Some ties are merely anticlimactic: Think a 0-0 soccer match or a chess stalemate. The ties that would become possible under new legislation pushed forward by Republican leaders in North Carolina’s General Assembly could prove much more consequential.

For over 120 years, the North Carolina State Board of Elections (NCSBE) has consisted of five members, all appointed by the governor, with no more than three from a given political party. County elections boards have the same partisan composition. Those bodies oversee just about every step of the democratic process, and their odd-numbered makeup means they must reach a decision in any vote they take.

State Republicans are close to upending that longstanding system. Senate Bill 749, which is nearing its final vote in the legislature, would instead give all of those boards an even number of members, expanding the state board to eight members while shrinking county boards to four. 

Because Democrats currently control the governor’s mansion, they also hold a majority on these election boards heading into the 2024 elections. This bill would deprive them of that edge; instead, all boards would be equally split between Republicans and Democrats. 

The bill would also shift power to appoint members of the state elections board from the governor to the majority and minority leaders of the House and Senate. The changes could lead to tie votes along party lines on both local and state election boards, and the bill is largely silent about how such deadlocks would be resolved.

With North Carolina again poised to be an important swing state in next year’s presidential race, the bill could complicate local election boards that oversee a wide swath of administrative decisions. 

From the appointment of precinct judges to the final certification of election results, there is no clear mechanism for what would happen after tie votes, which could in turn delay electoral processes, compromise ballot access for early voting, and potentially move decisions to the courts. SB 749 does say that, if an evenly divided state board cannot decide on an executive director, or if a county board cannot choose its chair, the General Assembly, currently in Republican hands, would step in. 

Republican lawmakers have criticized current NCSBE executive director Karen Brinson Bell for changes she approved to voting rules during the 2020 election. The new rules under SB 749 would allow them to seek her ouster if the state board deadlocks over her reappointment in 2025.

The bill passed the Republican-controlled Senate along party lines in June, and passed in a slightly modified form along party lines in the House on Sept. 19. It now awaits a final Senate vote.

Democratic Governor Roy Cooper has promised to veto the bill if it comes to his desk. In an Aug. 24 press release, he wrote, “The bill would change the structure of the state and county Boards of Elections in a backdoor maneuver to limit early voting and satisfy the Republican legislature’s quest for more power to decide contested elections.”

But Republicans hold a supermajority in both the House and Senate, meaning they have the votes to override Cooper’s veto. Both chambers adopted the bill by margins that fell short of a supermajority because many GOP lawmakers were absent the days of the vote. But not a single Republican crossed-over to oppose the bill, so the party remains on track to overturn a governor’s veto if and when the bill returns to the legislature.

None of SB 749’s three Republican primary co-sponsors in the state Senate—Deputy President Pro Tempore Ralph Hise, Majority Leader Paul Newton, and Sen. Warren Daniel—responded to multiple requests for comment on the bill.

During a Sept. 12 committee hearing on the bill in the House, Republican Representative Destin Hall argued that requiring bipartisan decisions from election boards would make North Carolina voters more confident that their state’s elections were being administered fairly. His Democratic colleagues, noting how the Republican-dominated legislature has often ignored minority input, were skeptical. 

“This is encouraging government not to work,” said House Democratic Leader Robert Reives.

Hall also said the possibility of intractable ties was a feature of the bill, not a bug.

“There’d be a stalemate, and by many ways, that’s by design,” Hall said of split election board votes. “No action would occur.”

North Carolina Republicans aren’t the only ones seeking to remake their state’s election administration bodies in a way that introduces the possibility of partisan gridlock. In 2016, Republicans in Wisconsin changed the state’s election governance from an odd-numbered nonpartisan board to an even-numbered board split between Democrats and Republicans. 

In the years since, the board has deadlocked on a number of issues, including most recently the reappointment of Megan Wolfe, a nonpartisan elections administrator who became a target for false conspiracies in the wake of the 2020 election. (The situation is now headed to the courts for resolution.)

But there’s no historical precedent for split decision-making boards in North Carolina, notes Chris Cooper, a professor of political science at Western Carolina University. From the state supreme court to county commissions, he points out, the state’s institutions are set up with odd numbers of members to avoid ties.

