s judicial elections may be found in the very local election for the circuit court of Franklin County, a small jurisdiction that has outsized importance for civil rights and voting rights and has drawn the attention of U.S. Senator Mitch McConnell, as Bolts reported in February. 

Louisiana

The Louisiana Supreme Court issued a 6-1 ruling earlier this year that makes protesters guilty by association, threatening the right to protest. And conservatives’ stronghold on the court is sure to continue after 2022. The one justice due to face voters this year is John Weimer, who joined the majority in that ruling, and who represents the 6th judicial district, a large coastal area in the southeast of Louisiana. Weimer faced no opponent in his prior two elections in 2002 and 2012; the filing deadline for 2022 has not yet passed. 

Update (Sept. 26): No one filed to challenge Weimer by the filing deadline for the third consecutive cycle. Weimer has thereby secured another term.

Michigan

The 2022 elections will decide nothing less than who controls the state supreme court in one of the nation’s premier swing states during the 2024 presidential race. And since allies of Donald Trump who trot out his Big Lie are trying to take over the machinery of election administration in Michigan, this supreme court may come to play an exceptionally important role at that time. The court’s majority will also be critical on criminal justice issues given a new slate of party-line decisions this year.

Democrats currently enjoy a 4-3 majority on the court. One justice from each party faces voters this year (Richard Bernstein and Brian Zahra, respectively). Republicans need to win both seats to regain control of the court.

Minnesota

Natalie Hudson and Gordon Moore, who are both justices appointed by Democratic governors, are up for re-election this year. Minnesota’s supreme court elections appear as nonpartisan on the ballot, and incumbents have easily won all elections held over the last decade. 

Update (Sept. 26): No one filed to run against either Hudson or Moore.

Montana

Conservatives want more control over Montana’s judiciary, and they have tried (unsuccessfully so far) to change election rules. This year, they are taking aim at both supreme court justices on the ballot, Democratic-appointed Ingrid Gayle Gustafson and GOP-appointed James Rice. 

Gustafson in particular faces an opponent who enjoys strong support from the state’s Republican officials: Jim Brown, a former counsel for the state’s Republican Party, as well as for a group that took down the state’s election disclosure laws. (A lower-court judge, Mike McMahon, is running in this election as well.) Montana’s supreme court is now at the center of the state’s latest voting rights disputes, as it’s long been, adding special importance to this showdown.

Nevada

Incumbent judges frequently go unopposed, and that will be the case this year for Justice Ron Parraguirre. But what’s more surprising is that the retirement of Justice James Hardesty has also occasioned no contest: Linda Bell, a lower court judge who has worked as a federal public defender and as a local prosecutor, is the only candidate and will join the state’s highest court. 

New Mexico

New Mexico’s state supreme court, which is currently entirely made up of Democratic justices, is sure to keep its Democratic majority this fall. But Republicans could narrow their deficit; Justices Julie Vargas and Briana Zamora, both appointees of Governor Michelle Lujan Grisham, will face GOP challengers Thomas Montoya and Kerry Morris, respectively. 

In a letter touting his candidacy, Morris casts Montoya and himself as “conservative voices,” and frames his bid as an answer “to the power of George Soros and Zucker Bucks [in reference to Mark Zuckerberg] to control the elections in New Mexico.” As Bolts reported in March, some on the right are fomenting conspiracies tying election funding to Soros and Zuckerberg, both of whom are Jewish, often spuriously.

North Carolina

The math is simple but the stakes are high in North Carolina. Democratic justices hold four of seven Supreme Court seats but they must defend two this year. If a Republican flips just one of them, they would gain control of the court. 

Given the state’s recent history, a partisan flip would affect the outcome of major civil rights cases. In recent years, the Democratic-majority court has voted on party lines to struck down GOP gerrymanders expanded the scope of racial discrimination appeals in the criminal legal system. It is now considering the constitutionality of the state’s felony disenfranchisement statutes in a case that may restore voting rights to tens of thousands of North Carolinians.

Depending on the outcome, Democrats may rue the 2020 cycle, when Democratic Chief Justice Cheri Beasley lost her re-election race by just 401 votes.

North Dakota

Justice Daniel Crothers is running for a new 10-year term unopposed, just like the last two times he faced voters, now that the filing deadline has passed for anyone to challenge him.

Ohio

Ohio’s highest court struck down Republican gerrymanders on 4-3 votes this year, with the three Democratic justices who prevailed in 2018 and 2020 in the majority, joined by Republican Chief Justice Maureen O’Connor. 

