There’s something odd about next month’s ballot in Arkansas. 

Voters are filling two supreme court seats in two separate nonpartisan elections. Neither seat’s current occupant is seeking a new term, so at first glance it may look like the cycle will add two fresh faces to the court. But of the six candidates running for these two seats, four are already sitting justices on the court—they just want to shift into different seats than their own. 

If justices who already sit on the supreme court win either of those seats, they would then need to resign from their current positions. This would create vacancies that would be filled by the state’s staunchly conservative governor, Sarah Huckabee Sanders, a reshuffling that’s poised to accelerate the court’s shift toward a solidly right-wing majority. 

“Almost inevitably, the governor is going to end up with some appointments here,” said Jay Barth, a professor emeritus at Hendrix College who has long studied Arkansas politics. “And the more she gets, the more conservative the court is likely to get as well.” 

The only two candidates not already on the court face tough odds, crushed by their opponents’ name recognition and fundraising. Each told Bolts that they’re concerned about the prospect of the governor shaping the court’s membership when justices are supposed to be chosen by voters. 

Many states select justices via elections, but then stretch the spirit of that approach. Justices in other states routinely resign before their term is up, enabling governors to name a replacement; in Minnesota, for instance, all current justices owe their seat to an appointment despite the state’s election system. As Bolts has reported, a loophole in Georgia law has even allowed state justices and other officials to maneuver to outright cancel some judicial elections.

In Arkansas, the reasons for this situation are very different across the two elections. One of the two open supreme court races this year is to replace Chief Justice John Dan Kemp, who is retiring rather than seek a new term. Three of the court’s associate justices—Karen Baker, Barbara Webb, and Rhonda Wood—are running for the open chief justice position, which is akin to seeking a promotion, since the chief justice has broad responsibilities over supervising the state’s judicial system. 

It’s not unusual for an associate justice to run for chief justice, but already sitting on the court is not a necessary stepping stone. Kemp was not on the court in 2016 when he successfully ran for chief justice. This year too, there’s a candidate running from the outside: Jay Martin, an attorney and former lawmaker, argues it’s an asset that he’s not already a justice. “I just think that we need a fresh pair of eyes on the court in the role of chief justice,” Martin told Bolts. (This race will head to a November runoff if no one tops 50 percent on March 5.)

Arkansas’ other open supreme court race is a special election that was triggered by the death last summer of Associate Justice Robin Wynne. It pits another outsider to the supreme court—Carlton Jones, a lower-court judge—against another sitting associate justice, Courtney Hudson, who is attempting to switch to the open associate justice seat. (With only two candidates in this race, one of them is sure to win outright in March.)

There’s no promotion at play here; Hudson’s current seat (“Position 3”) and the seat she is running for (“Position 2”) both fill the same role. What’s different between them is the timing of their elections. 

“By running for Position 2, I can potentially serve longer as a justice on the Court and continue my work of ensuring that everyone benefits from the goodness and protection of the law,” Hudson told Bolts this week.

Switching seats would allow Hudson to spend more time on the court, circumventing the state’s retirement age by a few extra years. Arkansas rules strip justices of retirement benefits if they run for reelection past age 70 but don’t force them to resign once they hit 70; justices can finish whatever term they’re already serving without endangering their benefits, thus the exact timing of their terms determines when they must retire. 

For Hudson, these are all considerations for a very distant future since she is only 51. Even if she stayed in her current seat, the earliest she’d have to retire is 2042. But if she succeeds at moving into the new seat this election, she’d be allowed to run as late as 2038 and serve out a final eight-year term until 2046—a potential four additional years on the court.

Jones, the lower-court judge challenging Hudson for the open seat, told Bolts in an interview that Hudson’s motivation for running was a “personal want,” comparing it unfavorably to what he called her three colleagues’ “legitimate reason” to run for chief justice. He added that a vacancy created by a Hudson win would be an “artificial opening” because of how unnecessary it is, and that this would betray the selection system that allows Arkansans to “express their choice through the ballot box.”   

“These offices, they belong to the citizens of the state of Arkansas, and we should be doing those things that best serve them,” he added. 

Hudson dismissed Jones’ concerns about her decision, saying it’s wrong to litigate the fate of the Position 3 seat during the campaign for Position 2. She said her experience makes her the best option to fill the open seat, telling Bolts, “The job of a Supreme Court Justice is far too important to wait for ‘on the job training’ to occur.” 

Martin, who is challenging three sitting associate justices for the chief justice seat, says he does not fault his opponents for trying to “step up” into the role. But he echoed Jones’ assessment that these races, and the prospect of gubernatorial appointments looming over them, are in tension with the state’s commitment to judicial elections, a system that was ratified by voters in a 2000 ballot initiative. 

“Arkansans made the decision to elect our judges, and not have the governor appoint judges,” Martin told Bolts. “We value electing judges.” 

Wood, one of Martin’s opponents, does not share his concern, telling Bolts via email, “I believe the people of Arkansas would prefer an experienced Chief Justice with a proven judicial record versus risking the Chief Justice position on someone with no judicial experience only because some would prefer the Constitution provided an alternative method for filling the temporary vacancy.” Baker and Webb did not reply to requests for comment.

A vacancy in Arkansas sparks a special election in the next even-numbered year, and an appointed justice cannot run for a full term. So if Huckabee Sanders chooses one or two new justices, they’d serve for up to two and a half years; then, there’d be new open elections for those seats in 2026. 

After Wynne’s death, for instance, the governor replaced him by appointing Cody Hiland, who was thus barred from running for the seat in the special election this year. But Barth says he expects Hiland to be on the shortlist for a new appointment to fill any vacancies that may result from the 2024 elections, which would extend his term on the court without facing voters to roughly three years. Hiland dodged the question of a reappointment when asked by The Arkansas Times earlier this month.

And important cases are looming just over the next few years, such as the challenge to a state law passed in 2023 that has significantly weakened direct democracy in the state. Relatedly, transparency advocates are embroiled in a legal saga against the state’s Republican attorney general who has blocked some popular initiatives from moving forward; the court is likely to weigh in on the fate of several ballot initiatives in coming years.

The reshuffling of the court also comes at a time of quick ascendancy for Arkansas conservatives.

While the state leans firmly to the right, its judiciary is divided between a more centrist and a more conservative wing, with recent elections producing some victories for the former. In 2022, conservatives failed in their effort to oust two justices whom they deemed to be too moderate—Baker, who is now running for chief justice, and Wynne, who passed away last year. 

Those two justices, plus Hudson, formed an informal group of three moderates on the seven-member court. Barth says that Kemp, the retiring chief justice who was first elected in 2016, typically issued conservative rulings but sometimes sided with his more moderate colleagues. But Wynne’s death last year, and his temporary replacement with Hiland, a conservative, set up a more reliably conservative majority on the court made up of Hiland, as well as Webb and Wood, who are both now running for chief justice, and Shawn Womack, an associate justice who is running for reelection unopposed this year. 

Kemp’s retirement could leave Baker and Hudson as the only two justices left on the court who have a more moderate reputation. Both are sure to stay on the supreme court no matter how they fare this year in their effort to switch seats. But if they win their upcoming races, the resulting appointments by Huckabee Sanders may shift the court yet another step to the right. 

“It’s pretty clear that the governor will attempt to appoint conservatives in those positions, that’s been the nature of her appointments so far,” Barth said. 

In their respective interviews with Bolts, Jones and Martin—the would-be newcomers to the court—each downplayed having ideological commitments, highlighting their independence. WIth candidates for judge in Arkansas running without any party label, that all makes it risky to predict how the court would rule on any issue even if they were to win. 

Still, both have run for past offices as Democrats. Jones became prosecuting attorney in Lafayette and Miller counties, in southwestern Arkansas, running as a Democrat in 2010; he served until becoming a circuit judge in 2014. Martin, who says he’s now an independent, was a Democratic lawmaker and House Majority Leader in the mid-2000s, right before the state’s hard swing toward the GOP. He also ran for governor in 2022, coming in a distant third in the Democratic primary. 

As he now runs against three sitting justices at once, Martin embraces his outsider status as the thing that distinguishes his campaign, even as his opponents hold it against him. “The presumption that any necessary change is stalled because there is not an outsider on the court is wrong,” Wood, one of the justices on the ballot, told Bolts in an email. “The Chief Justice role is not one that you can learn on the job.” Wood says she has goals of improving the court system, such as setting up a “web portal for victims of domestic violence” to file their documents.

Martin insists that his experience is relevant to the position. A volunteer pastor in Little Rock, he points to past activities like his involvement in an expungement clinic through his church as an example of the outsider’s perspective he’d want to bring. “I think that community involvement is very important to break up the status quo,” he told Bolts, denouncing the fact that many Arkansans lack access to legal help and end up unsuccessfully representing themselves in expungement proceedings or civil disputes with landlords. 

Martin also told Bolts that his background as a former legislator would prime him to talk to lawmakers and identify funding sources in budget negotiations. He vowed to be “the chief advocate for more pro bono work for attorneys and law students” to improve the legal representation people receive. 

“We can do a better job of providing services,” he said. Of his opponents who are already on the court, Martin added, “I think that it’s just easy to maintain the status quo after a number of years.”

The post Judges Play Musical Chairs on Arkansas’ Highest Court appeared first on Bolts.

Conservative justices on the U.S. Supreme Court ruled in 2019 that federal judges could not entertain complaints of partisan gerrymandering. In its landmark 5-4 decision Rucho v. Common Cause, the court said that it’s not for federal courts to decide whether an election map is designed to give one party an illegal advantage. But Chief Justice John Roberts assured plaintiffs that his decision does not leave them powerless to stop partisan gerrymandering since they still have a path for litigation: state courts.

The Rucho decision did not “condemn complaints about districting to echo into a void,” Roberts wrote, since states “are actively addressing the issue on a number of fronts.” 

New Hampshire last week became the latest state to show the promise was largely illusory. 

Its state supreme court ruled that it couldn’t consider whether the state’s election maps are illegal partisan gerrymanders because that’s not something that state judges should be deciding either. The 3-2 decision—with the three judges appointed by Republican Governor Chris Sununu in the majority—left in place the GOP gerrymanders signed into law by Sununu. This likely locks the party’s structural advantages in New Hampshire’s Senate and executive council through the 2030s. 

And it condemns complaints of partisan gerrymandering claims to echo into a void after all, with nowhere to turn in either federal court or New Hampshire court. 

The court said plaintiffs could address their grievances by getting state lawmakers to pass redistricting reform. But the odds of such a reform are low since the New Hampshire legislature is already gerrymandered, a circular dynamic that explains why voting groups tried to turn to federal and state courts on the issue. Any bill would have to be approved by the state Senate, a body whose districts have long been drawn to give Republicans an edge.

The New Hampshire decision adds to a trend in the nation since Rucho, with other state courts retreating from Roberts’ assurance and showing that they can just as easily refuse to answer the same questions. Earlier this year, for example, North Carolina’s supreme court ruled that partisan gerrymandering lawsuits can’t be brought under the state constitution, reversing past decisions to the contrary and paving the way for maps meant to maximize the GOP’s power.

New Hampshire Republicans won complete control of state government in 2020. They then proceeded to cement their advantage after the decennial census, adopting districts for the state Senate and executive council that created more Republican-leaning seats. A group of voters challenged the maps in court, alleging that they were partisan gerrymanders that violated New Hampshire’s constitution. 

But New Hampshire’s supreme court upheld the maps’ constitutionality on Nov. 29. The court declined to even consider the merits of the challenge, holding instead that partisan gerrymandering is a policy matter for other institutions to debate, and is a non-justiciable political question.