“There’s a reason we do this by design every time. I really can’t think of any example where there’s been a true deadlock in this way,” Cooper says. 

If Republicans and Democrats on election boards refuse to compromise, it could theoretically impact decisions on everything from disputes over voter eligibility to the certification of election results. Patrick Ganon, a spokesperson for the state elections board, declined to comment on the pending legislation. But many of North Carolina’s voting rights groups have drawn attention to early voting as a part of the electoral process that could immediately suffer from indecision.

Early voting is North Carolina’s most popular method of casting a ballot, employed by over 53 percent of voters in the 2022 general election. Those voters tend to lean Democratic: In the state’s 2022 Senate race, in-person early voters favored Democratic candidate Cheri Beasley by five percentage points, even as she lost the election overall by more than three percentage points to Republican Ted Budd. 

Under current state law, each county’s board of elections must unanimously approve a plan for the number and location of early voting sites. It’s not unusual for all members not to agree, and in those cases, the contested plan goes to the NCSBE for consideration. In 2022, the state board approved 14 of these non-unanimous plans.

If the state board were restructured according to SB 749, however, one party’s members could unilaterally refuse to adopt a county’s contested early voting plan. State law then mandates that the county would only have one early voting site, located at its board of elections office.

A single early voting site might work in some of North Carolina’s smaller counties. Tyrrell County in the state’s northeast, for example, had a population of just 3,245 as of the 2020 census.

But in larger areas, “such an outcome would be catastrophic,” says Bryan Warner, spokesperson for the nonpartisan democracy watchdog Common Cause NC. “It would gut early voting, overwhelm election administrators, and could require county residents to travel long distances and stand in long lines to cast their ballot early.”  

Wake County, home to the capital of Raleigh, had well over 1.1 million residents in 2020, and it established 20 early voting sites for that year’s election. “In a major urban area, [having just one early voting site] would be an important issue,” says Gerry Cohen, a Democrat who serves on the Wake County Board of Elections and is former special counsel to the General Assembly.

A recent study in the Election Law Journal authored by Chris Cooper, Michael Bitzer of Catawba College, and investigative reporter Tyler Dukes found that changing or eliminating early voting sites reduces voter turnout. The effect was greater for voters of color, who in North Carolina are more likely to be Democrats.

“Particularly in a competitive two-party state like North Carolina that has experienced a number of close elections in recent years, it is not an exaggeration to say that administrative changes to a polling location could impact electoral outcomes,” the study concludes.

The consequences are less clear for deadlock in other parts of the election system. While North Carolina law specifies deadlines for county and state boards to complete tasks like canvassing (confirming preliminary vote totals) and certification, it generally doesn’t outline next steps if those processes are delayed. Neither does SB 749. “It’s the Underpants Gnomes theory of election administration,” Cooper quips, referencing a crew of South Park characters with notoriously incomplete plans.

Voting rights groups’ biggest fear is that a failure by election boards to certify results would allow the General Assembly to intervene. Melissa Price Kromm, director of N.C. Voters for Clean Elections, warned the House on Sept. 12 that gridlock from SB 749 would let the legislature resolve ties, “even deciding the outcome of elections.”

Cohen, the Wake County elections official, believes such worries are overblown. He says state law clearly requires elections boards to certify results if there are no issues of fact. If one party’s members chose not to approve the results, he says, a judge would order them to follow the law under penalty of contempt of court. 

Such an order occurred last year in Arizona after Republican officials refused to certify the midterm elections. And in North Carolina’s Surry County, two GOP members of the county elections board were removed by the NCSBE after voting not to certify a 2022 municipal election.  

But given the current political climate, in which unfounded theories of voter fraud continue to circulate, it’s unclear what some elections board members might claim as issues of fact to justify a certification delay. It’s also unclear what sort of hearing North Carolina’s judges would give those claims. 

The North Carolina state Supreme Court, which came under Republican control last year, has so far been willing to make controversial rulings that favor the GOP. Its members have voted to permit previously illegal partisan gerrymandering, rolled back voting rights for thousands of North Carolinians on probation or parole, and restored a Republican-passed 2018 voter ID law that had been struck down as racially discriminatory.