But everything is now on the line in 2022. Three seats are on the ballot, and all are now held by Republican justices, so Democrats have a shot at grabbing a majority of the court. But the court could also shift to the right because O’Connor is barred from seeking re-election due to her age. This means that, if Republicans sweep the cycle’s three elections, and even if these would all be partisan holds, it would likely tip the balance toward them in future redistricting cases, and re-open the gerrymandering floodgates.

One twist: The only Democrat running for O’Connor’s chief justice seat is Jennifer Brunner, who is already a justice on the court. Were she to win and flip that seat for Democrats, Ohio’s Republican governor would likely get to appoint Brunner’s successor. In other words, Democrats must flip one of the other two seats—ousting either Pat Fischer or Pat DeWine, the son of the state’s governor—to be sure to seize a court majority. 

Oregon

Governor Kate Brown appointed Roger DeHoog, a lower-court judge with past experience as a public defender, to the state Supreme Court in January. The appointment was noteworthy given the dearth of justices who have worked as public defenders in state supreme courts.

DeHoog is now seeking a full 6-year term—and he is sure to win, since no one filed to challenge him.

Texas

Conservative “stop the steal” activists fell short in their effort to oust a Republican judge in the March primary; they were angry at Scott Walker’s vote late last year to limit the attorney general’s efforts to investigate voter fraud. Now, it’s time for the general election. All 18 judges across the state’s two high courts are Republican, and five of them (including Walker) will face Democratic challengers in November. 

Democrats will have their work cut out for them: They haven’t won a statewide election in the state since 1994, and all the seats on the 2022 ballot (three on the Court of Criminal Appeals, which handles criminal cases, and three on the Supreme Court) feature a GOP incumbent. Of note: Two of the Democratic challengers, Erin Nowell and Amanda Reichek, are lower-court judges who beat Republican incumbents in 2018.

Washington

Washington’s supreme court has grown more progressive and diverse with Governor Jay Inslee’s appointments, with major ramifications for criminal justice. Last year, the court issued landmark rulings that expanded restrictions on life sentences, and that struck down state statutes that criminalized drug possession. (State Democrats then passed a law that makes drug possession a misdemeanor; it was a felony before the court’s ruling.) Both rulings were 5-4, a sign of the importance of court membership even in reliably Democratic-states.

Two of the justices in this emerging progressive majority, Mary Yu and Helen Whitener, have to face voters to secure new terms this year, as does a third incumbent, Barbara Madsen.

Incumbent justices seeking re-election in Washington have won very easily in recent cycles; the elections appear on the ballot as non-partisan.

Update (Sept. 26): None of the three justices who are seeking a new term this year will face an opponent on the ballot.

States that only have retention elections this year

Alaska

Daniel Winfree, the only sitting justice appointed by former Governor Sarah Palin, is technically up for retention this year, but he is set to hit the mandatory retirement age early next year anyway. Whomever is elected governor this fall will appoint Winfree’s replacement, and at least one other justice, and candidates are connecting the dots to future of abortion rights.

Arizona

Bill Montgomery built a punitive record as prosecutor of Arizona’s Maricopa County until he was nominated to the state supreme court in 2019 by the Republican governor. This year, he faces his first retention election, alongside other Republican-nominated justices. The political context is explosive: The GOP expanded the court’s size and changed the appointment procedure last decade to solidify conservative power.

On paper, all of this could all add up to a major showdown—if it weren’t so exceedingly rare for Arizona judges to fail retention elections. When voters ousted a county judge in 2014, it was the first time an Arizona judge had lost a retention election in decades. And it has not happened since.

California 

It would mark a significant break with recent history if California’s retention elections proved contentious this year. No justice has so much as dipped below two-thirds of the vote in the last two midterm cycles. Still, four justices are up for retention this year—one appointed by Arnold Schwarzenegger, another by Jerry Brown, and two by Gavin Newsom.

Progressives looking to affect the court have focused their efforts on pressuring Governor Gavin Newsom to appoint a justice with background as a public defender, which has not happened in decades in this state. But both of Newsom’s appointments have prosecutorial experience instead. 

Florida

Five of the seven justices on Florida’s supreme court are up for retention this year, including two appointed by Republican Governor Ron DeSantis. On paper, then, Democrats have a path to reverse the court’s dramatic rightward shift; also on paper, the right could push its advantage since one of the justices on the ballot, Jorge Labarga, is part of the court’s shrinking left flank.