In practice, this means that no case alleging partisan gerrymandering, regardless of how egregious, can be brought in state courts. 

The New Hampshire court argued that there is no consistent method through which state judges could adjudicate such cases: no “discernible and manageable standards for adjudicating partisan-gerrymandering claims.” The language mirrors the U.S. Supreme Court’s decision in Rucho on how federal courts should approach partisan gerrymandering claims: Roberts argued in that case that adjudicating such claims is overly subjective. “There are no legal standards discernible in the Constitution for making such judgments, let alone limited and precise standards that are clear, manageable, and politically neutral,” the chief justice wrote.

The New Hampshire court’s decision flips an important part of the rationale in Rucho on its head. Roberts’ opinion also doubled as an ode to federalism; even as he sidelined federal courts, he invited states to look to their own laws and constitutions for alternative protections against partisan gerrymandering that don’t rely on the U.S. constitution. Writing in 2019, he offered as an example a 2015 decision  by Florida’s supreme court striking down a congressional map as an illegal gerrymander under the state constitution. 

Plaintiffs in New Hampshire asked state courts to similarly consider their own constitution. But in closing the door on their challenge, the state supreme court heavily relied on Rucho—calling it “directly on point” even though Rucho was interpreting the U.S. Constitution—and it drew extensively from Roberts’ opinion, even as Roberts invited states to chart their own path. 

“Provisions in state statutes and state constitutions can provide standards and guidance for state courts to apply,” Roberts wrote in Rucho, but that approach can’t get out of the starting blocks if a state court then turns to Rucho to decide how to interpret its state constitution.

Florida’s constitution, unlike New Hampshire’s, contains a clause that expressly restricts partisan gerrymandering. But even in states without such an express prohibition, some courts have found implied protections against partisan gerrymandering. In the last several years alone, courts in Alaska, Maryland, New Mexico, North Carolina, and Pennsylvania have all affirmed such protections. 

In their arguments to the New Hampshire supreme court, plaintiffs pointed to these decisions. They argued that the guarantee of “free” elections in New Hampshire’s constitution (which does not exist in the U.S. Constitution), along with other free-expression rights, established a right of voters to elect representatives on equal footing with each other. 

The court found this unpersuasive. It reiterated that developing and consistently applying standards for reviewing partisan gerrymandering isn’t possible in practice. As a “telling” sign of this inconsistency, the New Hampshire justices pointed to recent events in North Carolina, where the state supreme court struck down GOP gerrymanders in 2022 before reversing itself this year. 

But North Carolina’s court didn’t just change the standards for deciding whether maps are unconstitutional, or apply old standards differently. It simply ruled that this is not a question that judges can rationally decide, in language very similar to the New Hampshire decision. 

“There is no judicially manageable standard by which to adjudicate partisan gerrymandering claims,” North Carolina Chief Justice Paul Newby, a Republican, wrote in February. “Courts are not intended to meddle in policy matters.”

New Mexico’s supreme court offered the opposite answer this year when it confronted a similar question.

It ruled that state courts can entertain claims of partisan gerrymandering, and decide whether a map is unduly giving an advantage to a party. To get around the concern that there’s no criteria judges could manage, the court identified a set of standards with which to analyze maps. It adopted a three-part test laid out by U.S. Supreme Court Justice Elena Kagan in her dissent in the Rucho case; Kagan proposed that courts could strike down a map if they have proof that its creators’ purpose was to “entrench their party in power;” that it has had “the intended effect”; and, if so, that mapmakers cannot provide a “legitimate, non-partisan justification” for the map. 

The same court in November then upheld New Mexico’s congressional map, which delivered Democrats an additional seat in 2022, ruling on the merits that it did not violate Kagan’s test. 

The decision is a reminder that a state court’s decision to hear partisan gerrymandering claims does not mean they’ll automatically strike down a map. And when such cases come up, there’s no telling how left-leaning and right-leaning justices may rule, depending on who has drawn maps; in New York State last year, it was the conservative-leaning judges who struck down gerrymanders drawn by Democrats over the objections of more liberal judges.

But these decisions also underscore the widening contrast between courts on the first-order question of whether they’ll even entertain such claims: on whether partisan gerrymandering is a judiciable question. 

Conservative jurists have been more likely to rule that it is not. The North Carolina reversal came after the court flipped from 4–3 Democratic to 5–2 Republican last year. The Rucho decision was a similarly narrow 5-4 win for the court’s then-five conservative justices. 

And in New Hampshire, the decision to reject the partisan gerrymandering claims came down to a 3–2 vote, with the 3 justices nominated by a Republican governor in the majority, and the two nominated by Democratic governor dissenting. 

One of the justices in the majority was Chief Justice Gordon MacDonald, whose nomination by Sununu was initially rejected by the executive council when it was under Democratic control. MacDonald was then confirmed to his seat when the council flipped to the GOP in 2020.

One of the Democratic-nominated justices who dissented in this case, Gary Hicks, left the court the day after the court issued its decision because he hit the mandatory retirement age. Sununu has nominated Melissa Beth Countway, a local judge, to replace him. 

Even Florida has come a long way since Roberts mentioned its supreme court: The mere threat that its new conservative justices may now shrug off partisan gerrymandering complaints has made the state’s existing protections virtually toothless. 

After voters amended their state constitution in 2010 to add provisions against partisan gerrymandering, Florida’s supreme court used those provisions to strike down state maps in 2015 for being “tainted” by partisanship. But by the time Republicans adopted a new set of aggressively gerrymandered maps masterminded by Governor Ron DeSantis in 2022, Florida’s judicial landscape was very different: The supreme court’s liberal majority had been wiped out, replaced by hard-right justices appointed by DeSantis. 

While plaintiffs initially filed a lawsuit challenging the state’s new congressional districts as partisan and racial gerrymanders, they later dropped all of their partisan gerrymandering claims, perhaps out of a concern that the Florida supreme court would be unwilling to meaningfully enforce the anti-gerrymandering provisions in the constitution.

Looming over all of this is the threat that the U.S. Supreme Court could step in against a state supreme court that actually does strike down a state map as a partisan gerrymander.

In its June decision in Moore v Harper, the court rejected the so-called independent state legislature doctrine, which argued that congressional maps drawn by legislatures (as well as other state statutes regulating federal elections) should not be subject to any review by state courts. But the decision, which was authored by Roberts, again, still kept open the possibility that it may intervene if state courts “transgress the ordinary bounds of judicial review.” 

State courts trying to stop partisan gerrymandering may feel some trepidation about stepping over this ambiguous  line. After all, here was the same justice who told them in Rucho to look at their own state constitutions and statutes, now warning them in Moore that he may stop them even if they ground their rulings on state law. Roberts hollowed out his own promise, restricting with one hand what he had invited with the other.

The post Yet Another State Shuts the Door on Partisan Gerrymandering Complaints appeared first on Bolts.

Most obviously, these courts have become an urgent route for liberal litigants in light of conservatives’ durable majority on the U.S. Supreme Court. State courts get to interpret state constitutions, which often protect rights and liberties more expansively than the U.S. Constitution, and they’ve proven friendly to arguments that wouldn’t succeed in federal court. The right has also focused on them to expand its control over the judiciary.

But these courts have even more clout than you may realize. They can shape virtually any policy area that state and local governments touch. They’re likely to have the final word on all cases filed in state courts, and many play additional roles that extend far beyond deciding cases, from crafting the rules of criminal trials to taking part in redistricting and certifying elections.

And yet these courts’ exact powers and procedures often remain well under the radar. What justices do and how they’re selected varies widely from state to state, and it always differs from the federal system. Most states elect justices but have their own twist on electoral rules, while some courts are shaped by commissions largely out of public view—and nearly all serve some idiosyncratic function with little scrutiny. These distinctions all influence how each court acts and what might be levers of change.

Today Bolts is publishing a new state-by-state resource that plunges into the weeds of these critical judicial powers. For each of 54 courts—accounting for the highest court in all 50 states, two of which have two separate high courts, plus Puerto Rico and D.C.—we cover every nook and cranny of how they are organized, what functions they serve, and rules for judicial selection.

But here we also wanted to take a step back. Why should we care about state supreme courts? What types of cases do they even hear? And what do we know about the balance of power between liberals and conservatives foothold on these courts across the country? Below is our FAQ to answer your big questions on state supreme courts.

I follow the U.S. Supreme Court: Why also care about state supreme courts?

If state and local governments have any involvement in an issue, you can bet that state supreme courts shape public policy on it. Why is abortion more widely available in this state than in neighboring ones? Why are police officers harder to prosecute in one jurisdiction over another? Why does this state better protect the rights of employees or access to mail-in ballots? The answer often has to do with how legal cases were resolved by state supreme courts, and who was sitting on them when they did.

In fact, many cases begin and end in state court, and never interact with federal judges. That includes countless civil lawsuits, and the vast majority of criminal prosecutions. These cases are heard within each state’s separate judicial system, and then work their way to the top state court that has supreme authority over their outcomes.

That’s how state supreme courts end up with the final word on critical cases—whether a lawsuit against South Carolina’s abortion restrictions, the appeal of a death sentence in Florida, or the legal battle over Illinois pensions. Some of these high courts also have idiosyncratic roles such as drafting bail schedules or approving pardons, and they can shape the rest of the judicial branch: That’s information that Bolts’ new state-by-state resource supplies.

Why would a case end up in state courts instead of federal court?

By-and-large, federal cases involve allegations that something or someone violated federal laws or the U.S. Constitution, or involve large financial amounts, inter-state disputes, or federal agencies. 

Everything else is likely to end up in state court, and possibly escalate to a state supreme court. 

These can be civil cases—you can bring a lawsuit in state court, especially if you’re invoking your state’s laws or your state’s constitution—or they can be criminal cases. Every state has its own criminal laws, and local prosecutors can charge people for breaking them in state courts; and if you’re convicted of a crime, you can appeal all the way to your state’s high court. 

What’s the role of state constitutions?

The rights inscribed in the U.S. Constitution only set a floor. Each state has a constitution that may have different language or protect rights that the U.S. Constitution doesn’t, at least if a state supreme court interprets it that way. How receptive a given court will be to such arguments, of course, will depend on its membership.

For instance, the U.S. Constitution’s prohibition on “cruel and unusual” punishments is mirrored in many state constitutions, with some even banning “cruel or unusual” punishments, a grammatical tweak that may justify more expansive protections. And in each state, the supreme court will effectively have the final word on what exactly those clauses forbid.

In light of federal courts’ sharp turn to the right, many progressive and civil rights groups have prioritized filing state lawsuits by crafting arguments that rely on their own state’s constitution. They may argue, for instance, that its language enjoins climate action or protects reproductive rights.

But can’t the U.S. Supreme Court step in regardless? 

Yes, if you’re unhappy with how your state supreme court decided your case, you typically can appeal to the U.S. Supreme Court. But that court hears very few cases. It’s also extraordinarily unlikely to consider a case that involves a state supreme court interpreting its own state’s constitution or statutes.

In practice, state supreme courts have the final word on what rights their state constitutions provide, and on nearly all cases and lawsuits that work their way through the state court systems. 

So what do these state supreme courts do, day-to-day?

Their primary role is to review decisions made by lower courts. Every state has its own judicial pyramid, like the federal system: there are trial courts, typically appeals courts, and a supreme court at the top. (There are variations on this structure; most notably, Oklahoma and Texas have separate high courts for criminal and civil matters.)