If passed, SB 749 would take effect in July of 2024, creating new state and county boards in the final months leading up to the presidential election. That would chop a year off the terms of county board members who were sworn in just two months ago, and three years off the terms of the state board members seated in May.

“We have to go through another appointment process again. It’s really disruptive,” says Cohen. “I don’t own my position on the board of elections, but in life, you expect some sort of certainty.”

The post North Carolina May Increase Odds of Gridlock with Even-Numbered Elections Boards appeared first on Bolts.

In a decision that landed days before the 2022 midterms, the Pennsylvania Supreme Court ordered elections officials not to count any mail ballots on which a voter had forgotten to include a date or scribbled an incorrect one, even if those ballots arrived on time. It was a victory for Republicans who had challenged the state’s mail voting procedures, and voting rights advocates found thousands of Pennsylvanians whose ballots were tossed as a result.

The court was one vote short of ruling that rejecting these ballots would violate federal protections, and thus should be counted; it split evenly on that question, 3 to 3. The tie-breaking vote would have come from Max Baer, the court’s Democratic chief justice, but he had died just weeks before. His death weakened a court majority keen to protect voting rights, and his seat has remained vacant ever since. 

Pennsylvanians in November will finally fill Baer’s seat, just one year before the 2024 presidential race. The result could substantially affect the future of election law in this key swing state, with new cases likely looming over mail voting, redistricting, and election certification. 

“There are a large number of open questions about Pennsylvania’s elections that are almost assuredly heading to the Pennsylvania Supreme Court in 2024” Victoria Bassetti, senior counsel at States United Democracy Center, a nonpartisan group that advocates for ballot access, told Bolts. “The experience of the last three years proves that every single one of those issues is hard-fought in the supreme court.” 

“Whoever is elected to this seat will have a critical voice in those decisions—and maybe even the deciding voice,” Bassetti said.

The candidates in the Nov. 7 race have signaled they’d take election law in different directions, in the state that saw more election lawsuits in 2020 than any other.

Democrats have a 4-2 majority on the court, down from 5-2 before Baer’s death, so they are sure to keep their edge this fall no matter the result of November’s election. But decisions from this court don’t always fall on party lines, as illustrated by the 2022 mail voting case.

Plus, the terms of three sitting Democratic justices end in 2025. If the GOP narrows its deficit this year, it would set Republicans up to only need to flip one of those seats to regain a majority later this decade. 

The election pits Democrat Daniel McCaffery, a judge on the Pennsylvania Superior Court, one of the state’s intermediate appellate courts, against Republican Carolyn Carluccio, a judge on the Montgomery County Court of Common Pleas, a local trial court. In the GOP primary, Carluccio bested Patricia McCullough, the only judge in the country to side with then-President Donald Trump’s efforts to halt ballot certification in 2020. 

That GOP primary result was yet another defeat this year for candidates with overt ties to election denialism, but Carluccio herself has dabbled in election conspiracy. She claimed at a campaign event in the spring that election procedures in Pennsylvania were inviting suspicions on fraud.

“We should be able to go to the polls and understand that our vote counts and understand that there’s not going to be some hanky-panky going on in the back,” she said, despite the lack of any evidence of widespread fraud in the state ever since Trump waged those accusations in 2020 

Carluccio made those comments in the context of criticizing Act 77, a bipartisan law that broadly  expanded ballot access in Pennsylvania in 2019. Before Act 77, Pennsylvanians were required to vote in person unless they could demonstrate a special reason, like illness, to qualify for an absentee ballot. But Act 77 legalized vote-by-mail for anyone who wanted that option—and millions of voters, mostly Democrats, quickly took advantage of this new convenience during the pandemic. 

Still, Trump’s camp and other Republicans denounced it in 2020 as part of their efforts to overturn election results, arguing that the state constitution required in-person voting on Election Day, and the state supreme court upheld the law in a 5-2 party-line decision.

Carluccio appeared to invite critics of the law to bring a new challenge to Act 77 if she is elected. “I would welcome that to come up before me again, let’s put it that way,” she said at the same spring event. “I can tell you that Act 77 has been very bad for our commonwealth.”

Asked by The Philadelphia Inquirer after the event whether she believes election results in 2020 and 2022 were “free and fair,” she dodged the question: “If even one Pennsylvanian has concerns about our electoral process, we must address them,” she said. 

