State supreme court elections used to be low-cost, sleepy races. That era is over. In many states, they are now costly and politicized battles and the role of big money, with its attendant questions of special interest influence over the courts, is growing more pronounced. During the 2015-16 cycle, states that elect their judges reached several new spending milestones.
Spending Overview: 2015-16 Supreme Court Election Cycle
Thirty-three states held state supreme court elections during 2015-16, for a total of 76 seats. 1 Nationwide, overall spending totaled an estimated $69.3 million, including candidate fundraising and outside spending by interest groups and political parties — the second highest spending level (adjusted for inflation) since this report began tracking supreme court elections in 2000. 2
Pennsylvania, which saw a remarkable $21.4 million spent in contests for three open seats in 2015, set a national record for aggregate spending in a state supreme court election. In addition, Arkansas, Kansas, Louisiana, and Montana set new state spending records.
The number of justices elected in big-spending contests in 2015-16 was also higher than ever before — an ominous development suggesting that politicized supreme court elections may be ratcheting up. More justices were elected in $1 million-plus elections during 2015-16 than in any previously recorded cycle since 2000 (inflation-adjusted) 3— 27 justices in 13 states, as compared with the previous high of 19 justices in 11 states in 2007-08. 4 Seven justices in five states were also elected in races that exceeded $3 million (Louisiana, North Carolina, Pennsylvania, West Virginia, and Wisconsin). Hitting a $1 million or $3 million threshold is significant because such races are likely to require major infusions of campaign cash by donors or a substantial investment by outside spenders and to have many of the trappings of campaigns for political offices. Notably, this cycle set records even though the number of seats up for election was both the median and average 5 for presidential election cycles since 1999-2000 (excluding retention elections). 6
Estimated Spending on State Supreme Court Races, 2015-16
|State||Candidate Fundraising||Public Financing||Outside Spending by Groups||Outside Spending by Political Parties||# of Seats||Grand Total|
The 2015 figures in this chart are lower than the totals reported in the historical charts throughout this report, because in those charts all data was converted to 2016 dollars to allow for historical comparison. The 2015 figures in this chart have not been converted to 2016 dollars.
The amount spent on television also continued to grow, with a record $36.9 million spent on TV ads in 16 states, an average of $485,607 per seat — also a record. 7 Spending on TV ads reached record levels in six states: Arkansas, Kansas, Louisiana, Montana, Pennsylvania, and West Virginia.
One exception to the upward trend was in retention elections, where documented total spending dropped this cycle, to an estimated $2.2 million, as compared to $6.5 million spent on retention elections in 2013-14. 8 One recent pattern, beginning in the 2009-10 election cycle, has been that states that use retention elections, which were historically usually low-profile elections that attracted virtually no spending, have begun to experience high-cost elections as well. Kansas’s 2016 retention elections were consistent with this trend, attracting over $2 million in total spending. However, unlike other recent cycles in which two or three states saw heavy retention election spending, during 2015-16, Kansas was the only state with expensive retention elections. 9Despite the drop, total spending on retention elections during 2015-16 was still higher than in any cycle prior to 2009-10, when the cost of retention elections first jumped. From 1999-2008, retention election spending had never exceeded $1.3 million (in 2016 dollars). 10
Supreme court elections still generally attract less money than other statewide races. 11 However, because voters typically know little about state supreme court justices, heightened spending can have an outsized impact on who reaches the bench — a series of attack ads may be the only information a voter has about a judicial candidate. 12 And because, as discussed below, interests opening their wallets for supreme court elections are frequently regular players before those very courts — sometimes with cases pending at the same time elections are taking place — this spending can create vexing conflicts of interest, threatening the appearance (and reality) of judicial integrity.
Notable Trends: Secret Money and Record Outside Spending
One of the most striking aspects of the 2015-16 cycle was the sharp rise in outside spending — most of it non-transparent — by political action committees, “social welfare organizations” incorporated under 501(c)(4) of the Internal Revenue Code, and other non-party groups, mirroring the trends in regular political races, both state and federal.
During 2015-16, outside spending by interest groups was a record $27.8 million — over $10 million more than the prior record from 2011-12. This outside spending by groups was also a much higher proportion of total supreme court election spending than ever before: 40 percent, as compared with the previous high of 29 percent in 2013-14. 13
This shift toward outside spending by interest groups has been a consistent trend since the U.S. Supreme Court’s 2010 ruling in Citizens United v. FEC, which barred restrictions on independent spending by corporations and unions, and a subsequent lower court ruling that allowed independent spenders to collect unlimited contributions. 14 In every election cycle since Citizens United, spending by outside groups as a portion of total spending in supreme court elections has set a new record. 15
One result of this rise in outside spending by interest groups is that voters have less information about who is trying to influence supreme court elections. Remarkably, only 18 percent of the dollars spent by interest groups in 2015-16 had transparent sources (meaning that the underlying donor could be easily identified from campaign finance filings). More than half of interest group expenditures were completely “dark,” meaning that the underlying donors were not disclosed at all. Weak state campaign finance laws also meant that many expenditures were never reported to campaign finance authorities in the first place: one-third of the outside spending documented in this report never appeared in state campaign finance filings. [See Chapter 2 for more details about secret spending in supreme court elections.]