State supreme court justices decide whether to take up a case for review. 

But these courts also serve many other functions. Most are responsible for supervising the operations of their state’s entire judicial branch, putting them in charge of vast bureaucracies. They appoint people to key spots, and decide on rules that everyone else must follow, from attorneys to lower-court judges. In many states they also write the detailed procedures that govern any criminal case, including major matters like how bail or sentences are calculated.

Some courts have even more direct powers. In Arizona, justices witness election certification. In Nevada, they sit on the pardon board. In Tennessee, they appoint the attorney general.

Our state-by-state database highlights these unique powers for every high court, including the role each plays in crafting the rules of criminal procedures, and in various tasks relating to elections.

How do states decide who sits on their supreme courts? 

Every state sets its own rules for how justices are selected and how they remain on the court, and no two states do it exactly the same—and none do it exactly like the U.S. Supreme Court.

One rare trait that unites nearly all states is that justices serve set terms. They are on their court for defined periods of time and then must seek a new term. Only in Rhode Island do they serve for life with no age restrictions, like they do on the U.S. Supreme Court. 

This alone makes the membership of state courts far more fluid than the U.S. Supreme Court’s. To top it off, some states even impose a mandatory retirement age, often between 70 and 75. 

Otherwise, state systems differ a great deal. Broadly speaking, they fall into two big buckets as to how justices make it on the court.

Some states elect their justices from the get-go. People not yet on the court can run for a seat, and incumbents who want new terms may face challengers. States like North Carolina and Wisconsin, for instance, consistently have heated judicial elections. 

In other states like Indiana and Vermont, justices are always first appointed onto the court, typically by a governor. But these states vary on whether an appointed justice faces elections once they’re on the court. In many states, justices must face retention elections at the end of their term—up-or-down elections in which voters decide whether an incumbent can stay on the court. 

States also vary on how much latitude governors have when they select a justice: Some governors are free to choose anyone without even worrying about legislative confirmation. Governors making high court appointments in other states, like Missouri, are much more constrained and must choose from a shortlist preselected by a nominating commission over which they may have little control. And in Virginia and South Carolina, supreme court appointments are made by lawmakers with little involvement from the governor.

In practice, though, the difference between elections and appointments can get very blurry. 

Take Minnesota and Georgia, which have regular judicial elections but nearly all sitting justices first made it onto the court through an appointment. That’s because justices often resign before their term is over, letting governors select a replacement with little constraint. Once appointed, these incumbents rarely face any opposition when they run for a full term. 

Does my state have elections? 

Thirty-one states organize some sort of elections for supreme court justices. 

In some states, justices only face voters once they’ve already been on the court for a few years, and only in the form of retention elections—no named challengers, just a yes-or-no vote on whether they should stay on the court.

Other states organize regular elections for all judicial seats: Every few years, any candidate who meets the qualifications to be a judge can run for a seat whether or not there’s an incumbent, and the winner joins the court. That sounds simple enough, but each state comes with some twist. Elections may be held at odd times, they may be canceled at the drop of a hat, and they may be governed by unusual rules that don’t apply to the state’s more prominent elections. 

To complicate matters further, states may also mix up these models, using either regular or retention rules depending on the circumstances. 

Are judges partisan or political officials?

Only nine states elect judges in partisan elections. Candidates there may file to run as a Democrat or Republican. 

Still, in states that hold nonpartisan elections, parties and groups that support a political cause frequently get involved. Elections in Wisconsin are ostensibly nonpartisan, for instance, but are also very polarized. Other states with nonpartisan systems have sleepier elections. 

Similarly, in states where justices are appointed, party affiliation is not a formal factor in the process, but the political leanings of prospective appointees are often a factor on the decisions of the governors or lawmakers who make the selection—much like in the federal system.

That may be true even in states that constrain a governor to a list preselected by a nominating commission made up of legal professionals—a process that is meant to be more meritocratic but does not eliminate political considerations. The shortlist may present various options that preserve a governor’s ability to shape the court’s direction, and some commissions also have an ideological bent. There’s often backdoor maneuvering about who sits on them, with governors or legislative leaders shaping their  membership. Florida’s commission, for instance, has helped Governor Ron DeSantis move the state’s high court to the right, while New York’s has faced scrutiny for leaving jurists of color off of nominating lists. In Iowa, the GOP recently changed its commission to give the governor more control over who sits on the commission.

Can you tell me which party, or which ideological side, controls which court?

This is a difficult question. Only 12 high courts explicitly integrate justices’ party affiliation into their selection. That’s usually because the justices are elected in partisan elections, but it may also be because there’s a formal requirement (Delaware) or informal convention (New Jersey) that there be some partisan balance on the court.

In those states, it’s at least possible to say which party holds a majority of the court.

As of today, 6 of these courts have a Republican majority and 6 have a Democratic majority. (Two of those Republican majorities are in Texas, which is a rare state with two high courts.)

But judicial philosophies do not always map onto judges’ partisan affiliation.

Inversely, courts that are technically nonpartisan may have a strong ideological lean. They may have a coherent majority that constantly favors liberals or conservatives, or justices whose careers demonstrate a strong affiliation to a political cause. In Arkansas, for instance, a majority of supreme court justices now have ties with the Republican Party after Governor Huckabee Sanders appointed the chair of the state GOP to the court this summer. Wisconsin’s court flipped from a conservative majority to a liberal one as a consequence of the 2023 elections. New York’s conservative-leaning court took a step to the left this spring after a heated battle in which progressive groups fought the governor’s initial nomination. 

Assessing a court’s politics may then entail identifying other proxies for judicial ideology. In states with judicial appointments, we can start by assessing the party of the governors who selected the justices. In Minnesota, for instance, all justices as of now have been appointed by a Democrat, while in Arizona they’ve all been appointed by a Republican. 

This is a reliable predictor in some states—but it can be an imperfect proxy in others since some governors must get their choices approved by the legislature, or are constrained to choosing from a commission’s shortlist. Then again, governors can try to craft these commissions to their liking to gain more influence over the process, frequently far out of view of the general public.

The devil is in the details, which is why Bolts’ state-by-state database lays out more information on each court’s process.

How do state supreme courts affect a specific issue I care about?

On any issue, lawsuits may put a state’s statutes and practices under court scrutiny, at which point it comes down to what’s written in the state’s constitution and laws—and who has the power to interpret them. Many courts also have rulemaking powers that give them the ability to upend some matters even more directly. Here are some examples of what to watch on just six key issues.

If you care about abortion rights: The U.S. Supreme Court overturned Roe v. Wade in 2022, but state supreme courts can interpret their own constitution as recognizing a right to abortion. A Bolts analysis found that a dozen had done so by the time of the Dobbs ruling, and more since. But conservative gains can undo these rulings. In 2018, Iowa’s supreme court ruled that the Iowa constitution guarantees a right to abortion but then reversed itself in 2022 after the arrival of new conservative justices. 

If you care about criminal justice: State courts shape the rights of people accused of crimes at every stage of a criminal case, and some courts have pushed back more than others against invasive police practices or extreme sentences. Many supreme courts also write their state’s rules of criminal procedure—lengthy codes that govern how cases unfold, from the issuance of warrants to the calculation of sentences. Some courts even set bail schedules. This is an often-overlooked but potent policymaking role. In 2021, for instance, Arizona’s supreme court eliminated peremptory strikes, the practice by which attorneys can eliminate someone from the jury pool without stating a cause. Explore our state-by-state guide to learn the extent of each court’s rulemaking role with regards to criminal procedure; the guide also specifies for each court whether a court is involved in drafting sentencing guidelines and setting bail schedules.

If you care about LGBT rights: Some state constitutions provide greater protections for individual rights than the U.S. Constitution, and LGBT activists have turned to state courts when federal courts have been unwilling to affirm certain rights. In 2003, Massachusetts’ supreme court recognized marriage equality, setting off a wave of supreme courts that did the same before the U.S. Supreme Court legalized same-sex marriage nationally. And as states are now passing new anti-trans legislation, state advocates are again turning to state courts.

If you care about education: Many state constitutions contain provisions that state courts have interpreted as creating a right to education, and activists have argued in court since the 1970s that unequally or inadequately funding schools is unconstitutional.

If you care about the environment: As the climate crisis rages on, the regulatory power of environmental agencies often hinges on decisions by state supreme courts. Plaintiffs have also invoked environmental rights to push for climate action, with some success; Hawaii’s supreme courts, for instance, recently affirmed a robust interpretation of such rights in its state constitution, and a case in Montana that involves a right to a “healthful environment” could soon make its way to that state’s supreme court.

If you care about how elections are run: The shape of democracy can hinge on the composition of state supreme courts, which play a crucial role in blessing or rejecting voter suppression. Lawsuits are constantly filed in state courts challenging election law and practices, anything from voting procedures and gerrymandered maps to legislation restricting access to mail ballots. A change in the court’s membership can lead to major changes in election law, as in North Carolina this year. And some supreme courts are tasked with more direct roles in the running of elections, like supervising the drawing of new maps or participating in the certification of election results.

For more information, explore our state-by-state guide to how each state’s high court.

The post Everything You Always Wanted to Know About State Supreme Courts appeared first on Bolts.

As the administrator of the Wisconsin Election Commission, Meagan Wolfe is the nonpartisan manager of the office that advises and aids Wisconsin’s 72 county clerks and nearly 2,000 local election officials. 

Wolfe is widely respected by local clerks and election experts from both parties. But she has become a target for right-wing conspiracy theorists touting false claims that the 2020 election was stolen from former President Donald Trump, and Republican lawmakers who want to appease their base have turned her into a convenient scapegoat.

After state senate Republicans made clear earlier this summer that they were unlikely to confirm her for another four-year term, the commission’s Democrats moved to block a procedural step to allow that vote to happen at all. Now, to keep Wolfe in office past her term expiration on July 1, Democrats are banking on the courts to uphold the precedent of a controversial ruling that they had decried and Republicans cheered just a year ago.

This unprecedented and unpredictable situation is the result of Republicans’ yearslong attacks on the state’s election governance—and could undermine Wisconsin’s ability to run a smooth election in 2024, when it could well be the state to determine the next presidential election.

Wolfe’s employment status will likely be decided at the state supreme court—which is set to flip to a liberal majority on Aug. 1—adding another layer of uncertainty and practically ensuring that the process will drag on for months before any resolution.

Republicans’ barrage of partisan attacks on Wolfe and her office have already depleted staffers’ morale and could lead to a staff exodus that saps the office of crucial institutional knowledge ahead of what will be a supercharged presidential election in a crucial battleground state. Two sources told Bolts that the Wisconsin Election Commission’s head of information technology recently announced she was leaving—and they’re worried others may decide to depart as well.

“My fear is that the uncertainty around Meagan is going to create uncertainty around her staff and what their future could look like. Some of them have already been through a ton, just like all of us, with 2020. And maybe this might just be the last straw,” Milwaukee County Election Commission Executive Director Claire Woodall-Vogg told Bolts. “That really scares me.”

And there’s no good solution in the offing.

If Wolfe is forced out, the commission will have to scramble to find an adequate replacement for a highly specialized, incredibly difficult, and closely scrutinized job that few competent administrators would want given the partisan fury that it draws. But if the courts rule that Wolfe can stay in her job through the next election even though her term has expired, it gives Republicans an easy foil if they narrowly lose the state’s presidential election next year.

“Either way, we’re screwed,” warned Jay Heck, the executive director of the good-government group Common Cause’s Wisconsin chapter.