In an exchange with Bolts this week, her campaign sounded a different note. Asked if she thought the results of the 2020 and 2022 elections were legitimate, Carluccio simply said in a statement emailed by her campaign, “Yes.”

But she also seemed to suggest that voter concerns about fraud inform her own approach to voting procedures. She reiterated her concern about mail voting, criticizing the court she hopes to join for giving “inconsistent and conflicting” guidance on the matter of ballot-dating. 

“I’ve heard from Democrat, Republican and Independent voters across the Commonwealth and many have concerns about the security of our elections, albeit differing concerns,” she said in the written statement. “I believe bold transparency in the administration of our elections is vital, paired with consistent application of our election laws regardless of the election year.” 

McCaffery, the Democratic candidate, told Bolts in an interview by phone that he would not comment directly on legal challenges to Act 77, since he expects he may have to rule on that law  in the future. But he articulated his stance on voting rights generally: “If we’re going to err, we should always err on the side of including votes, as opposed to disqualifying votes for technicalities, or perceived technicalities,” he said. 

McCaffery added, “I think it’s pretty crystal clear: The bedrock principle behind American democracy is ‘one person, one vote.’ If that’s what we really believe, then we should be looking for ways to encourage participation.”

A former prosecutor in the 1990s who joined the bench in 2003, McCaffery has been close to the state Democratic Party, including sitting on the Pennsylvania Democratic State Committee. He’s also signaled proximity with conservative jurisprudence, though, saying in a 2019 questionnaire that John Roberts was the U.S. Supreme Court Justice closest to his judicial philosophy, over those of liberal justices listed on the questionnaire such as Ruth Bader Ginsburg and Elena Kagan. 

A win by McCaffery would keep Democrats ahead 5-2; the margin would narrow to 4-3 if Carluccio flips the seat. The next election will be held in 2025, when three Democrats are set to face retention races—up-or-down contests where voters say whether a judge should stay on the court. 

Retention elections are rarely big news: Only once, in 2005, has a sitting justice lost. But supreme court elections have been much more closely watched as of late, and national records for spending in a judicial race were smashed this spring in Wisconsin. 

One or more of the justices could also choose to not seek a new term, in which case there’d be a regular election to replace them in 2025, offering the GOP a far more direct shot to flip seats and the court. Christine Donohue, one of these justices, will turn 73 in 2025, just two years away from Pennsylvania’s mandatory retirement age for judges.

The last time the court flipped, to Democrats in 2015, it paved the way for a landmark ruling in 2018 that struck down the state’s Republican gerrymanders and helped Democrats win control of the U.S. House in the 2018 midterms. The winner of the election between Carluccio and McCaffery would serve through at least 2033 and would be set to hear any redistricting lawsuits that arise from the next round of map-drawing.

“I consider voting rights to be the most important issue going on,” said Dan Fee, a Pennsylvania political consultant who ran a super PAC that supported the Democratic judicial candidates in the 2015 elections. “We have a supreme court that cares that people vote and that votes are counted. We’d like to keep that.”

McCaffery told Bolts he applauded the court’s 2018 decision to invalidate the previous GOP gerrymander. “The old ways of doing things—I don’t think that’s fair,” he said.

In addition to gerrymandering and lawsuits over Act 77 and over ballot-dating, the court was also responsible for resolving key legal disputes in the immediate aftermath of the 2020 election. In one instance that November, the court reversed a lower court’s decision to halt certification of state elections results; in another, it reversed a lower court’s decision forcing local election officials to allow observers to watch ballot-counting from six feet away. 

In all, the Pennsylvania Supreme Court’s string of rulings enabled vote-counting to proceed on schedule. Voting rights advocates felt the state’s democracy had passed an important test.

It will be tested again, they say.

“People can get burnt out on it being the apocalypse every time,” said Kyle Miller, who recently authored a report for the nonprofit organization Protect Democracy on legal challenges in Pennsylvania. “This court oversees the real, basic infrastructure of our electoral process. It’s really important that the folks ruling on these cases support democracy and recognize that voters want their voices heard.” 