While the U.S. Supreme Court in Citizens United touted “prompt disclosure of expenditures” as a way to “provide shareholders and citizens with the information needed to hold corporations and elected officials accountable for their positions and supporters,” the prevalence of secret spending highlights how gaps and loopholes in state and federal law make it easy for those seeking to influence judicial campaigns to stay in the shadows. 16 For state courts, the result is a public increasingly left in the dark about who is seeking to influence judicial decisionmaking — including when judges hear cases involving major spenders.
The rise in outside spending by interest groups during 2015-16 also corresponded with a smaller role for state political parties, whose spending made up a lower proportion of total spending than ever before. 17This diminished role for political parties mirrored broader outside spending trends at the state level. 18
“Not for Sale,” paid for by the Judicial Crisis Network. Copyright 2016, Kantar Media/CMAG.
While the benefits and costs of strong state parties are complex, the shift in power from parties to interest groups raises several accountability concerns. First, political parties are typically more strictly regulated than outside groups; for example, party organizations are often subject to campaign finance laws that do not apply to groups, including contribution limits and donor disclosure. 19 In addition, parties are repeat electoral players with a reputational interest that generally draws strength from appealing to a broad population. 20
Finally, rising spending by outside groups leaves candidates with less control over the tenor of their campaigns and may contribute to even greater negativity and politicization in supreme court elections. During the 2015-16 supreme court election cycle, 64 percent of spots aired by interest groups were negative in tone, compared with 15 percent of candidate ads (political parties aired virtually no TV advertisements). Overall, 2015-16 had far more negative TV ads than did other recent election cycles. [See Chapter 3 for more on television ads and the tenor of races.]
Profiled Races: What Factors Contribute to High-Cost Elections?
An analysis of this cycle’s state supreme court elections also suggests why certain states attract special interest attention while others do not. Many big spenders characterize their efforts as bolstering the judiciary by supporting quality candidates. Not surprisingly, however, races in which a court’s ideological control is on the line, or where the court is involved in a highly-contentious issue that is important to deep-pocketed interests, tend to be the elections that attract heavy spending. Some illustrative races from the 2015-16 cycle highlight these dynamics.
The most expensive supreme court elections during 2015-16 occurred in Pennsylvania and North Carolina, two “swing” states in national politics where state court rulings on issues like redistricting have national implications, and where the election determined the court’s ideological balance. [For details on each state’s election, see “State in Focus” for Pennsylvania and North Carolina.] Looking back, spending barrages have corresponded with shifts in the ideological composition of at least nine state supreme courts since 2000. 21
In several states, particular cases on the docket appeared to attract heavy spending, including tangles over tort reform, education funding and charter schools, and the environment. Some justices were targeted over their prior rulings on these issues, while other elections appeared focused on creating a more favorable court lineup for an upcoming case:
- In Louisiana, interests in so-called “legacy lawsuits” that seek to compel oil and gas companies to pay for restoring environmentally-damaged properties and repair coastal degradation, appeared to be an important factor in the race between lower court judges Jimmy Genovese and Marilyn Castle for an open seat on the state supreme court. While the largest outside spender in the race, the Virginia-based Center for Individual Freedom (supporting Castle), did not disclose its donors, Castle’s own contributors included oil and gas interests defending against ongoing legacy lawsuits. Genovese received outside support from the Restore Our Coast PAC, which in turn received donations from lawyers representing plaintiffs in these cases.
Another ongoing lawsuit challenging public funding of charter schools 22 was likely an additional spending driver. A newly created PAC, Citizens for Judicial Excellence, which spent over $600,000 opposing Genovese, was funded primarily by businessman Lane Grigsby, a charter school-proponent who had previously spent money on school board races and heavily contributed to a pro-charter school group, Stand for Children. 23 Genovese won the race, which saw nearly $5 million in overall spending.
- In Kansas, supposedly-nonpartisan retention elections saw unusual involvement from the state Republican party and opaque outside groups. Four of the five justices standing for retention were subject to vocal opposition from the state GOP, and groups ran attack ads criticizing the justices for voting for a new sentencing hearing in a high-profile death penalty case, a decision subsequently reversed by the U.S. Supreme Court.
While a lack of donor transparency makes it difficult to identify the underlying interests, during the election, the state supreme court was enmeshed in a lawsuit in which it had already found that the state was failing to sufficiently fund K-12 education, with a potential price tag for the state of between $400 and $900 million. 24 Even before the election, the case had generated pointed attacks against the court from the governor and several powerful legislators, as well as legislative efforts to weaken the court’s power and give the political branches more power over judicial selection. 25 A case about whether the Kansas constitution protects abortion rights was also working its way through the lower courts during the period. 26 More than $2 million was spent overall, an estimated $971,760 in support of retention and $1.1 million in opposition. The four targeted incumbent justices were retained, as was a fifth, an appointee of the state’s Republican governor who was not targeted.