But in practice, it would be an immense undertaking to convince the electorate to fire a justice. No judge has ever lost a retention election in Florida. 

And regardless of the ballot box, conservatives are likely to further solidify their hold on this court since Alan Lawson (one of the court’s less conservative justices) recently announced he would retire over the summer, granting DeSantis yet another appointment.

Indiana

Justice Steven David was meant to face a retention election in 2022, but he indicated instead that he would retire at the end of the year, so Indiana will host no supreme court race this year. Republican Governor Eric Holcomb will choose David’s replacement in the coming months.

Iowa

Not long ago, Iowa’s supreme court leaned liberal, as it issued a landmark ruling on same-sex marriage in 2009 and considered other progressive lawsuits. But the court has swung to the right alongside the rest of the state because conservatives ousted three justices in the 2010 cycle, and later Republican governors got to appoint many judges. The 2022 ballot features retention elections for two of GOP Governor Kim Reynolds’s appointees, Dana Oxley and Matthew McDermott, who long worked as a lawyer for Republican politicians.

Kansas

The Kansas Supreme Court ruled in 2019 that the state constitution protects access to abortion. That landmark decision, which drew just one dissenter, was the latest in a string of decisions on reproductive rights. Those battles bled into the electoral realm in 2016, when conservative groups led by Kansas for Life targeted a group of justices. But all incumbents prevailed that year by margins no smaller than 10 percentage points.  

This year, six of seven Kansas justices (three of whom joined the court after that 2019 ruling) are on the ballot in retention elections.

Conservatives are seeking another route this year to overturn the court’s rulings on reproductive rights: Kansans will vote on a constitutional amendment on August 2 that would affirm there is no right to an abortion in the state constitution, effectively overturning the court’s 2019 ruling. (If the referendum fails, though, the court’s composition will remain paramount for this issue.)

Redistricting is also on the menu: By the time these retention elections come around, the Kansas supreme court will have settled the uncertain fate of the state’s GOP gerrymander.

Maryland 

Five of the court’s seven judges have been appointed by Republican Governor Larry Hogan and confirmed by the Democratic-controlled state Senate. Hogan’s first four appointees easily cleared their retention elections in past cycles, receiving at least 75 percent of the vote. The fifth, Steven Gould, faces voters this year.

Missouri 

Two judges face voters in retention elections this year: longtime incumbent Zel Fischer, and the recently appointed Robin Ransom. Retention elections have been uneventful in Missouri’s recent history; no judge has received less than 63 percent of the vote over the past ten years, and often they win with even higher margins.

Nebraska 

Nebraskans have overwhelmingly voted to retain their supreme court justices ever since a successful campaign in 1996 to oust David Lanphier over some of his rulings, including one that gave dozens of people incarcerated over murder convictions the opportunity for new trials. There is no indication so far that this year will be any different, with four justices up for retention if they choose to seek new terms.

Oklahoma

Oklahoma’s supreme court judges have never lost a retention election, according to The Oklahoman, despite the court’s history of high-profile decisions. There’s no reason so far to suspect that 2022 will wield a different result. Up for retention this year: Two longstanding justices who have already won two retention elections, alongside two newly appointed judges.

South Dakota

In November, South Dakota’s Supreme Court struck down a voter-approved initiative that legalized marijuana. The decision could become a campaign issue, considering two of the four justices who issued that ruling are facing voters in a retention election this year.

Tennessee 

Tennessee’s Supreme Court has already shifted rightward in 2022: In January, Governor Bill Lee appointed Sarah Campbell, a conservative jurist and former clerk for Samuel Alito, to replace one of the court’s only two Democratic-appointed justices, who passed away in the fall. 

As recently as 2014, a majority of justices were appointees of a Democratic governor. That year, conservatives launched a major offensive to oust them, but all incumbents prevailed that year by double-digits. Republicans have controlled the governor’s mansion since 2011, though, and they have been able to change the court’s composition through appointments.

The only remaining Democratic-appointed justice, Sharon Lee, is up for retention this year, as is Campbell and other justices. 

Utah

Utah justices facing retention elections over the past decade have all won with at least 75 percent of the vote, which bodes well for Justice Paige Petersen in her retention election this year. The bigger upheaval this year is that GOP Governor Spencer Cox gets to fill two vacancies, including one triggered by the retirement of Thomas Lee, brother of U.S. Senator Mike Lee.

