Supreme court races in these 10 states are key to protecting fair elections and halting gerrymanders

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Georgia

  • Bottom line: Progressives can shrink the conservative majority on the Georgia Supreme Court from 8-1 to 5-4
  • Composition: Eight conservatives, one progressive
  • 2022 elections: Three seats up (nonpartisan)
    • Conservative Justice David Nahmias, appointed in 2009 by former Gov. Sonny Perdue (R)
    • Conservative Justice Carla Wong McMillian, appointed in 2020 by Gov. Brian Kemp (R)
    • Conservative justice to be determined by Kemp (Chief Justice Harold Melton retiring on July 1)

Following Democratic victories for the presidency and Senate in Georgia in the 2020 election cycle, progressives can build on those gains by contesting the three GOP-held seats on Georgia’s Supreme Court that will be up for election in May of 2022. (All other elections in this guide will take place in November, either this year or next.)

Georgia’s nonpartisan Supreme Court elections have often been sleepy affairs that aren’t hotly contested between the two parties, but if Democrats were to flip all three seats up next year, they would narrow the conservative majority on the court from 8-1 to just 5-4. They could then potentially take a majority on the court as soon as 2024, when three more conservative-held seats are up.

Republicans have made the task more difficult by packing the Supreme Court when they added two seats to solidify right-wing control in 2016. Georgia has also been the epicenter of GOP attempts to suppress the votes of Democrats and people of color over the last several years. Thanks to their narrow victory in the deeply tainted 2018 election for governor, Republicans are poised to pass new voting restrictions and gerrymander the legislature once more. However, a future progressive court could fight back against both of those efforts to undermine free and fair elections.

Illinois

  • Bottom line: Republicans could flip the Illinois Supreme Court from Democrats, or Democrats could expand their majority to 5-2
  • Composition: Four Democrats, three Republicans
  • 2022 elections: Four seats up in their respective districts (two partisan, two retention)
    • 1st District (retention): Democratic Justice Mary Jane Theis, appointed by the court in 2010
    • 2nd District (partisan): Republican Justice Michael Burke, appointed by the court in 2020
    • 3rd District (partisan): Open seat held by retiring Democratic Justice Robert Carter, appointed by the court in 2020
    • 4th District (retention): Republican Justice Rita Garman, appointed by the court in 2001

Illinois is one of just four states (along with Kentucky, Louisiana, and Mississippi) that elects its high court justices by district rather than statewide. However, since these districts haven’t been redrawn for over 50 years, they have become badly malapportioned (federal “one person, one vote” protections don’t apply to judicial maps) and give conservative downstate voters a disproportionate amount of power at the expense of the Democratic-leaning Chicago suburbs. Control of the court is particularly important for future redistricting efforts for congressional and legislative offices.

Two districts—one safely Democratic and one safely Republican—will each feature retention elections in 2022 that almost certainly won’t be competitive. But the swingier 2nd and 3rd Districts, which will host partisan elections, could both see contested races. In the 3rd, appointed Democratic Justice Robert Carter isn’t seeking a full term, creating an open seat and giving Republicans a strong chance to flip a district that voted for Donald Trump 51-47 in November. In the neighboring 2nd District, which backed Joe Biden 55-43, appointed Republican Justice Michael Burke is expected to run for his first full 10-year term.

One step Democratic legislators could take to make court elections fairer would be to redraw the state’s judicial districts to account for five decades of population changes. Doing so would remedy the malapportionment that has left the two conservative downstate districts with half as many residents apiece as the more suburban 2nd District and could easily turn the 3rd District from one that backed Trump into one that supported Biden.

Michigan

  • Bottom line: Republicans could flip the Michigan Supreme Court from Democrats, or Democrats could expand their majority to 5-2
  • Composition: Four Democrats, three Republicans
  • 2022 elections: Two seats up (nonpartisan with partisan primaries)
    • Democratic Justice Richard Bernstein, first elected in 2014
    • Republican Justice Brian Zahra, appointed in 2011 by former Gov. Rick Snyder (R)

Democrats gained a 4-3 majority on Michigan’s Supreme Court in the 2020 elections, flipping it from GOP control, but Republicans have an opportunity to regain power in 2022 when one justice from each party will face voters again.

Michigan approved a new independent redistricting commission at the ballot box in 2018, meaning Republicans don’t have free rein to gerrymander once again as they have for the past two decades. However, the courts could still play a big role in redistricting. For starters, the members of the commission could deadlock, which would require judges to step in and drew new maps. In addition, anyone who has a grievance against the new districts the commission might approve could wind up suing in state court.