A Badgered State

The fight over Wolfe’s reappointment is just the latest dust-up in a long-running battle over election administration in Wisconsin. Republicans have been crying foul over the state’s election system for years, using their gerrymandered supermajorities in the state legislature to repeatedly change the rules and oust nonpartisan officials they thought were biased against them. That partisan sniping got supercharged during and after the 2020 election, when many embraced President Trump’s claims that the state’s election had been stolen from him in spite of numerous investigations that proved that was false.

This tension began building more than a decade ago. In 2007, following a bipartisan legislative campaign finance scandal, lawmakers of both parties teamed up to create a Government Accountability Board (GAB) composed of retired state judges to oversee the state’s elections. 

That board drew national praise from good-government groups for its nonpartisan setup, which—unlike many states where elected or appointed partisans run elections—helped inoculate it from the day’s politics. But Republicans became disenchanted, then furious, when the board approved an investigation into whether then-Governor Scott Walker, a Republican, illegally coordinated with outside groups during his 2012 recall election. That investigation dragged on for years before it was ended by a controversial decision by the conservative-dominated Wisconsin Supreme Court in 2015. 

Walker and Republican lawmakers soon passed legislation to dissolve the board and replace it with the Wisconsin Election Commission. It was modeled in part on the Federal Election Commission, with three appointed Democrats, three appointed Republicans and a majority required to make any decisions—meaning that it was designed to deadlock on controversial issues.

The commission’s first administrator was a holdover from the GAB, and Republicans accused him of favoring Democrats, pushing him out of that role at the beginning of 2018 as part of a flurry of partisan power-grabs right before Walker left office after losing to Democrat Tony Evers.

Wolfe was, at the time, Republicans’ choice for an administrator they thought would treat them fairly. She had already spent years working for the state on elections at that point, first at GAB then WEC, and was promoted to interim administrator by a unanimous vote by the committee’s six members that spring. 

The GOP-run Senate unanimously confirmed her to a full four-year term a year later.

Since then Wolfe has earned accolades from local election clerks from across the political spectrum.

“I couldn’t tell you whether she’s a liberal or conservative in all the years I’ve worked with her,” former Wisconsin Republican Sen. Kathy Bernier, a former local election clerk who regularly worked with Wolfe during her time in the legislature, told Bolts.

Fond du Lac County Clerk Lisa Freiberg, a Republican, said Wolfe “puts everything and more” into the job. 

But Republican legislators were enraged that the commission, in response to the COVID-19 pandemic, expanded voting procedures for the 2020 presidential election—and the commissioners and Wolfe soon became targets of conspiracy theories that they had intentionally rigged the election against Trump.

One specific policy changing nursing home voting practices became a central theme of the GOP conspiracy theory that the election was stolen. Wisconsin law mandates that voting deputies are supposed to visit nursing homes to help residents vote and make sure everything is on the up-and-up, but because most nursing homes banned all visitors during the peak of COVID-19, the commissioners waived that rule and encouraged absentee mail voting instead.

Racine County’s Republican sheriff claimed intentional voter fraud, alleging that a handful of nursing home residents who had been declared incompetent to vote by judges had cast ballots anyways. The county’s Republican district attorney declined to bring charges but many Wisconsin Republicans still accused the commissioners of willfully misinterpreting the law . 

President Trump soon added the allegations to his conspiracy fodder, falsely claiming that Wisconsin nursing homes had sent in “thousands and thousands and thousands of crooked votes” in campaign speeches.

Republicans even went after their own committee members, bullying GOP commissioner Dean Knudson into stepping down from the commission for, in their view, siding too often with Democrats. They replaced him with Wisconsin Elections Commission Chairman Don Millis. 

And they turned on Wolfe as well. Chris Kapenga, the Republican Senate President, demanded in late 2021 that Wolfe and all of the WEC’s commissioners resign.

Michael Gableman, the archconservative former state supreme court justice who was commissioned by Republican legislative leaders to investigate the 2020 election, and who repeatedly pushed false conspiracy theories as part of that process, called for the commission to be dismantled. And he singled Wolfe out for her appearance.

“Black dress, white pearls—I’ve seen the act, I’ve seen the show,” Gableman said during a 2022 radio interview, comparing Wolfe’s outfits to Hillary Clinton’s.

But Wolfe was not even a member of the commission. Her job was to carry out the decisions determined by its members, all while providing guidance to local officials, helping them overcome challenges, making suggestions and implementing the commissioners’ instructions as they tackle any policy decisions and legal interpretations themselves.

“All the complaints that I’ve heard about drop boxes, special voting deputies, all of that—none of those were Meagan’s decision,” Millis told Bolts. “My concern is that she has become a lightning rod for people who are angry with the decisions of the commission.”

Putsch and Shove

It became clear this spring that state Republicans wanted Wolfe gone by the end of her term in June. 

According to state law, the commission gets to select an administrator, but the Senate must then confirm them. Kapenga told the Associated Press in mid-June that “there’s no way” that the Senate would vote to give her another term. He promised he would “do everything I can keep her from being reappointed.” 

Wolfe responded in an open letter to Wisconsin’s election clerks in mid-June making the case for why she should get another term. 

“It’s clear that enough legislators have fallen prey to false information about my work and the work of this agency that my role here is at risk,” she wrote. “There is no substitute for my decade-plus of experience in helping run Wisconsin elections at the state level. It is a fact that if I am not selected for this role, Wisconsin would have a less experienced administrator at the helm.”

To help Wolfe stay in office, the three Democrats on the commission turned a recent supreme court precedent they strongly disagreed with to their advantage.

Last summer, the supreme court, which had a conservative majority at the time, ruled in a 4-3 decision that a Republican appointee who refused to leave office when his term ended could stay in the job indefinitely. The extraordinary ruling validated Republican efforts to stymie Evers, the Democratic governor who took office in 2019, and prevent him from installing new appointees at the head of the state’s agencies.

Democrats were furious at the time. But this summer they decided to test the precedent to let Wolfe stay in office by virtue of her prior term, rather than ask the GOP Senate to approve a new term. When the board met to vote to re-appoint Wolfe in late June, the three Democrats abstained from the vote. Even with all three Republicans voting for Wolfe, that left the commission without a majority, halting the nomination rather than sending it to the Senate.

“It’s a terrible decision. But it is a decision, right? Like, it’s the final answer on this,” Democratic commissioner Ann Jacobs told Bolts, referring to the 2022 state Supreme Court ruling. “So that appears very specifically to deal with the situation we found ourselves saying with the elections commission.”

Republicans slammed the Democratic commissioners for circumventing the normal process.

“It’s just highly hypocritical and that makes it harder to revive confidence in our elections,” Millis said.

Senate Republicans responded by essentially pretending the committee’s deadlock vote didn’t happen and voted to take up her reappointment when the chamber reconvenes in September. But their interpretation that the commission’s 3-0 vote with three abstentions meant that Wolfe’s reappointment had been approved for the Senate to review flies in the face of the law’s actual language, which requires a majority of the 6-member commission to approve, not simply a plurality, or majority of those voting. 

Millis, the commission’s Republican chair, ruled that the commission’s vote to reappoint Wolfe had failed even though he supported it.

Senate Majority Leader Devin LeMahieu has privately admitted as much. He acknowledged in an email he sent to conservative activists in mid-June that was obtained by the Wisconsin State Journal that because of the state supreme court’s recent precedent, “If WEC doesn’t reappoint Wolfe or a replacement, the senate would have no power to get rid of her through the confirmation process.”

What’s Next?

It’s unclear where the process goes from here. Spokespeople for LeMahieu and Kapenga declined to make them available for an interview, or answer questions about Senate Republicans’ plans to try to remove her from office.

The most likely scenarios are that Republicans will either file a lawsuit to try to get the courts to determine that Wolfe can no longer stay in her job because the commission didn’t confirm her for another term, or they’ll try to remove Wolfe on their own with a Senate vote, in which case Democrats will go to court.

The conservative majority that ruled to allow appointees to stay in office indefinitely will no longer exist in just a few days. Liberal judge Janet Protasiewicz will be sworn in to a ten-year term she won in April, giving the court a left-leaning majority for the first time in a generation. This means that the three liberal justices, who last year ruled against allowing people to stay in office past their terms, are now in the court’s ideological majority. 

But there’s no guarantee that the members of the court won’t reverse themselves now that the shoe is on the other foot. Judges can side with their side’s best political interest even if it conflicts with their prior legal reasoning. Protasiewicz has yet to weigh in on the matter. 

“I will take my shots with the court, rather than at the Senate,” Democratic Commissioner Mark Thomsen said during the hearing where the Democrats abstained from voting on Wolfe’s renomination..

Jacobs, another Democratic commissioner, admitted to Bolts she does not know how the court will rule. “I don’t know the answer to that. I don’t think anyone does. We’re all just sort of dealing with this unusual situation we find ourselves in,” Jacobs said.

“It’s hard for me to predict what’s going to happen,” Millis, a Republican commissioner, said. “I have no grand strategy. This is sort of unprecedented.”

If Wolfe is removed, the six commissioners would have to execute a rapid job search for her replacement who would remain in the position for a year, likely through the 2024 elections. But the law stipulates that commissioners only have 45 days to find, hire and then vote to appoint a temporary replacement. If they fail to do so or can’t agree on a replacement, the choice would go to the Republican-controlled Joint Committee on Legislative Organization, which includes Republicans who have lobbed baseless attacks against Wolfe.

Wolfe declined to be interviewed for this story.

Freiberg, Fond Du Lac County’s Republican election clerk, told Bolts that she’d recently had a 50-minute phone conversation with Wolfe, who she considers a friend. She said Wolfe kept wondering: “Am I going to have a job tomorrow?”

But Freiberg said in spite of that uncertainty, she knew that Wolfe would continue to put “nothing less than 100 percent into her day-to-day job”—as long as she was still employed.

And if she’s forced out?

“It’s gonna be hard to find anyone qualified to do it. It is a difficult job,” Millis told Bolts. “The worst-case scenario is we’re in some sort of limbo for months.”

Correction: An earlier version of this story misstated the position that Wolfe was promoted to. She was made interim election administrator by a commission vote in 2018.

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Known as the independent state legislature doctrine, the theory claims that the Elections Clause of the U.S. Constitution grants state legislatures near-total authority to regulate federal elections and draw congressional districts, and that no other institution can check them. Had justices embraced the doctrine, it could have drastically curtailed if not eliminated the ability of state courts to thwart lawmakers looking to suppress votes, gerrymander election maps, and subvert election results. It could even have sidelined governors, independent redistricting commissions, and other state officials from overseeing federal elections.

Instead, writing for a majority of six justices, Chief Justice John Roberts rejected the theory. “The Elections Clause does not insulate state legislatures from the ordinary exercise of state judicial review,” he wrote in a decision that’s largely focused on the power of state courts.

Roberts was joined by the court’s three liberal members, Justices Elena Kagan, Ketanji Brown Jackson, and Sonia Sotomayor, as well by Justices Amy Barrett and Brett Kavanaugh. Three conservative justices dissented. 

Tuesday’s decision keeps alive high-stakes litigation challenging gerrymanders and onerous voting requirements in state courts, such as a lawsuit challenging Wisconsin’s congressional map that is expected to be filed once the state supreme court flips to a liberal majority this summer. Given the conservative bent of the federal bench, civil rights litigants have increasingly turned to state courts on all sorts of matters from abortion rights to criminal justice; an adverse ruling in this case could have gutted that strategy on voting rights.

