As Stakes Rise, State Supreme Courts Become Crucial Election Battlegrounds

WASHINGTON — State supreme court races, traditionally Election Day afterthoughts, have emerged this year as crucial battlefields in the struggle over the course of American democracy, attracting a torrent of last-minute money and partisan advertising.

In Ohio, an arm of the national Democratic Party funneled a half-million dollars last month into a super PAC backing three Democratic candidates for the high court. In North Carolina, a state political action committee with ties to national Republicans gave $850,000 last week to a group running attack ads against Democratic state supreme court candidates.

On another level entirely, Fair Courts America, a political action committee largely bankrolled by the Schlitz brewing heir and shipping supplies billionaire Richard E. Uihlein and his wife, Elizabeth, has pledged to spend $22 million supporting deeply conservative judicial candidates in seven states.

The motivation behind the money is no mystery: In states like Ohio, North Carolina and Michigan, partisan control of supreme courts is up for grabs, offering a chance for progressives to seize the majority in Ohio and for conservatives to take power in North Carolina and Michigan. In Illinois, competing billionaires are fueling court races that offer Republicans their first chance at a Supreme Court majority in 53 years.

The implications of victory are profound. As the U.S. Supreme Court continues to offload crucial legal questions to the states, state courts have abruptly become final arbiters of some of America’s most divisive issues — gun rights, gerrymandering, voting rights, abortion. In heavily gerrymandered states, justices have the potential to be the only brake on one-party rule.

And as Republican politicians continue to embrace election denialism, high courts could end up playing decisive roles in settling election disputes in 2024.

Undertones of politics are hardly new in state court campaigns. But the rise of big money and hyperpartisan rhetoric worries some experts.

Once, it was businesses that sought to elect judges whose rulings would fatten their bottom lines, said Michael J. Klarman, a constitutional scholar at Harvard University.

“The contest now is over democracy,” he said, “over gerrymandering, over easing restrictions on the ballot, over efforts to re-enfranchise felons.”

“It’s not a stretch to say the results affect the status of our democracy as much as what the Supreme Court does,” he said.

Many judicial candidates shy away from being perceived as politicians. Even candidates in hotly fought races tend to follow legal ethics guidelines limiting statements on issues they might have to decide.

But others can be increasingly nonchalant about such perceptions.

State Representative Joe Fischer is openly running for the nonpartisan Kentucky Supreme Court as an anti-abortion Republican, with $375,000 in backing from a national G.O.P. committee whose ads cast him as a firewall against the “socialist agenda” of President Biden. Fair Courts America is pouring $1.6 million into backing him and two others seeking judicial seats.

The three Republicans on the Ohio Supreme Court ballot — all sitting justices — raised eyebrows by appearing at a rally in Youngstown on Sept. 17 for former President Donald J. Trump, who repeated the lie that the 2020 election “was rigged and stolen and now our country is being destroyed.”

Mr. Trump singled out the three for praise, saying, “Get out and vote for them, right? Vote. Great job you’re doing.” Later, two of the three declined to confirm to The Columbus Dispatch that the 2020 election results were legitimate, saying judicial ethics forbade them from commenting on issues under litigation. (The state ethics code indeed bars comments on pending legal issues in any state, though its scope is unclear. A spokesman for the candidates said a challenge to the election had recently been filed in Michigan.)

Three weeks later, Cleveland television station WEWS reported that the three had stated on candidate surveys compiled by Cincinnati Right to Life that there is no constitutional right to abortion — an issue under review, or sure to be reviewed, in state courts nationwide.

“People are starting to feel like judges are nothing more than politicians in robes,” said William K. Weisenberg, a former assistant executive director of the Ohio State Bar Association. “What we see evolving now — and it’s very, very dangerous for our society — is a loss of public trust and confidence in our justice system and our courts.”

The battles reflect the rising stakes in rulings over voting and electoral maps that conceivably could determine control of Congress in close elections.

The Ohio Supreme Court voted 4-3 this year — several times — to invalidate Republican gerrymanders of state legislative and congressional districts. Those maps remain in effect, under federal court order, but the court chosen this month will decide whether new maps that must be drawn for the 2024 election are valid.

In North Carolina, another 4-3 vote struck down Republican-drawn gerrymanders in January, changing a map that guaranteed Republicans as many as 11 of 14 congressional seats into one that split the seats roughly equally.