Minnesota

  • Bottom line: Conservatives can flip the Minnesota Supreme Court from progressives
  • Composition: Five progressives, two conservatives
  • 2022 elections: Two seats up (nonpartisan)
    • Progressive Justice Gordon Moore, appointed in 2020 by Gov. Tim Walz (D)
    • Progressive Justice Natalie Hudson, appointed in 2015 by former Gov. Mark Dayton (D)

Minnesota Supreme Court elections have typically been less contentious than similar elections in other states, but there’s no guarantee that pattern will continue next year. With two Democratic-appointed justices up for election in 2022, conservative victories in both races would transform the 5-2 progressive majority into a 4-3 conservative one.

Minnesota’s courts have played a decisive role in redistricting over the last five decades since divided government has seen lawmakers fail to pass new districts. Since that state of affairs persisted following the 2020 elections (with Democrats in charge of the governorship and state House but Republicans running the state Senate), the courts are likely to step in once again. The judiciary is also likely to weigh in on matters affecting voting access, such as a lawsuit currently underway over whether people with felony convictions should regain their right to vote once they’ve served their prison sentences.

Montana

  • Bottom line: Conservatives could gain a seat on the Montana Supreme Court or progressives could gain a seat of their own to secure a clearer majority
  • Composition: Three progressives, two conservatives, two swing justices
  • 2022 elections: Two seats up (nonpartisan)
    • Conservative Justice James Rice, appointed in 2001 by former Gov. Judy Martz (R) and confirmed by the GOP-run state Senate
    • Swing Justice Ingrid Gustafson, appointed in 2018 by former Gov. Steve Bullock (D) and confirmed by the GOP-run state Senate

Montana is one of a few red states where Republicans don’t control the state’s highest court, and that’s had a real impact, because its two pivotal swing justices have sided with the three more progressive-leaning justices in some high-profile cases in recent years. With Republicans winning full control over state government in 2020 for the first time in 16 years, however, the GOP is considering a number of new restrictive voting bills, but the Supreme Court could act as a critical roadblock to these attempts to suppress the vote.

Montana has seen major spending in some court races over the last decade, but others have been relatively uncontested; it’s unclear just how competitive next year’s elections will be. 2022 will feature one conservative justice and one Democratic-appointed swing justice up for election, giving both parties the chance to gain a seat next year.

While Montana’s 2022 elections could give conservatives a chance to gain seats, Republicans don’t appear to be taking anything for granted since the GOP recently advanced a constitutional amendment in the state House that would effectively gerrymander the state Supreme Court by switching from statewide elections to elections using districts drawn by Republican legislators. If GOP lawmakers pass the amendment, it would have to win voter approval in November 2022 and thus couldn’t take effect in time for next year’s court elections.

North Carolina

  • Bottom line: Republicans can flip the North Carolina Supreme Court from Democrats
  • Composition: Four Democrats, three Republicans
  • 2022 elections: Two seats up (partisan)
    • Democratic Justice Robin Hudson, first elected in 2006
    • Democratic Justice Sam “Jimmy” Ervin IV, first elected in 2014

Republicans have made North Carolina one of the most perniciously gerrymandered states in the country over the last decade, but state courts have become a critical check on the GOP’s power to draw unfair maps, culminating in the GOP’s legislative and congressional gerrymanders getting blocked and redrawn in 2019. However, because Republicans flipped two Democratic-held seats on the state Supreme Court in 2020 by very narrow margins, the GOP now only needs to beat one of the two Democrats up next year in order to regain the majority that they lost in 2016.

Since Democratic Gov. Roy Cooper lacks the power to veto new gerrymanders, a Democratic court majority is the last line of defense against unfair districts. A Democratic majority would also likely be a crucial bulwark against new Republican efforts to restrict voting rights later this decade should the GOP regain the governor’s office when Cooper is term-limited in 2024.

Ohio

  • Bottom line: Democrats can flip the Ohio Supreme Court from Republicans
  • Composition: Four Republicans, three Democrats
  • 2022 elections: Three seats up (nonpartisan with partisan primaries)
    • Republican Chief Justice Maureen O’Connor, first elected associate justice in 2002 and chief justice in 2010
    • Republican Justice Patrick Fischer, first elected in 2016
    • Republican Justice Pat DeWine, first elected in 2016

Over the last two election cycles, Democrats have managed to flip three Republican-held seats on Ohio’s Supreme Court despite the GOP’s dominance in partisan contests over the same period. That’s put Democrats in a surprising position: If they can win just one of the three Republican-held seats that will be up for election next year, they could flip the court.