Stuart Naifeh, manager of the Legal Defense Fund’s Redistricting Project, stressed his relief that his organization will be able to continue litigation on issues they cannot bring in federal courts. “The Supreme Court has affirmed that state courts are not barred from addressing critical issues, like partisan gerrymandering, which the Supreme Court held in 2019 that it did not have jurisdiction to consider,” he said in a statement, alluding to a ruling, also authored by Roberts, that partisan gerrymandering claims in particular cannot be brought in federal court. 

He added, “By rejecting ISL theory, the Supreme Court has set an important precedent that state courts retain the authority to prevent suppression and protect their citizens from disenfranchisement.”

Still, Tuesday’s ruling came with a caveat whose full ramifications may not be known until 2024, if not later. 

The fifth section of Roberts’ opinion stresses that the authority of state courts authority is not unlimited when it comes to regulating federal elections, and that the U.S. Supreme Court has an “obligation” to intervene to ensure that state courts do not “transgress the ordinary bounds of judicial review.” This language is vague as to how the justices will test this criteria, and when they might intervene. But in a break with usual practice, it hints that they may be more aggressive going forward in policing how state courts interpret their own state’s laws and constitutions.

In light of the right’s dominance on the federal bench, this caveat could end up undermining state courts as a fruitful alternative for voting rights litigation after all. And with the 2024 presidential election just around the corner, it is also creating new uncertainty for future election cases. One election law expert labeled it a potential “time bomb.”

The independent state legislature doctrine arose for the first time in recent memory in the litigation over the 2000 presidential election, but the doctrine’s visibility in conservative legal circles grew as state courts asserted a greater role in combating partisan gerrymandering, as well as in the aftermath of the 2020 election.

In late 2020, several GOP-led states asked the U.S. Supreme Court to block the certification of some states’ election results to help Donald Trump overturn his loss to Joe Biden. They argued that changes ordered by state courts in places like Pennsylvania, for example, had violated the U.S. Constitution because the authority to order those changes should have been reserved for lawmakers. This legal effort failed but some conservatives remained intent on further testing the doctrine.

When the North Carolina Supreme Court in 2022 struck down a congressional map approved by the state legislature as an illegal gerrymander, state Republicans invoked the independent state legislature theory and appealed to the U.S. Supreme Court. Voting rights advocates grew alarmed when it agreed to hear the case.

The federal court heard Moore vs. Harper in December, just weeks after control of the North Carolina’s supreme court flipped from a liberal to a conservative majority in the midterms, and the new court in early 2023 overturned the earlier rulings striking down the state’s congressional map. Some court observers thought that the U.S. Supreme Court may use this as an opportunity to declare the case moot, deferring the showdown over the independent state legislature theory to a future date.

But the 6–3 majority determined that the case wasn’t moot and proceeded to rule on the merits. Writing for the majority, Roberts pointed to a long string of precedents in which the U.S. Supreme Court has held that state legislatures’ power under the Elections Clause isn’t absolute.  In the past century, Roberts detailed, the court has greenlit many instances in which the rules of federal elections have been set by actors other than state lawmakers. Those include voters using ballot initiatives to reject a redistricting proposal, a governor vetoing a map, and independent redistricting commissions drawing new congressional lines.

Roberts’s defense of independent redistricting commissions is especially striking since he wrote a vocal dissent in the 2015 case that tested their constitutionality. Roberts castigated Justice Ruth Bader Ginsburg’s majority opinion in that case as “perform[ing] a magic trick,” and many thought the decision was under threat of being reversed. But on Tuesday Roberts seemed to have changed his tune and approvingly cited Ginsburg’s opinion.

Justice Clarence Thomas, joined by Justice Neil Gorsuch and only in part by Justice Samuel Alito, dissented on Tuesday. He argued the case should have been dismissed as moot but he also made a case for the doctrine on the merits. State constitutions, he wrote, “cannot control what substantive laws can be made for federal elections.”

Despite North Carolina Republicans’ failure to get their arguments upheld, Tuesday’s ruling brings no relief to the original plaintiffs who had challenged the GOP’s gerrymander. The new Republican majority on that state’s supreme court has given lawmakers there a virtual carte blanche in how they redraw maps, and the GOP is now widely expected to adopt a brutal gerrymander that could give them as many as four new congressional seats in 2024.

Moreover, many voting rights lawyers and election law experts are now expressing nervousness about Part V of Roberts’ opinion: This is the section that defies the typical deference that federal courts have shown to state court decisions that are grounded on that state’s own statutes and constitution. It carves out an exception to that general practice when it comes to federal election cases. 

The U.S. Supreme Court can always receive appeals of state supreme courts decisions, but its typical practice is to not review the validity of rulings that are focused on state texts. Moore vs. Harper tweaks that approach. Citing the unusual opinion overruling the Florida Supreme Court in Bush v. Gore (this is the first time ever that a majority opinion has cited that case), Roberts’ majority opinion hints that his court will keep a more watchful eye on state judges.

The chief justice nods toward a soft version of the independent state legislature theory. “State courts may not transgress the ordinary bounds of judicial review such that they arrogate to themselves the power vested in state legislatures to regulate federal elections,” he writes. “The Elections Clause expressly vests power to carry out its provisions in ‘the Legislature’ of each State, a deliberate choice that this Court must respect.”

In practice, there is no way of fully anticipating what this means for future decisions, and whether the U.S. Supreme Court will step in only for extraordinarily rare cases or more frequently, until those cases arise. “The Court makes clear that it is not providing any standard at all—even an attempt at a standard—as to what this means concretely,” Rick Pildes, a professor at New York University School of Law, wrote on Tuesday.  

The concern is that this ruling may give the conservative majority on the U.S. Supreme Court more room to second guess state supreme courts—and that this will be tested in the cases that are bound to arise in the midst of the crucible of the upcoming presidential election. Moore vs. Harper, writes Rick Hasen, a professor at the UCLA School of Law, “is going to potentially allow for a second bite at the apple in cases involving the outcome of presidential elections.”

Still, the U.S. Supreme Court’s rejected voting rights organizations’ worst fears, and these groups largely celebrated Tuesday’s ruling. This was their second court victory this month, after a decision earlier this month that salvaged what’s left of the Voting Rights Act. 

Both cases could have thrown a major wrench into how U.S. elections are run but a majority of justices chose to mostly uphold the status quo. 

“This is the second time this month that the Supreme Court has ruled in favor of protecting our democracy through voting rights,” Maya Wiley, president of The Leadership Conference on Civil and Human Rights, which filed an amicus brief in this case, said in a statement. “We will continue the fight to ensure all of us can participate in our democracy and hold accountable the elected officials who abuse their power.”

The post Supreme Court Refuses to Empower State Legislatures to Run Elections as They Please appeared first on Bolts.

New Jersey Governor Phil Murphy announced last month that he was nominating Michael Noriega, an immigration and criminal-defense lawyer, to the state’s supreme court. If confirmed by the Senate, as seems likely given the reception so far, Noriega would be the Democratic governor’s fourth appointment on the seven-member court. 

Noriega would also be the first former public defender to join the New Jersey Supreme Court in the state’s history.

Amol Sinha, executive director of the ACLU of New Jersey, expects this milestone to enrich the court’s deliberations. 

“Having someone like Mike Noriega, who has been a public defender, has represented people with lesser means, and has represented immigrant New Jerseyans, will bring necessary perspectives to the court,” he told Bolts. “An increase in diversity on the bench–in terms of race, immigrant history, and professional experience–is powerful.”

In his speech, Murphy didn’t shy away from Noriega’s public defender background, highlighting this work as a key reason for selecting him. “Public defenders see firsthand how the law impacts ordinary people,” Murphy said. “More often than not, they represent individuals from our most marginalized communities in their greatest moment of need.”

“That is an obligation we hold sacred because in America every defendant is guaranteed legal representation regardless of their ability to pay. It doesn’t matter if you’re rich or poor, powerful or powerless,” he added. 

He also highlighted Noriega’s background as the child of Peruvian immigrants, praising his life as a “quintessentially Jersey story.” Noriega would be the court’s only Hispanic justice.

Murphy’s selection and words were signs of how quickly the ground is shifting for judicial nominations.

Judicial nominees nationwide and historically are far likelier to have built their career as prosecutors and in corporate law firms than representing indigent defendants. But progressives have called for more professional diversity on the bench and, with particular attention given to judges with experience in public defense and civil rights litigation. President Biden has responded by considerably expanding who makes it on the federal bench, getting more former public defenders confirmed to circuit courts in two years than President Barack Obama did in eight, let alone President Donald Trump. 

Justice Ketanji Brown Jackson, Biden’s sole U.S. Supreme Court appointment, is a former public defender, as is Judge Arianna Freeman, the first judge he selected for the U.S. Court of Appeals for the Third Circuit, which covers New Jersey.

Most governors have not followed suit and public defenders are still largely missing from state supreme courts, as Bolts reported last year, but the tide is turning in some states. Governors in Oregon and Washington added public defenders to the bench, and progressives are pushing back elsewhere. New York’s Democratic Governor Kathy Hochul recently saw her judicial nominee Hector LaSalle, a former prosecutor, defeated in the Democratic-led Senate, in part over concerns about his record on criminal justice. Nonetheless, a majority of the members of New York’s highest court are former prosecutors and none have worked as a public defender.

Similarly, in New Jersey, three of the justices are former prosecutors. Noriega would break that streak.

Parimal Garg, the governor’s chief counsel, credits Biden’s work on the issue from before he even took office. Biden stressed to senators that he would be seeking to enhance demographic and professional diversity—including, specifically, public defenders—in his judicial nominations. 

“I think if you’re looking at a seven-member body, you really want a court that reflects the totality of the legal profession,” Garg told Bolts, referring to the New Jersey high court. “It’s a recognition of the fact that, if you spent a large part of your career as a public defender, you’re going to have a very different perspective on the criminal justice system than if you had spent the majority of your career as a prosecutor.”

The absence of experiential diversity, he added, can harm the court. Without it, “it becomes challenging for that court to come up with jurisprudence that really understands where everyone is coming from in terms of the different roles that people have to play.” 

Jennifer Sellitti, training director at the New Jersey Office of the Public Defender, used to work with Noriega in the Essex County defenders’ office and says she is happy for him personally. She is also glad to see that someone who worked in a public defender’s office may join the supreme court.

“The fact that that Mike Noriega has sat next to a person to whom he was appointed, to whom he had built a relationship of trust and understanding, and handled those kinds of cases before the court, it just gives him a window and a perspective that is something that, quite frankly, up until now our court had been lacking,” she told Bolts.

If confirmed, Noriega would take the seat of Barry Albin, who was seen as a leading liberal voice on the court until he reached the mandatory retirement age of 70 in 2022. Albin worked as a prosecutor early in his career but also had substantial criminal-defense experience—though not public defender experience—before joining the court in 2002. Garg said that Murphy “thought that Mike [Noriega]’s experience and values really made him an ideal successor to Justice Albin.” Among other reasons, Albin had been president of the New Jersey Association of Criminal Defense Lawyers, and Noriega was the association’s president-elect at the time of his nomination.

Albin told Bolts that someone with Noriega’s background will benefit the court. “I believe that Michael Noriega is going to give a different, unique viewpoint—from a person who has mostly specialized in immigration work and criminal defense work,” he said. 

“Experience makes a difference,” he added. “Currently on the state supreme court, there are three former assistant United States attorneys.” 