The post Your State-by-State Guide to the 2022 Supreme Court Elections appeared first on Bolts.

Five supreme court seats are up for grabs this year across North Carolina and Ohio, and the results may once again open the gerrymandering floodgates in both states.

The rulings that struck down GOP gerrymanders in each state hang on narrow 4-3 majorities that are now highly vulnerable to flipping. To preserve the status quo, Democrats must sweep both seats on North Carolina’s ballot. In Ohio, they must win at least one of three races, possibly two. Republicans are jumping on the opportunity, in what is shaping to be a favorable cycle for them.

“We must focus on battleground state Supreme Court elections because so many redistricting fights are won and lost there,” former New Jersey Governor Chris Christie tweeted on Feb. 26, specifically naming North Carolina and Ohio. Christie is the co-chair of the National Republican Redistricting Trust, a group that aims to maximize the GOP’s redistricting advantage this decade.

Dee Duncan, the president of the Republican State Leadership Committee (RSLC), a national group that aims to win state-level elections, said the RSLC would be “spending more on state court races in 2022 than ever before.” The RSLC spent more than $5 million on judicial races in 2019 and 2020 alone, according to a recent report by the Brennan Center for Justice.

Democratic groups like the National Democratic Redistricting Foundation have also contributed money in judicial elections in recent years. But so far in Ohio, the GOP is far more mobilized. The three Republican candidates for the state’s high court have raised more than $1.1 million combined as of January, compared to the three Democrats raising under $190,000, six times less. The numbers were more equal in North Carolina, with a slight advantage for the Democratic candidates as of the end of 2021.

David Pepper, the former head of the Ohio Democratic Party, told Bolts that he thinks national Democratic leaders “should go all in to win these supreme court races.” 

During Pepper’s tenure as party head between 2015 and 2020, Ohio Democrats flipped three supreme court seats, and redistricting played a major role in their messaging. When Democrat Jennifer Brunner won a supreme court election in 2020, her campaign sent her supporters an email with the subject line, “It’s official – we broke gerrymandering in Ohio.”

Those wins gave Democrats three of the court’s seven seats. Republican Chief Justice Maureen O’Connor, who had signaled her distaste for gerrymandering ten years ago, joined them in a string of rulings this year to make up a fragile majority that struck down the GOP-drawn maps.

“Gerrymandering is the antithetical perversion of representative democracy,” the court wrote. “When the dealer stacks the deck in advance, the house usually wins.” It ruled that the GOP-drawn maps did not conform to a constitutional amendment voters approved in 2015 to require fairer districts. Republicans on the Ohio Redistricting Commission have argued that the new constitutional standards of fairness are only “aspirational,” not mandatory, a claim that the court majority rejected.

But O’Connor, who is barred from running for re-election this year because of her age, won’t be on the court much longer. Her departure deprives Democrats of a rare Republican ally and forces them to win at least one of three seats on the ballot this year to compensate. 

“With the retirement of the Chief Justice, it is imperative that a fourth justice that believes strongly in democracy is elected,” Terri Jamison, a lower-court judge and one of the Democratic candidates for supreme court, says on her campaign website, explicitly referencing the redistricting rulings.

But the chief justice race is likely to produce a new Republican justice no matter who wins because of who jumped in the election on the Democratic side. The only Democratic contender is Brunner, who is a current associate justice; she will face another associate justice, Republican Sharon Kennedy. Governor Mike DeWine, a Republican who signed the state’s latest gerrymanders, is favored to win re-election, will probably replace whoever wins, so even if Brunner becomes chief justice, her current seat will likely flip into GOP hands. 

This means that, unless DeWine ends up appointing a Republican who bucks their party like O’Connor did, Democrats need to win one of the other two elections on the ballot in order to preserve the court’s latest redistricting rulings. Both involve ousting incumbents.

In addition to the open race for O’Connor’s seat, two Republican justices who opposed the court’s anti-gerrymandering rulings are up for re-election, Pat Fischer and Pat DeWine, the son of Ohio Governor Mike DeWine. Fischer now faces Jamison, and DeWine is challenged by Marilyn Zayas. (Neither Zayas or Jamison responded to requests for comment.)

Pepper says it nevertheless helps Democrats to have Brunner on the ballot, because she will boost the rest of her ticket. He argues that Brunner, who is a well-known former secretary of state, can appeal to moderate voters like O’Connor did. As partisan elections are often swept by one party, the idea goes, lifting the party’s fortunes in one race strengthens Democrats in the others. 