Pennsylvania’s supreme court race has also drawn attention for its stakes for abortion rights, with Democrats now hammering the message that making state courts lean left is a critical response to the U.S. Supreme Court overturning Roe vs. Wade in 2022.

Carluccio, who has said she identifies most closely with the judicial philosophy of Antonin Scalia, the late U.S. Supreme Court justice widely admired by conservatives, featured anti-abortion language on her website before deleting it earlier this year, Politico reported. McCaffery has said he disagrees with the Dobbs decision and that he believes “from a personal standpoint” that “those particular issues are best decided between a woman, her conscience and her doctor.” 

The GOP cannot change abortion rights in coming years, since they will not run the state government until at least 2026. Still, Fee says, “The threat about (reproductive) choice may not be immediate but it is there; at some point we’ll have a different governor and legislature.” 

But he and other Pennsylvania observers said the stakes of this election are more immediately high for voting rights issues, considering the heap of recent and current litigation around state elections.

“What this court is ruling on really does go to the heart of election administration,” Miller said. “The process of canvassing votes, of certifying an election—these things that used to be niche topics are now life and death.”

This article is part of U.S. Democracy Day, a nationwide collaborative on Sept. 15, the International Day of Democracy, in which news organizations cover how democracy works and the threats it faces. To learn more, visit usdemocracyday.org.

The post Different Futures For Pennsylvania Elections Collide in November’s Supreme Court Race appeared first on Bolts.

Patricia McCullough, a Pennsylvania appeals court judge, issued an order in late November to halt certification of the state’s elections. It was a rare bright spot for Trump’s “Stop the Steal” crusade and its false claims of electoral impropriety, but his victory was short-lived. Within days, Pennsylvania’s supreme court unanimously reversed her ruling and shut down the case by dismissing it with prejudice.

The case, the justices ruled, offered an “extraordinary proposition that the court disenfranchise all 6.9 million Pennsylvanians who voted in the General Election.” The state supreme court has since repeatedly reversed McCullough in other election cases, including overturning a ruling she joined last year against the state’s expanded mail-in voting rules, and rejecting her advice that the state adopt a Republican-drawn redistricting proposal. 

McCullough is now running to join the court that so directly questioned her judgment. The death of Democratic Chief Justice Max Baer in October has left a vacancy that voters will fill this year. The winner will join this swing state’s high court and hear cases that touch the 2024 election, just as Trump vies to be on the ballot once more. 

In the run-up to Tuesday’s Republican primary, McCullough has enjoyed financial support from “Friends of Doug Mastriano,” a political committee that supports Mastriano, the prominent election denier and Trump ally who unsuccessfully ran for governor last year on an agenda of disrupting state elections.

The primary pits McCullough against Carolyn Carluccio, a local judge endorsed by the state’s Republican Party who has also echoed some false claims of election impropriety. Two Democrats, Deborah Kunselman and Daniel McCaffrey, face off in a primary on the other side of the aisle, with a general election scheduled for November.

Dan Fee, a political consultant who works with liberal judge candidates in Pennsylvania, though he is not affiliated with any in this election, says McCullough siding with Trump didn’t surprise those who’ve followed her rulings over the years. 

“Republican judges across the country stood up and said, ‘This isn’t right.’ If you’re the judge who said that this passes the smell test, that raises real questions,” Fee said, calling McCullough a “national outlier of Republicans across the country.”

Judges of all political stripes rejected Trump’s claims in late 2020. The Washington Post tallied at least 38 Republican-appointed judges had ruled against Trump in the five weeks following the 2020 election. That included a Trump nominee in federal court who called a lawsuit to overturn Wisconsin’s results “extraordinary,” and the supreme court in Arizona, which is filled entirely with justices appointed by Republican governors.

“It’s almost hard to overstate how clownish these cases were and how poorly they were litigated,” attorney Sarah Gonski, who argued in favor of the Democratic Party in several Arizona cases in 2020, told Bolts. “The judges that heard our cases in Arizona were routinely Republicans. Every single one of those judges except for [McCullough] said, ‘Get out of my courtroom.’ It was definitely surprising.”

McCullough, in fact, has embraced that distinction. She said in 2021, “I was the only judge in the entire country to enter an order to halt the certification of the 2020 presidential election results.”