Albin said his own work as a criminal defense attorney and other aspects of his career were important to his tenure on the supreme court. “I found that to be very helpful in the discussions that we had on the court. I was able to provide knowledge that other members of the court did not possess. And that was true of other members of the court, who had specialized in other areas of the law, who were able to inform me and others from their perspective,” he said. “That doesn’t mean that other members of the court necessarily assent to whatever somebody else is saying, who may have specialized in a particular area of law, but it certainly informs deliberations on the court, makes discussions much more rich, and much more informative.”

In a rare study of the effects that former public defenders can have on the bench, two political scientists found last year that former public defenders are less likely to sentence people to long prison sentences. In the early stages of the COVID-19 pandemic, the New Jersey Supreme Court issued important decisions that helped relieve the prison population, though it has also taken a cautious approach to issues touching criminal justice.

Adding Noriega’s perspective could be important in future cases likely to come before the court, Sellitti, from the public defender’s office, said. 

“I’m really excited about having his voice on the court when it comes to Fourth Amendment issues, cases that involve discussions of race and systemic racism,” she told Bolts, before also mentioning cases that touch police accountability, discovery, and immigration detention.

In some ways, the New Jersey Supreme Court is an easier court than most to advance this changed perspective because the court itself already has, as an essential element of its organization, an appreciation for what Albin called “institutional balance.” 

“There is an unwritten rule in New Jersey that there has to be a political balance,” he said. “So there cannot be more than four members of one party on the court at any one time. And that has been respected by every governor” since New Jersey updated and modernized its state constitution in 1947. 

What that means in practice is that Murphy has already appointed one Republican to the bench, Justice Douglas Fasciale, and is likely to appoint a second when Justice Lee Solomon reaches the mandatory retirement age of 70 in 2024. Because of this system, virtually all of the lawyers Bolts talked with about the nomination said that New Jersey’s court and nominations tend to be less partisan than at the national level and in other states. 

Still, Murphy’s earlier nomination to the court stalled for a very long time. As his first nominee to the court in 2021, the governor chose Rachel Wainer Apter, a former advocate with the ACLU, but a Republican state senator from Apter’s home county blocked her confirmation for more than a year under a convention in the state Senate known as senatorial courtesy, Bolts and The New Jersey Monitor reported last year.

Apter was confirmed in October as part of a deal that also involved the confirmation of Fasciale. 

Noriega is unlikely to face similar delays. He has the support from all of his home-county senators, including Republican Jon Bramnick, who is Noriega’s law partner. 

The governor’s office says it hopes for quick consideration of Noriega’s nomination in coming weeks, and Garg is looking forward to Noriega’s voice—and experience—being added to the court. 

“All of them bring something very different to the table,” he said, “and we think that’s really important.”

The post New Jersey Is Poised for Its First Ever Public Defender Justice 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.

Associate Judge Rowan Wilson, a progressive jurist who is already a member of the court, will replace DiFiore as Chief Judge. Caitlin Halligan, a well-known private lawyer who served as New York’s solicitor general in the 2000s, will take Willson’s seat as associate judge.

Liberals hope that these changes push the court to the left. Over the past several years, they’ve watched with frustration as a bloc of four judges, enough for a majority on this seven-person court, consistently sided with corporations, police, and prosecutors, leaving progressives like Wilson to write dissents in cases that tested matters’ like workers’ ability to seek damages or law enforcement’s power to conduct warrantless searches. 

Now Wilson, the state’s first Black chief judge, will enjoy new prerogatives to shape the state’s vast judicial branch to his liking—a chief judge has influence over the rules for other courts and authority to appoint people to key positions like the Commission on Judicial Nominations—and progressives have vocally celebrated his promotion ever since Hochul announced it last month. 

“Rowan Wilson, at least in his opinions, has signaled that he’s really attuned to the needs of the most vulnerable New Yorkers,” said Noah Rosenblum, a law professor at NYU Law. “There are reasons to anticipate that he will use his powers as chief judge to try to make the administrative machinery of New York courts more responsive to those values.”

But when it comes to the raw math on upcoming rulings, it’s Halligan who matters. Hers will be the new vote with the power to flip outcomes when she votes differently than DiFiore would have. And even if she does end the conservative bloc’s predictable control of the court, how consistently she sides with its liberal members is a separate question; besides Halligan, the court presently has three more right-leaning members, two judges who typically lean left (including Wilson), and one who is often a swing vote. 

How exactly Halligan reshapes this intricate balance remains to be seen, in part due to a legal question that surrounds her nomination, and also due to her career being something of an ideological Rorschach test for court observers.

When I told Rosenblum I was setting out to ascertain how her nomination may affect the court’s future cases, he quipped, “I don’t envy you.”

Just three months ago, the landscape in the state Senate looked dramatically different. Progressive groups in December rallied against Hector LaSalle, Hochul’s first choice to replace DiFiore. Within days of Hochul’s announcement, reproductive rights organizations, unions, and criminal justice reform advocates denounced LaSalle’s past rulings on abortion, defendants’ rights, and labor. Half-a-dozen Democratic senators said they opposed him within a day; and in January, most of the Democratic caucus voted against him when the state Senate rejected him.

No such tumult greeted Halligan. Her confirmation process was comparatively very quiet, and her confirmation this week was backed by nearly all Democratic senators. (Many Republicans opposed it.) 

It’s not that progressives rallied behind her enthusiastically. When I asked LaSalle’s critics about Halligan, they often began by offering lengthy praise for Wilson, whom Hochul announced on the same day as something like a two-judge deal. In a statement this week, Senator Jessica Ramos, who had quickly opposed LaSalle from the left in December, said she was “choosing to be hopeful” that Halligan would align with Wilson’s wing of the court. So what drove the left’s widespread attitude of guarded support?

Whereas DiFiore was a former Republican politician (though she was selected for the bench by Democratic Governor Andrew Cuomo), Halligan has long been associated with Democratic or liberal legal circles. A former clerk of U.S. Supreme Court Justice Stephen Breyer, Halligan was nominated by then-President Barack Obama in 2011 to one of the nation’s most prestigious federal courts, the D.C. Circuit. But she faced a yearslong blockade by U.S. Senate Republicans, who filibustered her on nearly-perfect party line votes. 

In the absence of many other signposts, this background has served as a sort of proxy this month for Halligan’s judicial politics. It has fueled an expectation, which I heard from a number of state sources this month, that she’ll pave the way for the court to issue more liberal rulings.

“The Obama administration thought she was liberal enough,” said Vincent Bonventre, a professor at Albany Law School who studies the New York Court of Appeals, adding that Obama’s nominees to the nation’s highest courts did tend to lean left. “So you would think that the vetting has already been done.” 

Still, some of the same groups that successfully fought LaSalle expressed caution toward Halligan. As a longtime private lawyer, Halligan has taken on many cases on behalf of corporate clients, and progressive organizations raised concerns about a number of them in recent weeks. 

While working at a law firm last decade, Halligan represented Chevron when the oil company targeted human rights lawyer Steven Donziger with a racketeering lawsuit, after Donziger helped secure billions in damages due to Chevron’s polluting activities in the Amazon rainforest. 

In 2014, Halligan represented UPS in a high-profile case, heard by the U.S. Supreme Court, in which she argued that the Pregnancy Discrimination Act does not require corporations to make accommodations for pregnancy. (The court mostly ruled in favor of Penny Young, the plaintiff.) Halligan’s work on behalf of UPS drew criticism well before her nomination to New York’s high court. The legal publication The Flaw focused on Halligan’s work in Young vs. UPS in January as part of a broad jeremiad against Big Law, to make the case that attorneys who work on behalf of corporate clients should be accountable for “fueling inequality.”

After DiFiore’s resignation, prominent senators and progressive groups had urged Hochul to choose a public interest attorney or public defender to add professional diversity to the court, which mostly includes former corporate lawyers and prosecutors. (Halligan also worked as general counsel for the Manhattan DA’s office.)

One of these organizations, the Center for Community Alternatives, urged New York lawmakers to question Halligan about the “troubling” cases on which she has worked as a private attorney, while also acknowledging that her “contradictory record” contains cases where she defended more liberal positions. The New York Immigration Coalition on Wednesday called Halligan’s nomination “concerning” due to her “controversial record as a corporate attorney.”

The only Democrat who voted against Halligan on Wednesday was Jabari Brisport, a member of Democratic Socialists of America. Brisport did not reply to a request for comment.

Halligan has replied to these criticisms by distancing herself from the content of the claims she has made on behalf of her clients. These should not be taken as an indication of her own values, she has said, or of the outcomes she would prefer to see.

“In whatever capacity I represented a client, I’ve done my best to bring to the court whatever arguments there are on that client’s behalf,” Halligan said at her confirmation hearing on Tuesday.

She did not respond to a request for an interview for this story.

Halligan made the same point a decade ago, when she faced recriminations from the other direction by U.S. Senate Republicans for defending liberal policies while solicitor general in New York. The GOP zeroed in on legal work she had conducted on behalf of New York’s effort to hold gun manufacturers accountable for gun violence, calling her an “activist.”

Halligan’s allies responded at the time by describing her as a moderate. They played up other work she did in that role that was more likely to appeal to GOP senators, such as a memo she issued in March 2004 advising local officials to not issue marriage licenses to same-sex couples, effectively shutting down a mayor in Ulster County who days earlier had done just that, at a time where a few local officials were sticking their neck out for same-sex marriage. They also insisted that, in cases like her work against gun manufacturers, she was merely doing her job: representing the interests of her client, which in that case was New York State. 

Since much of Halligan’s legal career has involved such work, though, putting all that to the side would leave few tea leaves in which to decipher her judicial philosophy. 

It also raises the question of what would even count as a tea leaf at all. At a time when judges and courts’ ability to set huge swaths of policy is so transparent, what are lawmakers and the public supposed to evaluate as indications of how Halligan will approach her new role?

“We don’t have a ton of information that we can evaluate that reflect her own particular political or jurisprudential belief, and that presents a genuine puzzle,” Rosenblum said, while adding that the information we do have—including her selection by what he called federal Democrats’ “judicial nominating machine”—is consistent with a cautiously liberal jurisprudence.

“It’s very difficult to predict what kind of Judge Halligan will be,” Peter Martin, director of judicial accountability at the Center for Community Alternatives, told me on Wednesday. “She has spent her entire career as an advocate, and she has written close to nothing that wasn’t on behalf of a client, meaning her personal values and understanding of the law are obscured.” 

Sam Bagenstos, a law professor at the University of Michigan, was the lawyer who represented Penny Young in her case against UPS nine years ago. Despite their work on opposite sides of that case, he cheered Halligan’s nomination earlier this month.

“I’ve known Caitlin for more than 25 years and, based on many experiences with her over that time, am convinced she’ll be a progressive judge,” he told me. (Bagenstos, who currently works as the general counsel for the U.S. Department of Health and Human Services, insisted that he was talking in his personal capacity.) “Obviously, nobody can doubt her legal brilliance.”

Asked for what specifically he would point to as a public indication of this disposition, Bagenstos pointed to Halligan’s pro bono work on behalf of New York tenants, defending the constitutionality of rent stabilization against landlord groups. (One of New York’s most left-wing senators pointed to the same case this week to explain why she backed Halligan’s nomination.) 

On its face, this case is similar to the others: Halligan was working on behalf of her clients.

But Halligan said this week that her pro bono cases can offer unique insight into her values. They are all, after all, work she is choosing to do for free. Such cases, Halligan told a legal publication in 2019, “allow the [law] firm to engage in a meaningful way with matters of true public interest.” Other pro bono work from Halligan’s includes writing briefs in defense of the Affordable Care Act or representing employees with labor recriminations against Amazon. 