Ohio Republicans changed election rules last year to add candidates’ party on the general election ballot. In the past, partisanship was not included for judicial candidates, and Republicans, who were reeling from their losses in 2018 and 2020, thought that this helped Democrats prevail in this red-leaning state. 

In other states where courts have struck down GOP maps, Republicans are similarly looking to change election rules. The GOP cannot gain a majority on the Pennsylvania Supreme Court until 2025, for instance, but it is toying with a constitutional amendment that would change the way the state’s justices are selected.

In targeting the rules of judicial races, Republicans are borrowing from the North Carolina GOP’s playbook. Lawmakers there made supreme court elections partisan starting in 2018, and repeatedly tried to manipulate the electoral process. Despite the legislature’s efforts, Democrats have maintained a majority on the court for the last few years. 

The North Carolina Supreme Court split along party lines on redistricting this year. Four Democrats voted to strike down; three Republicans voted to uphold. But two of those Democratic seats are now up for grabs, and Republicans need to win just one to have a majority next year. (In 2020, they swept three elections in the state, winning one seat by only about 400 votes.) 

Republicans now have a shot at an open seat since Justice Robin Hudson, a Democrat, is retiring. Democrat Lucy Inman and Republican Richard Dietz, both lower-court judges, are facing off to replace her. In the second election, Democratic Justice Sam Ervin IV will face one of three Republicans—attorneys Trey Allen and Victoria Prince, and April Wood, a lower-court judge—who did not reply to requests for comment. 

In exchanges with Bolts, Dietz and Inman each declined to share their views on redistricting, saying they would not comment on possible future cases. Both campaigns have faulted the other party for politicizing judicial elections. 

Still, prominent North Carolina Republicans have signaled that they expect that a GOP supreme court majority would give them more leeway in upcoming years. 

“Just a reminder that whatever Congressional maps are used this year can be revised next (and every) year by @NCGOP General Assembly which may have a GOP Supreme Court Majority,” Dallas Woodhouse, the former executive director of the state Republican Party, tweeted on Feb. 4, the same day the state supreme court struck down his party’s maps.

Following that ruling, lawmakers drew new legislative districts, and the supreme court imposed a new congressional map drawn by a bipartisan panel of three experts, all former judges. The GOP’s original map, which was struck down by the supreme court, would have given the GOP 10 of the state’s 14 seats. The new map has at least six Democratic-leaning seats.

But this fairer congressional map will only be in place for one election. There will be another round of congressional redistricting after the midterms that will determine the fate of multiple U.S. House seats, and it’s the new state supreme court elected in 2022 that will review the new districts.

The new legislative districts are more likely to last, because the state constitution says they “shall remain unaltered” until the next census. To pull off mid-decade legislative redistricting, state lawmakers would have to convince the high court to circumvent that ban.

Continued fights over redistricting are also guaranteed in Ohio. That’s because, if maps fail to garner bipartisan support, they are only operative for four years. The GOP has pushed maps all on its own, though they are currently locked in a stalemate with the court, which sets up a next round by 2025-2026. The latest congressional map drawn by the GOP there gives the party at least 11 of 15 districts, and the high court is reviewing it.

Republicans have a plan even if they fail to secure more favorable judges in North Carolina and Ohio: get the U.S. Supreme Court to silence state courts.

They are invoking a theory known as the independent state legislature doctrine, which holds that state lawmakers have carte blanche on redistricting and other election-related matters, free from any judicial review. The U.S. Supreme Court has so far sidestepped the doctrine, but four of its conservative members have signaled they are open to it. 

Republicans say courts are the ones guilty of gerrymandering and of usurping the authority of lawmakers. The RSCL recently criticized Democrats for resorting “to state courts to change the rules,” and it vowed to “keep redistricting in the hands of the people.” But the state lawmakers of North Carolina and Ohio, who according to a growing number of conservatives should have sole discretion over redistricting, spent most of the last decade easily maintaining their majorities through heavily gerrymandered maps.

Kennedy, the Republican judge who could become Ohio’s chief justice in November, recently signaled conservatives’ determination to capture the court and undo its recent rulings. At a dinner hosted by a county Republican Party, she called redistricting “the fight of our life.”

The post Supreme Court Elections May Re-Open Gerrymandering Floodgates in Two Key States appeared first on Bolts.