She made that comment during her first run for state supreme court, in 2021, just months after trying to block certification. She lost by 19 percentage points to now-Justice Kevin Brobson in the GOP primary. During that campaign, she boasted about her relationship with Trump: “I am the only candidate I know that had a tweet from President Donald Trump, and Donald Trump actually tweeted that I was a brilliant woman of courage,” she told Pittsburgh’s CBS station, in apparent reference to a post by Trump on Nov. 26, 2020.  (Trump did score some other small legal victories in late 2020, but other judges did not agree to halt certification.)

Neither McCullough nor her primary opponent, Carluccio, responded to requests for comment on this story.

Carluccio has also signaled comfort with voting restrictions and election conspiracies.

Asked by The Philadelphia Inquirer whether she believes election results in 2020 and 2022 were “free and fair,” she dodged the question. “If even one Pennsylvanian has concerns about our electoral process, we must address them,” she said. “Our government cannot simply dismiss the concerns of a large portion of our electorate.”

The Inquirer’s question came on the heels of Carluccio telling a local GOP audience that she opposed Act 77, the 2019 bipartisan law that expanded mail-in voting in the state; she claimed it had led to “hanky panky,” echoing Trump’s false allegations that mail-in voting has led to voter fraud.

Act 77 was already at the core of the 2020 case in which Trump allies sued to halt certification, as they sought to invalidate the mail-in ballots cast in the state thanks to the expanded statute. In reversing McCullough’s order in favor of the plaintiffs, the state supreme court cited the “complete failure to act with due diligence” since Act 77 had passed a year before. More than a year later, in early 2022, McCullough again sided with Republicans in another case they brought against Act 77, striking down the law as unconstitutional in a 3-2 ruling. The supreme court upheld Act 77 in August. 

Other elections on Tuesday feature candidates who have aligned with Trump’s Big Lie. In Kentucky, the Republican secretary of state is running for re-election against an election denier who has the backing of Mike Lindell. In Pennsylvania, VoteBeat and Spotlight PA identified dozens of local candidates who have amplified false claims about the 2020 election in places like Washington County.

The shadow of “Stop the Steal” efforts also loomed large in 2023’s only other supreme court race, in which liberals flipped control of Wisconsin’s high court in April. That election saw more than $31 million spent, a national record for a judicial race. Bloomberg reports that the four Pennsylvania candidates have combined to spend less than $1 million so far, though spending could intensify in the six months before Nov. 7.

Unlike in Wisconsin, the court majority is not in question in Pennsylvania this year. 

With one seat on the bench now empty, Democrats hold a 4-2 majority, and November’s victor will fill the seventh seat.

This election could open the door, however, to Republicans regaining court control in Pennsylvania in the future. The terms of three of Pennsylvania’s Democratic supreme court justices end in 2025; if they seek another term, they would face an up-or-down retention election. One Democratic justice, Christine Donahue, is set to hit the mandatory retirement age in 2027, which will prompt a vacancy. Should Republicans win this year, it may help them flip the majority later in the decade.

In the near term, Pennsylvania is likely to remain at the epicenter of election-related litigation, and the state supreme court will continue to be central to resolving that litigation.

“Anyone who remembers 2020 and is thinking ahead to 2024 knows that the Pennsylvania Supreme Court is going to play a critical role in how the state runs its elections and how the outcome of the election is managed and dealt with,” Victoria Bassetti, senior advisor at the nonpartisan States United Democracy Center, which works to protect ballot access and beat back voter suppression, told Bolts. 

She added, “No one should ever, ever be complacent or overconfident about how courts will rule in these cases, which means that every election and every judge who’s elected to that bench is important.” 

The post The ‘Stop the Steal’ Judge Who Wants a Seat on Pennsylvania’s Supreme Court appeared first on Bolts.

He was a Democrat, part of the court’s 5-2 Democratic majority that in 2018 struck down the GOP’s congressional gerrymander and has repeatedly ruled against efforts to erode voting rights. In 2020, the court sank Donald Trump’s bid to overturn Pennsylvania’s presidential results. In August, it voted on party lines to salvage Act 77, which authorizes all Pennsylvanians to vote by mail, after a lower court ruled that measure to be unconstitutional. Baer was in the majority for all those decisions.