Michigan’s court ordered an abortion-rights referendum onto the November ballot after a canvassing board deadlocked along party lines on Aug. 31 over whether to do so. The next Supreme Court in Illinois is likely to decide disputes over abortion and gun rights.

The courts’ role has also been amplified as political norms have lost sway and some legislatures have moved to expand their power.

In Wisconsin, the Republican-gerrymandered State Senate has given itself broad authority over the composition of state boards and commissions simply by refusing to confirm new board members nominated by Gov. Tony Evers, a Democrat. The state court upheld the tactic by a 4-3 vote along ideological lines in June, allowing Republican board members to keep their seats even though Governor Evers has statutory power to nominate replacements.

Not all states elect members of their highest courts. Governors fill most of the 344 posts, usually with help from nominating commissions, though that hardly takes politics out of the selection.

In the 22 states that elect judges — some others require periodic voter approval of judges in retention elections — most races are fairly free of mudslinging and big-ticket intervention by outside groups.

But rising politicization nevertheless has had a measurable and growing impact.

Since in the late 1980s, voters’ choices in state supreme court races have aligned ever more consistently with their political preferences in county elections, the University of Minnesota political scientist and legal scholar Herbert M. Kritzer found in a 2021 study.

“At this stage,” he said, “identification with the parties has become so strong in terms of what it means for people that I don’t know if you’ve got to say another thing other than ‘I’m a Republican’ or ‘I’m a Democrat.’”

An analysis of social science studies by the Brennan Center for Justice at New York University also suggested that campaign pressures influence how judges rule. The analysis found that judges facing re-election or retention campaigns tended to issue harsher rulings in criminal cases.

One telling statistic: Over a 15-year span, appointed judges reversed roughly one in four death sentences, while judges facing competitive elections — which frequently are clotted with ads accusing them of being soft on crime — reversed roughly one in 10.

If past elections are any guide, the final days of midterm campaigning will see a deluge of spending on advertising aimed at drawing voters’ attention to contests they frequently overlook.

Many ads will be negative. Indeed, ads financed by outside groups — virtually all focused on abortion rights or crime — markedly resemble ones for congressional or statewide offices.

Ohio is typical. In one commercial run by a PAC representing the Ohio Chamber of Commerce, a young girl with a backpack strolls down a neighborhood street. An announcer warns: “There’s danger among us. Jennifer Brunner made it easier for accused murderers, rapists, child molesters to return to our streets.”

Another ad, by the progressive PAC Forward Justice, reprises the recent story of a 10-year-old Ohio girl who had to leave the state to obtain an abortion after being raped. An announcer adds: “Pat DeWine said women have no constitutional right to abortion. Pat Fischer even compared abortion to slavery and segregation.”

Ms. Brunner, a Democrat and an associate justice of the Supreme Court, is running to be chief justice. Mr. Fischer and Mr. DeWine, both Republican associate justices, are seeking re-election.

Candidates and interest groups spent at least $97 million on state supreme court races in the 2020 election cycle, according to the Brennan Center. Spending records are all but certain to be set this year in some states, said Douglas Keith, the Brennan Center’s counsel for democracy programs.

Conservatives have long outspent liberals on state court races. Besides Fair Courts America’s $22 million commitment, the Republican State Leadership Committee, an arm of the national party long involved in state court races, plans to spend a record $5 million or more on the contests.

Supreme Court races in Illinois are legendary for being matches of billionaire contributors — on the left, Gov. J.B. Pritzker, whose family owns the Hyatt hotel chain, and on the right, Kenneth C. Griffin, a hedge-fund manager.

But outsiders are rivaling their contributions. An Illinois group backed by trial lawyers and labor unions, All for Justice, said it will spend at least $8 million to back Democratic candidates.

Outside spending has been exceedingly rare in states like Kentucky and Montana, but even there, things are becoming more politicized. In Montana, where a 1999 State Supreme Court ruling recognized abortion as a constitutional right, conservative groups are seeking to unseat a justice appointed by a Democratic governor in 2017. The state’s trial attorneys and Planned Parenthood have rallied to her defense.

In northern Kentucky, the Republican anti-abortion candidate, Joseph Fischer, is opposing Justice Michelle M. Keller, a registered independent.

Mr. Fischer did not respond to a telephone call seeking an interview. Ms. Keller said the partisan attacks from independent groups swirling around her race were “new ground.”

“This will have a chilling effect on the quality of judges if we’re not careful,” she said. “Good lawyers, the kind of people you want to aspire to the bench, won’t do it. You can make much more money in private practice.”