As in other states where Republicans hold both legislative chambers and the governor’s office, Ohio has seen rampant GOP gerrymandering and efforts to restrict access to voting over the last decade. While Republicans ostensibly passed redistricting reforms in 2015 and 2018, those measures were largely toothless and designed to take the wind out of the sails of activists who had been pushing for more comprehensive measures, and they will likely do little to stop another decade of GOP gerrymandering. However, if Democrats gain a majority on the bench next year, the court could put real bite into those redistricting reforms while also providing a check against Republican voter suppression efforts.

Pennsylvania

  • Bottom line: Democrats can expand their majority on the Pennsylvania Supreme Court from 5-2 to 6-1
  • Composition: Five Democrats, two Republicans
  • 2021 elections: One seat up (partisan)
    • Open seat held by term-limited Republican Chief Justice Thomas Saylor, first elected in 1997

After Democrats gained a majority on the Pennsylvania Supreme Court in the 2015 elections, Pennsylvania has been at the forefront of efforts to use progressive state courts to secure fairer elections. The court most notably struck down Republicans’ congressional gerrymander and replaced it with a fairer map in 2018. It also issued rulings to protect voting access from GOP efforts to restrict it last year during the pandemic. With one GOP-held seat coming open this year, Democrats have a chance to expand their majority to 6-1.

Both state party organizations have endorsed candidates ahead of the May 18 primary, with Democrats backing Superior Court Judge Maria McLaughlin and Republicans supporting Commonwealth Court President Judge Kevin Brobson.

Republican legislators in Pennsylvania, just like their brethren in Montana, are also plotting to pass a constitutional amendment that would de facto gerrymander the state Supreme Court by switching from statewide elections to using districts drawn by legislators. This years-long effort is the GOP’s retaliation against the court for striking down their congressional gerrymander, and Republicans have already passed the amendment in state House committee. If both chambers approve it, it could go onto the November ballot for voter approval.

Texas

  • Bottom line: Democrats can shrink Republicans’ majority on the Texas Supreme Court to 6-3
  • Composition: Nine Republicans
  • 2022 elections: Three seats up (partisan)
    • Republican Justice Eva Guzman, appointed in 2009 by former Gov. Rick Perry (R)
    • Republican Justice Debra Lehrmann, appointed in 2010 by former Gov. Rick Perry (R)
    • Republican Justice Rebeca Huddle, appointed in 2020 by Gov. Greg Abbott (R)

Texas was a major disappointment for Democrats in 2020, but long-term demographic trends mean its trajectory toward swing-state status is likely to continue. The 2022 elections may be to soon for Democrats to reap the benefits of those changing demographics, but there’s a chance that the absence of Trump on the ballot next year will see sporadic Republican voters fail to turn out and provide Democrats with an opening.

The stakes for Texas’ Supreme Court elections remain sky high. Republicans have made the Lone Star State home to the most extreme forms of voter suppression gerrymandering, which right-wing judges at both the state and federal levels have been eager to uphold. However, if Democrats could take over the state Supreme Court, they could strike down voting restrictions and distorted election districts. Flipping the three seats up next year would allow Democrats to potentially take over the court as soon as 2024.

Virginia

  • Bottom line: Progressives can shrink the conservative majority on the Virginia Supreme Court to 4-3
  • Composition: Five conservatives, two progressives
  • 2021 elections: Indirect election by both legislative chambers (currently Democratic-controlled); the full state House is up for election in 2021. Two seats will be up for legislative selection in the 2022-2023 sessions
    • Conservative Justice Bill Mims, first elected by the legislature in 2010, term expires in 2022
    • Progressive Justice Cleo Powell, first elected by the legislature in 2011, term expires in 2023

Unlike every other state on this list, Virginia doesn’t hold direct popular elections for its judges but instead selects them via a majority vote in each legislative chamber, making it the only state besides South Carolina where legislators choose appellate judges. Democrats regained control of both legislative chambers in 2019, but the GOP’s almost uninterrupted hold on both chambers over the previous two decades means conservatives currently dominate the state Supreme Court.

However, if Democrats retain their majorities this November, they could replace conservative Justice Bill Mims with a progressive alternative when Mims’ current term expires in 2022, and they could also reelect liberal-leaning Justice Cleo Powell when her current term ends in 2023. If Democrats maintain their majorities and are able to replace Mims with a progressive, they would have a chance to flip the court from a conservative to progressive majority if they also win the 2023 elections and are able to replace a second conservative justice with another progressive in 2024.

Virginia’s Supreme Court is of particular importance for redistricting because it would take over the process if the state’s new bipartisan redistricting commission fails to agree on new maps. While Democrats were divided over whether to support the GOP-backed commission when it was on the ballot last year, some of those who opposed it expressed concern over the conservative-heavy court drawing district maps that favor Republicans, although the court is still bound by state law requiring maps to adhere to specific nonpartisan criteria. However, if progressives take over the court, that concern would be alleviated in future redistricting disputes.





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