- In Arkansas, a race for two open seats occurred against the backdrop of a decade-long battle over tort reform, including a 2011 decision in which one of the candidates for the Chief Justice seat, Courtney Goodson, who was already an associate justice on the high court, drafted an opinion for a unanimous court striking down a state cap on punitive damages that was passed in 2003. The Judicial Crisis Network, a dark-money group based in Washington, D.C., targeted Goodson, with ads stating that she accepted gifts and donations from trial lawyers and then benefited them with her rulings. The Republican State Leadership Committee’s Judicial Fairness Initiative bought airtime in a second race, characterizing candidate Clark Mason, a plaintiffs’ lawyer, as “the ultimate jackpot justice personal injury trial lawyer” in a TV ad. Both Mason and Goodson lost their races; overall, $2.4 million was spent in the two contests.
The Bigger Picture: Big Money Races Leave A Mark On A Majority of Elected Courts
At the start of 2017, more than half of all states that elect their justices had at least one sitting justice who had taken part in a $1 million-plus election during his or her tenure (20 out of 38 states). By contrast, in 1999, only seven states fell into this category.
As of January 2017, one-third of sitting, elected state justices had been involved in a big-money election at some point in their tenure (88 out of 268). In 11 states, more than half of the state supreme court was made up of justices who participated in these high-cost races. This proliferation of states and judges impacted by high-cost elections leaves a cloud hanging over much of the nation’s state court system, with the effects of such elections lingering beyond any particular election year.
While further research is needed, existing anecdotal and empirical evidence supports the observation that the effects of big-money elections can cascade beyond the immediate race, putting an entire court on notice that its members could well be targeted in future elections — thereby heightening pressure judges may feel to avoid rulings that might either make them a target or alienate wealthy supporters. “Whether subtle or unintentional or not, there may be a tendency in the future for appellate judges to have one eye looking over their shoulder,” now-retired Tennessee Chief Justice Gary R. Wade has observed, after narrowly surviving a 2014 retention election where the court’s record on the death penalty was at issue. 27
One notable study issued by the American Constitution Society found that as the number of television ads increased in a state’s supreme court elections, justices in that state were less likely to cast a vote in favor of criminal defendants, owing, the study suggested, to a concern that they would later be subjected to distorted, soft-on-crime attacks. 28 Another study concluded that campaign finance pressures exacerbate partisan behavior by judges, finding that judges who receive more campaign money from political parties and allied interest groups are more likely to favor their own party in election cases. When judges no longer face future elections due to a mandatory retirement age, the study found the influence of campaign money largely disappears. 29
State Courts as Political Targets
High-cost elections are not the only way to politicize state courts. Between 2015 and 2017, as documented by the National Center for State Courts, state legislatures have introduced a deluge of bills that risk entrenching partisan interests or weakening judicial independence in state courts across the country. By October 2017, a review by the Brennan Center for Justice identified at least 48 bills targeting courts in 24 states introduced in 2017 alone. 30
One recent trend has been court-packing (or shrinking): partisan efforts to change the number of state court seats, in order to grant (or deny) the governor an opportunity to appoint additional judges — and thus blurring the line between politics and judging. In Georgia 31 and Arizona, 32 for example, Republican-dominated legislatures passed bills in 2016 to expand their state supreme courts by two justices each, making possible additional appointments by their states’ Republican governors. In North Carolina, 33 a Republican-dominated legislature (with a veto-proof majority) passed a law in 2017 reducing the size of its intermediate appellate court from 15 to 12 judges, thus denying the new Democratic governor the opportunity to fill new seats when vacancies emerge. Oklahoma 34 and Washington 35 also had recent unsuccessful efforts to reduce the size of their state supreme courts from nine to five justices.
Several states have also recently considered bills that would allow legislatures to override judicial decisions or refuse to enforce court orders, 36 or that would make it easier to impeach judges for unpopular decisions. 37 While unsuccessful to date, they reflect a worrying trend of legislative efforts that would weaken judicial independence.
Lawmakers have also used electoral pressures as a way to exert political influence on courts. For example, one recent Texas case addressing benefits for same-sex spouses included a notable self-reversal by the Texas Supreme Court, in the face of substantial pressure from lawmakers and the public that included explicit electoral threats. There, the court originally refused, 8-1, to consider a challenge to same-sex spousal benefits afforded by the City of Houston. The court of appeals had thrown out a trial court order prohibiting Houston from providing benefits to same-sex couples, and instructed the trial court to reconsider the case in light of the U.S. Supreme Court’s decision on marriage rights for same-sex couples in Obergefell v. Hodges.
After declining to hear the appeal, the Texas Supreme Court received an outpouring of letters opposing its decision and criticism from GOP leaders, 38 including an amicus brief from Republican state legislators noting that “elections have consequences” and that “Judicial candidates, especially those in a party primary, campaign on the issues. They give their opinions on the political concerns of the day and pledge allegiance to their party platform.” 39 Following the public outcry, the state supreme court reversed course, accepting the case for review and ultimately reviving the case and sending it back to the trial court for further consideration, concluding that the U.S. Supreme Court’s ruling in Obergefell had not resolved the question of spousal benefits. 40