Baer was set to quit the court at the end of 2022 as he hit the mandatory retirement age of 75, which would have left a vacancy on the court. His death raised new uncertainty as to the timing of his replacement, and brought a sudden reminder that the fate of the judiciary is also tied into a high-stakes governor’s race.

Judicial vacancies in Pennsylvania are filled by the governor, and that is retiring Democrat Tom Wolf until mid-January; but they are also subject to confirmation in the state Senate, which is currently in Republican hands. If Wolf nominates a replacement for Baer, Senate Republicans could either confirm his pick or stall and throw the choice to the winner of the race between Republican Doug Mastriano and Democrat Josh Shapiro. 

Mastriano, a far-right lawmaker running for governor with Trump’s blessing, has drawn national attention for his active participation in efforts to overturn the 2020 results, and his promise to appoint a like-minded secretary of state, which could throw the 2024 elections into disarray. If he were to appoint one or more justices to the state supreme court, Mastriano would also shift the balance on the body that would be the main check on him and his secretary of state.

The secretary of state would be tasked with certifying election results, a typically clerical role that a Mastriano appointee could weaponize to reject results, Bolts reported in July. Election law experts stress that Pennsylvania’s courts would be one stopgap against such a maneuver, much like in Michigan last month, when the GOP stumbled in its dress rehearsal for overturning elections. “There would be an effort in Pennsylvania state courts to get the Secretary of State to follow the law,” Rick Hasen, a professor at UCLA Law, told Bolts at the time. 

But Hasen told Bolts in a follow-up email this week that, “It would certainly worry me if election denialists have the opportunity to appoint Justices to a state supreme court… We need people everyone can trust to be in these positions.”

A spokesperson for Wolf told Bolts that the governor “has not made a determination at this time” on how to proceed with a replacement for Baer.

A spokesperson for Kim Ward, a Republican and the state Senate’s Majority Leader, told Bolts that it was too “preliminary” to say what the Senate should do, and that the senator first wants to see if Wolf intends to make a nomination. (Under somewhat similar circumstances at the federal level, U.S. Senate Majority Leader Mitch McConnell blocked consideration of a vacancy on the U.S. Supreme Court in 2016 under President Barack Obama, and then rushed filling another vacancy in 2020 under President Donald Trump, maximizing conservative power.)

Partisan calculations are not always straightforward: The only justice appointed by Wolf, Sallie Mundy, is a Republican. But Wolf appointed her to fill a seat that was already held by the GOP. (Mundy went on to win a 10-year term in 2017.) Mastriano and Shapiro, who has a lead in polls, did not reply to requests for comment from Bolts on how they would handle court vacancies.

Still, Republicans have been stewing over the court ever since their party lost their edge on it last decade. GOP lawmakers in 2021  floated a constitutional amendment to create a new system of electing justices in districts, which the legislature would get to draw and gerrymander, rather than statewide. Panned as a power grab by critics, the proposal stalled but may return in upcoming legislative sessions if Republicans retain the legislature. The new vacancy only adds uncertainty to the court’s composition in the future.

Whoever replaces Baer will have to run in 2023 if they want a full term; incumbents typically have the upper hand in judicial elections when they run. None of the six other seats are up until 2025, so Democrats would keep a majority until then barring any other unforeseen vacancies, which tend to arise. Last month, the chief justices of Illinois and Michigan announced their early resignations on the same day, and the chief justice of New York unexpectedly stepped down in July, breaking up that court’s right-leaning majority. 

Illinois and Michigan are among the 32 states this year that are holding supreme court elections, which are also critical on reproductive rights. That issue also resonates in Pennsylvania, where abortion is currently legal but where Mastriano sponsored legislation as a senator to severely restrict abortion; he told a radio show in 2019 that women who vioalate his ban should be charged with murder.

Such a law is no longer prohibited by federal jurisprudence since the U.S. Supreme Court overturned Roe in June. The Pennsylvania supreme court ruled in 1985 that the state constitution does not protect abortion access, but a strong Democratic majority could be open to revisiting that question. 

The post Pennsylvania’s Chief Justice, Part of a Court Majority to Shield Voting Rights, Died on Friday appeared first on Bolts.