“Halligan argued in her confirmation hearing that her pro bono work best illustrates the legal outcomes she personally supports,” Martin said. “We’ll find out soon enough if she was telling the truth when she said that.” 

The biggest controversy that has greeted Halligan’s nomination does not concern her record. It’s about whether it was legal of Hochul to appoint her when she did.

In New York, governors choose judges out of it on a short list presented to them by a state nominating commission. Wilson and Halligan both featured on the list prepared by the commission to fill the vacancy created by DiFiore’s resignation; but technically, Hochul selected Halligan to fill a still-hypothetical vacancy, the one that would be left by Wilson once the Senate confirmed him as chief justice. Republicans and some legal scholars argued this is unconstitutional and that Wilson’s confirmation should trigger a new vacancy and a new shortlist before Hochul can fill it. State Democrats replied by passing a law that specified that Hochul was authorized to do this; they did so after Hochul announced her nominations. 

Heading into Halligan’s confirmation hearings this week, Republicans threatened to sue to block Halligan from joining the court. But The Times Union reported on Wednesday that the GOP did not file a lawsuit before Wednesday’s vote, and that it was unknown whether they could and would still do it in the future.

Hochul’s dual move sped up the process by months, and its apparent success brings the Court of Appeals back to full capacity for the first time since July. 

Bonventre, for one, expects the combination of Wilson’s promotion and Halligan’s arrival to make a significant political difference. 

“The court in recent years has been much more conservative than in the past,” he said. “I don’t think it will become a left-wing court, but will this court be more sympathetic to the rights of the accused? I think unquestionably. Workers’ rights? Unquestionably. Consumer rights? Unquestionably. The rights of people who’ve been harmed by others? Unquestionably.”

But the highest-profile case that awaits Halligan does not fit into these categories. It’s Hochul and other New York Democrats’ recent plea in state court to have another shot at drawing the state’s political maps. Last year, the Court of Appeals struck down Democrats’ gerrymanders in a 4-3 ruling, with DiFiore in the majority and Wilson in dissent, and ordered a trial court to draw remedial maps; this greatly helped Republicans in the midterms. If Halligan approached the issue differently than DiFiore and authorized a second bite at the redistricting apple, it may swing several U.S. House seats in 2024—and it could also affect control of Congress.

With that case still on the horizon, Democratic state senators this week celebrated Halligan for joining the court. “I’m sure the court can become the best appellate court in the nation with her on the bench,” Brad Hoylman-Sigal, who chairs the Judiciary committee, said on the floor. 

It’s become a core tenet of present-day progressive legal advocacy that state appellate courts could provide an antidote to the breathtaking conservative takeover of the federal bench. That view took off during the Trump presidency but has intensified since the Dobbs ruling in June.

Halligan signaled this week that she agreed with that notion, in what may have been her strongest hint of how she’d approach her new position.

“State courts are where the issues that are most important to the day-to-day lives of New Yorkers get decided,” Halligan told the Judiciary Committee during her confirmation hearing. “And it is where the scope of the New York constitution gets hammered out, a task that is especially important at a moment when federal courts appear to be pulling back on some key constitutional protections.”

The post New York’s Highest Court Takes a Step to the Left, Maybe appeared first on Bolts.

Their cursed streak ended on Tuesday. Janet Protasiewicz, a Milwaukee judge who ran with Democratic support, won the seat of a retiring conservative justice after a heated campaign that pulverized national spending records.

Her victory hands liberals a majority on the supreme court for the first time since 2008. They will keep it until at least 2025, when Justice Ann Bradley’s term expires. 

Protasiewicz easily beat her conservative opponent, former Justice Dan Kelly. She leads by 11 percentage points as of Wednesday morning, a feat powered by huge margins and comparatively strong turnout in Milwaukee and Madison’s Dane County, the state’s two urban cores.

Turnout in Dane County on Tuesday was at least 50 percent higher than in 2019, when conservatives scored a narrow win to retain the court. In past elections, liberals fell short due to paltry turnout among their base; off-year races tend to favor more conservative candidates. But the issue of abortion dominated the campaign this year and likely helped mobilize voters in Protasiewicz’s favor. She heavily featured her support for reproductive rights in her campaign ads, while anti-abortion groups rallied around Kelly.

“I always said we have to hit rock bottom before people realize what’s going on here, and I think we’re there,” Christine Sinicki, a Democrat who represents Milwaukee in the state House, told Bolts last week. “If they can strip away our rights to control our own healthcare, what’s next?”

Now the court’s flip could pave the way for abortion rights to return to Wisconsin. The newly-liberal majority makes it far more likely that the court strikes down the state’s 1849 ban when it hears a lawsuit that is working its way through state courts, much like other state courts have done since the fall of Roe last summer. 

As conservatives have solidified control on the federal judiciary, civil rights organizations have looked toward state courts and state constitutions as an alternative pathway of litigation. “State courts are getting so much attention because they can—and often do—interpret their own state constitutions in ways that differ from federal constitutional doctrine,” says Miriam Seifter, the co-director of the State Democracy Research Initiative at the University of Wisconsin-Madison law school. 

“State constitutions typically contain more rights than the federal constitution, and they prioritize democracy,” she added. 

Democrats hope that the new supreme court majority also changes course on matters relating to ballot access and voting rights. Last year, the conservative justices issued a 4-3 ruling that banned the use of drop boxes. They also required that the state use a “least change” approach when redistricting, dashing Democrats’ hope of moving away from the heavily skewed maps that locked them out of power through the 2010s.

As a result, Wisconsin districts are among the nation’s most gerrymandered. Its legislative maps virtually guarantee that Republicans will secure majorities in the state Assembly and Senate, even if Democratic candidates get more votes. While Democrats hold other statewide offices, like governor and attorney general, they have also been constrained to winning just three congressional districts out of eight in this divided state. 

But while gerrymandering has made the GOP’s stronghold on Wisconsin’s state government largely election proof, the supreme court race gave Democrats a rare opportunity to crack this wall. State advocates have already signaled that they will challenge the current maps, which Protasiewicz has called “rigged,” based on provisions in the state constitution.

“There’s really only one path in the next several years to undo the most extreme gerrymander in the country, and that’s the April supreme court race in Wisconsin,” Ben Wikler, head of the Democratic Party of Wisconsin, told Bolts earlier this year. 

If the newly liberal court majority forces new maps, it may help Democrats compete for legislative power in the state. It would also affect the national battle for Congress in 2024.

Republican lawmakers have signaled that they will use their gerrymandered majorities to fight the court. Several Republican said in the run-up to Tuesday, before Protasiewicz even won, that they would consider impeaching her and removing her from office.

The GOP needs a supermajority in the state Senate to pull off that move and the resignation of a longtime Republican senator late last year left them one vote short. The special election to replace her was also held on Tuesday in a red-leaning district in the Milwaukee suburbs, and Republican Dan Knodl narrowly prevailed, handing the GOP sufficient votes to impeach and remove public officials on party-line votes. 

Such a move may be politically and constitutionally explosive but Republican lawmakers may be largely insulated from electoral consequences as long as they head off any new judicially-ordered maps that curb their power in the statehouse. In Ohio last year, prominent Republicans similarly considered impeaching their chief justice after she voted to strike down GOP-drawn gerrymanders in 2022 but she was already set to retire that year.

Should there be a vacancy on Wisconsin’s supreme court, the governor is entitled to appoint a new justice. The governor through January 2027 is Democrat Tony Evers. Republicans have also floated targeting other officials like Milwaukee’s prosecutor; no public official has been impeached in Wisconsin since the 1850s, according to the Milwaukee Journal Sentinel.

Liberals on Tuesday also scored another judicial win, this one for the Appeals Court, with labor lawyer Sara Geenen ousting conservative incumbent Bill Brash. Democrats won other local elections from Racine to Outagamie County.

The supreme court race saw extraordinarily levels of spending, more than tripling the previous national record set by a judicial race. Billionaires donated millions in support of both candidates, and outside groups poured in money as well, taking advantage of lax campaign finance rules. 

Judicial elections in Wisconsin are technically nonpartisan, but political parties are heavily involved on behalf of the candidates. Kelly, who was appointed to the supreme court in 2016 by then-Republican Governor Scott Walker, has close ties to the GOP and advised the party on a proposed scheme of installing fake presidential electors after the 2020 election.

Kelly amassed a record that was broadly hostile to civil rights and friendly to prosecutors and law enforcement while on the court between 2016 and 2020, when he was ousted by liberal challenger Jill Karofsky. During that campaign, Kelly demonized Karofsky as a danger to public safety. Three years later, he recycled that same playbook against Protasiewicz—once again unsuccessfully. 

Republican advertising lambasted Protasiewicz over crime, alleging that as a judge she offered too lenient sentences against defendants. “Law enforcement’s hands are tied when judges like Janet Protasiewicz refuse to hold dangerous criminals accountable,” one sheriff, Dodge County’s Dale Schmidt, says in a Kelly ad. (In Chicago, just south of Wisconsin, another prominent candidate who anchored his campaign on law enforcement support also lost on Tuesday.)

Last week, Kelly was endorsed by another Republican sheriff, Racine County’s Christopher Schmaling. A prominent far-right figure, Schmaling has threatened local election administrators with prosecution since 2020, amplifying the efforts by many conservatives to spread false conspiracies about Donald Trump’s loss in the state. 

Election deniers have harassed public officials like Green Bay Mayor Eric Genrich, a Democrat who has faced an ethics complaint and a recall effort for accepting an outside grant to help run the 2020 elections during the pandemic—as did hundreds of localities across the state of Wisconsin and around the nation. 

Genrich was also on the ballot on Tuesday, running for re-election in Green Bay, the state’s third most populous city, against a Republican challenger. He prevailed, riding the coattails of Protasiewicz’s strong performance in the region.

Editor’s note: The piece was edited on April 5 with the result in Wisconsin’s legislative special election. 

The post Liberals Flip the Wisconsin Supreme Court After Fifteen-Year Wait appeared first on Bolts.

In the church vestibule, someone had put out free “Justice 4 Wisconsin” spice packets from the outspokenly progressive spice company Penzeys, which is headquartered in the Milwaukee area and has trademarked the phrase “Season liberally.” “Wisconsin’s Republicans lie and cheat, and when we stay silent they win,” says the messaging on the packet. “Speak out for Justice, our environment, a fair playing field for all, and the importance of voting April 4.”

The event itself was nonpartisan and the candidates’ names were barely mentioned. Instead, the panelists discussed how they grapple with getting out the vote in underserved Milwaukee communities that are struggling with gun violence, underfunded schools, and food deserts.

They lamented the challenges of organizing in Milwaukee given some state conservatives’ undisguised hostility toward the voters of color who make up the majority of the city’s population. Most recently, a GOP member of the Wisconsin Elections Commission bragged to other Republicans in a January email about a successful voter-suppression campaign “in the overwhelming Black and Hispanic areas” of Milwaukee; the commissioner, Bob Spindell, refused calls to step down and has not been disciplined.

“There’s so many needs pressing our community today. When we talk about disparities in this country, Milwaukee leads the nation,” said panelist Sharlen Moore, who co-founded the local youth leadership program Urban Underground in 2000. To energize voters, “we got to get back to the block” and build community with neighbors.

Another panelist, 20-year-old activist Deisy España, shared a message that she said resonates with her peers, many of whom—like España—have immigrant parents who cannot vote. “I tell them they’re voting for their parents,” she said.

