2024 in State Supreme Court Races

January 19, 2024

After the Supreme Court overturned Roe v. Wade, judicial politics was changed forever. Judges are finally seen as the important political actors they are, occupying a coequal, third branch of government, rather than a lesser branch to be considered only when legislative and executive avenues have been exhausted.

This has extended to state supreme courts, where, in many states, the people directly elect justices, shaping their judiciary just as directly as they shape the executive branch and often more democratically than they shape legislatures.

Shifts in voter attitudes regarding these courts have been profound. In 2020 and 2022, North Carolina voters allowed Republicans to take control of their highest court. Now, the nation’s most gerrymandered congressional maps have been implemented and it has been impossible for laws that violate basic human rights, including a brand-new abortion ban, to be overturned for doing such.

Contrastingly, last year, the voters of Wisconsin flipped their state supreme court, giving Democrats control for the first time in over a decade. Since then, the court overturned the nation’s most gerrymandered legislative maps, helping restore democracy in a hitherto ailing state. Future cases will likely see the state’s congressional maps and an 1849 abortion ban overturned, while the court rejects the legislature’s attempts to exercise absolute control over state government.

2024

This year, state supreme court races are on the ballot in a bevy of critical states – and with them, the rights of millions.

“We’re looking at upwards of 80 state supreme court elections in more than 30 states next year. This is going to be one of the biggest years for state Supreme Court elections. We have several states where partisan control of those deeds could be determined. Some of this will depend on whether real competitors file against incumbents and for open seats, and whether, in states with retention elections, real campaigns are mounted to challenge the justices who are up,” explained Jake Faleschini, legal director for state courts at the Alliance for Justice Action Campaign, a group aiming to ensure courts reflect the values of the American people.

Lessons learned in Wisconsin and Pennsylvania, where nonpartisan judicial races were effectively made partisan through good campaign tactics, without crossing any lines, will be applied nationwide – even in retention elections, where voters are asked whether an incumbent justice should be retained, and failure to retain a justice means that the governor would appoint replacements.

Mr. Faleschini delineated, “We’re going to see more folks talking about their values, why they are running, what rights they are most focused on protecting and learning to do it in a way that’s more similar to what we saw in Wisconsin and Pennsylvania, than what we saw before Roe was overturned. Based on Supreme Court opinion and precedent, it’s okay to talk about your values and why you’re running in these elections, as long as you aren’t talking about how you would rule in particular cases that might come before you. We’ve created these systems where people need to run for election for these races and they’re going to talk to voters the way that voters want to talk about the issues.”

Ohio

The state with the highest stakes may be Ohio. Time and time again, that state’s legislature and governor have shown that they are willing to go further and further to the right, passing gerrymandered congressional districts and even threatening the core of the democratic process through the failed Issue One special election last August.

Simultaneously, Ohio voters have gone to the ballot box to protect reproductive freedom, rolling back the state’s extreme abortion ban, and legalize recreational marijuana, making the nation one in which most people can access legal cannabis.

With a 4-3 Republican majority and three seats up for election this year, the voters of Ohio will have the chance to flip their court, changing their state for the better.

Democratic Senator Paula Hicks-Hudson of Toledo said, “We’ve got three good candidates, including two incumbents. The work never ends. The major push is now fair redistricting. It’s not the politicians that should decide how districts are drawn, but citizens who should decide who’s going to represent them.”

Republican wins would push Ohio into a state of dysfunction and would threaten the heart of the state’s body politick – an illness from which the state might never recover.

North Carolina

After disastrous previous election cycles, North Carolina Democrats are desperately trying to regain control of their supreme court, while simultaneously trying to retain their control of the governorship and other statewide offices.

Republican control of the state’s supreme court, enabled after races for the court became partisan, has proven disastrous, with extreme voter suppression laws making it easier to challenge election results in bad faith, those gerrymandered congressional maps and more all approved by a court that has abandoned precedent and played political games to suit its far-right agenda. 