After the town hall, attendee Deborah Thompson told Bolts that in her neighborhood of Heritage Heights, a small middle-class, majority-Black community about six miles northwest of the church, she is talking with her family, friends and Bible study group about voting on April 4.

“Democracy is a big concern of mine because I do see it as under threat,” said Thompson, who is 75. To encourage people to vote, she first brings up the erosion of voting rights and the loss of ballot drop boxes, which the state supreme court disallowed last year in a 4-3 ruling. 

“If I feel safe enough, then I’ll bring up women’s rights,” she added.

Tuesday’s election will settle if conservatives keep a majority on Wisconsin’s supreme court or if it flips to the left, and all of those issues hang in the balance. Amid an outpouring of national attention and spending, the urgent questions the race will decide have dominated the campaign and its coverage. Will the state’s abortion ban from 1849 survive a legal challenge, will Wisconsin end up with fairer electoral maps for the rest of the decade, will voters regain access to drop boxes? For people who are volunteering their time on this race, these stakes are as enormous as they are self-evident.

But they also face a difficult reality. This momentous showdown is taking place in an off-year, springtime, low-turnout election, far from the energy that greets a presidential race.

Mobilizing people to come out in elections that aren’t synced with national cycles is always a challenge, and there’ve been efforts across the country to move their time. “Historically these spring elections have extremely low turnouts. This election is going to be all about who gets the people out to vote,” Christine Sinicki, a Democratic Assembly member who represents the southernmost parts of Milwaukee and some adjacent suburbs along Lake Michigan, told Bolts. 

Roughly 960,000 people statewide cast ballots in the first round in February that decided which two judicial candidates would move on to next week’s general election. That’s a huge drop from November 2020, when nearly 3.3 million Wisconsinites voted for president. It’s an especially pressing headache for liberals: The drop-off is far more prevalent in Milwaukee, an engine of Democratic politics, than in the outer ring of conservative suburbs that power Wisconsin’s GOP candidates.

As a share of all registered voters, turnout in February was 26 percent in Milwaukee County and 33 percent in the WOW counties. Within just the city of Milwaukee, it reached only 22 percent.

In Wisconsin’s nail-biters, these shifts can make all the difference. And now, control of the state’s supreme court hinges in part on whether organizers in Milwaukee persuade and help enough city residents to vote.

Restrictions that have been blessed by that same court, like the ban on drop boxes, have not helped. A Republican law adopted in 2018 also cut back early voting in Milwaukee from nearly six weeks to two weeks before an election. That makes it harder for working families in Milwaukee to find time to vote, Sinicki said. “There’s a lot of people out there working two jobs who just can’t get there on Election Day.”

Even within the city of Milwaukee, turnout is not spread evenly. According to an analysis by Marquette University researcher John Johnson, Milwaukee’s overall voter turnout in recent years has declined, with the biggest losses in low-income and predominantly Black and Latinx areas. That pattern held in the first round in February: Turnout varied wildly, from roughly 5 percent of registered voters in some wards to roughly ten times that rate in more affluent neighborhoods.

In the ward that contains St. Gabriel Church of God in Christ, turnout reached only 12 percent in February—down very precipitously from where it stood in the November midterms, 51 percent.

LaToya White, another panelist in the town hall, pointed to the disparities felt by residents on the north side of Milwaukee, especially younger people. “Being an organizer, you’re in the community every day, and you see our youth,” she said. “They feel like they’re left out.”

White works at Wisconsin Voices, a community organization that promotes civic participation; she saw “amazing” engagement here last fall but this has not carried into the judicial race. “This election is so quiet,” she said. “A supreme court race to them, they don’t see how important this is and don’t know that this election here is one of the most important out of the next ten years.”

In a race where so much is at stake, organizers and party representatives aren’t sticking to one issue to energize voters.

“A lot of people until recently I don’t think understood the importance of the supreme court and how important it was to our day-to-day lives and our rights,” Sinicki said. “People are finally waking up. I always said we have to hit rock bottom before people realize what’s going on here, and I think we’re there. If they can strip away our rights to control our own healthcare, what’s next?”

A lawsuit against the state’s abortion ban is working its way through state courts, and Janet Protasiewicz, the liberal candidate in the race, has campaigned on her personal support for abortion rights. Last week, in her only public debate with her conservative opponent Daniel Kelly, Protasiewicz said, “If my opponent is elected, I can tell you with 100 percent certainty, that 1849 abortion ban will stay on the books.” 

For reproductive rights advocates, anger over the ban is tied in with concerns about democracy in Wisconsin. There is no plausible path for Democrats to overturn it legislatively because Republicans have maintained ironclad control over Wisconsin’s legislature thanks to the heavily gerrymandered electoral maps they have drawn. The maps are widely considered some of the most skewed in the country. Sam Munger, an election consultant and panelist at the town hall, said the maps have “rendered voting largely irrelevant.”

But the supreme court election is a statewide race, so it offers Wisconsinites the opportunity to vote outside the confines of those gerrymanders. Protasiewicz has called the state maps “rigged” and many Democrats hope that a liberal court could strike them down. 

Protasiewicz’s supporters talk up the election’s implications for the future of voting rights. The Democratic Party of Wisconsin held a “Voting Rights Panel” in mid-March on Milwaukee’s north side to address issues of gerrymandering and voter suppression, in the presence of prominent Democrats like former Lieutenant Governor Mandela Barnes, who lost the U.S. Senate race last fall.

Conservatives are mobilizing around the same issues. Wisconsin’s leading anti-abortion groups have rallied around Kelly. 

Scott Presler, a young, pro-Trump conservative from Virginia and founder of the Super PAC Early Vote Action, has spent the last couple of weeks in Wisconsin, door-knocking and making appearances to get out the Republican vote for Kelly, with the long-term goal of advancing what he calls “election integrity” in swing states to ensure a win for Trump in 2024. On a March 16 episode of Steve Bannon’s War Room show, Presler called the April 4 election “one of the most consequential elections in Wisconsin history” because of the state supreme court’s control over voter access issues like ID and proof-of-residency requirements.

“If the liberals are able to win on April 4, we will have unmanned drop boxes in Milwaukee and Madison going into the 2024 election,” he warned. The morning after the first day of early voting last week, Presler took to Twitter to celebrate strong turnout numbers in conservative Waukesha County and to call on people to vote in a string of counties that did not include Madison and Milwaukee.

Other Republicans are also treating Milwaukee, where Protasiewicz serves as a local judge, as a foil for the rest of the state. That’s a frequent campaign tactic for the GOP in Wisconsin. Some are already floating impeaching her over her work as a Milwaukee judge if she wins. (On the same day as the supreme court race, a special election for a state Senate seat will decide if the GOP has the Senate supermajority it would need to remove a state official on a party-line vote.)

The judicial race is ostensibly nonpartisan but Democratic groups are backing Protasiewicz and Republican groups are supporting Kelly, a lawyer who used to sit on the state supreme court and has a long history in conservative politics.

Money has poured into the race, reflecting national interest but also lax campaign finance rules that allow for massive expenditures. Total spending in the supreme court race is already near $45 million with a week to go, according to WisPolitics, which triples the national record for a judicial election.

That includes at least $15 million in independent spending since Jan. 1, according to the Wisconsin Ethics Commission. Groups supporting Protasiewicz have a slight edge in spending as of publication, but far more of the money on the liberal side has gone directly into the candidate’s campaign coffers. Billionaires George Soros and J.B. Pritzker, the Illinois governor, are among the largest liberal donors, while conservatives include megadonors Richard and Elizabeth Uihlein and Federalist Society co-chairman Leonard Leo. People and groups with ties to the efforts to overturn the 2020 presidential election have also donated millions to help Kelly. 

But as the panelists of the St. Gabriel Church town hall attested, that noise isn’t heard equally in all parts of the state. 

After the March 18 town hall, a few groups of volunteers left to canvass nearby. They handed out nonpartisan fliers that listed general election and early voting information.

Milwaukee resident Jodi Delfosse, 55, took a stack of fliers and walked up and down a nearby block knocking on doors. It was a finger-numbing 16 degrees and the weather switched disorientingly between blizzard-like snow and clear sunshine every few minutes. She was met mostly by Ring security systems, with residents answering the door through their intercom, and a few face-to-face interactions. In a friendly voice, one resident told her through a closed door to leave the flier outside because “I’m not dressed.”

These obstacles to reaching voters door-to-door was one reason Linea Sundstrom started Supermarket Legends, a nonpartisan Milwaukee voter advocacy group that is run exclusively by volunteers, mostly retirees. They pass out informational literature and register voters outside local supermarkets and food pantries, at bus stops, on college campuses and on public sidewalks or outside any business that gives them permission.

“Everybody has to eat, and what we’re trying to do is go where people are instead of expecting them to come to us,” she told Bolts. The group’s flier for the supreme court race does not advocate for a candidate but identifies issues with a series of questions, such as “Is the 1849 abortion ban right for Wisconsin today?” and “What regulations are right for tap water?”

Supermarket Legends focuses on low-turnout areas and wherever “people don’t have a lot of resources,” Sundstrom said. They pay attention to where other groups are working and “try to fill in the gaps.” Right now, she said, the biggest gap is on the near-south side, a predominantly Latinx area where voter turnout outside of major elections is typically very low. 

Sundstrom described her group’s work in a ward where only 29 people voted in February, which is only 6 percent of registered voters. “One person standing in front of El Rey Supermarket on the south side can talk to 60, 70 people an hour, face to face,” Sundstrom said. 

Sylvia Ortiz-Velez is a Democratic lawmaker who represents the Wisconsin Assembly district with the highest share of Latinx residents in Wisconsin. Two weeks out from the runoff, she was canvassing her constituents in Milwaukee’s Polonia neighborhood, which is located about three miles south of the El Rey supermarket. Voter turnout is reliably higher in this neighborhood—26 percent in the primary—as is household income.

Going door to door is a way to reach the registered voters who regularly vote because they are the “lower-hanging fruit” of any get-out-the-vote campaign, she said. Plus “you learn a lot about what’s landing.”

At one house, the barrel-chested 64-year-old who opened his door to Ortiz-Velez already had his mind made up about the two candidates. “Get rid of ’em both. They’re wishy-washy. We need law and order,” he told her. He was wearing a National Latino Peace Officers Association T-shirt. He said Protasiewicz is too soft on crime, echoing GOP attacks. He called Kelly, who was paid by state Republicans to advise them in a covert scheme to overturn the 2020 election, “a crook.”

Then he added: “The one thing I like about (Protasiewicz) is giving women their rights.”

This comment surprised Ortiz-Velez. “In my district, abortion might come up, but it might not come up. It’s not something I would lead with,” she told Bolts. “Most of the people in our community make maybe $35,000 per year and work very hard for their families and they’ve always had to do a lot with less.” If she has time, she said she’ll “absolutely talk” with voters about gerrymandering, rigged district maps and voter access.

Here in Polonia, Ortiz-Velez made sure to mention that Protasiewicz is homegrown—she grew up on the south side, her parents are buried in a nearby cemetery and she attends a Catholic church about eight blocks away.

As she walked, she consulted a canvassing app on her phone called MiniVAN. It tells her the name, age and voting history of registered voters on the block. 

“Back in the day we put this all on index cards,” she said.

Ortiz-Velez has been canvassing in the district for over 20 years. Some things have not changed. “My father was an evangelist and he always told me, ‘Smile, smile, smile,’” she said outside one house while waiting for an answer at the door.

The post “This Election Is So Quiet”: Inside the Scramble to Mobilize Milwaukee in a High-Stakes Judge Race appeared first on Bolts.