With North Carolinians now witnessing the results of Republican control, they will hopefully begin restoring their state’s democracy, including by re-electing one of their high court’s last two Democrats. Otherwise, the authoritarian creep that had threatened Wisconsin will entangle itself in every crevice of North Carolina’s government, denying the people their opportunity to be well and faithfully represented by their elected officials.

Michigan

Democrats hold a thin 4-3 majority on the Michigan Supreme Court, which Republicans are targeting. While Democrats did manage a statewide sweep in 2022, the voters elected Democratic and Republican justices to the court at the same time. 

A Republican flip would be disastrous, posing a major challenge to unified Democratic control of statewide executive offices. Should the state’s legislature remain Democratic, a Republican-controlled high court would be the only thorn in the side of a solidly Democratic agenda powered by a majority for the people.

From loosening restrictions on reproductive freedom to positioning Michigan once more as a pioneer for labor, while making the state a haven for those whose rights to exist are under attack in Republican states, Michigan Democrats have shown what they can do with unified control of the government, while Republicans remain determined to strip all of this progress away – something that a Republican-controlled court would assuredly actively participate in.

Still, in a presidential election year and in a state with a recent history of strong Democratic organizing, Democrats are favored to retain control and win at least one of the two seats up for election (one seat is held by a Democrat, the other by a Republican).

Arizona

Although Arizona does not elect its justices in traditional elections, the state’s retention elections offer a unique opportunity to test the salience of reproductive freedom in an unconventional election style, in a state representing the nation’s shift away from radical Republicans.

Should justices fail to be retained, Democratic Governor Katie Hobbs would appoint replacements, ushering in a much-needed shift to common sense. With three conservative justices on the ballot, a well-coordinated campaign could see a drastically different court – one that works for Arizonans, condemning gerrymandering and voter suppression rather than enabling it.

Nevada

After many Nevadans returned split tickets in 2022, Nevada Republicans and Democrats are battling over control of the state’s high court. With three seats, currently held by two Democrats and one Republican, up in nonpartisan races, the stakes are high in one of only a few states with a governor from a different party than the legislature.

Taking Nevada seriously must be an imperative, despite national Democrats sometimes writing it off as a sure, if close, win.

Other battles

Although their paths to sea changes may be less clear, elections in further states are just as important.

Arkansas only has a 4-3 Republican majority on their state supreme court, and Democrats, eliminated from power in the state, are testing just how far pro-reproductive freedom messaging can go in a socially conservative region, having won partly on it in Kentucky and cognizant of the importance inherent in this last opportunity to stop Arkansas Republicans from successfully enacting even more of their radical agenda. Democrats are hoping that the nonpartisan nature of these races could encourage more crossover voting.

This is also the case in West Virginia, with a court split amongst three Republicans, one independent and one Democrat, as two seats, held by one Republican and the sole independent, are up in nonpartisan elections. 

Montanans, meanwhile, will have the opportunity to protect several moderate justices from right-wing challengers – crucial as Democrats have almost totally fallen away as a political force in the state, leaving the courts as the last bastion of hope for the people. Should these justices not be re-elected in their nonpartisan elections, the state’s shift to the right would be unchecked and unbalanced.

These elections are not always conducted solely for the short term. In Georgia, with a conservative court and nonpartisan elections, Democrats, should they have the right candidates, could begin their slow march to bring balance back to that court. As Georgia continues to shift towards Democrats, this long-term investment could be critical in eventually providing a check on Republicans who will likely seek to protect their power through gerrymandering and voter suppression rather than through fair and competitive elections.

Similarly, a state with a rich history of politicized courts, Texas, could test the limits of popular anger, with three seats on the entirely Republican court up for election. After the state’s high court decided they were qualified to practice medicine and decide what a woman could do with her own body, denying Kate Cox access to a medically necessary abortion, many erupted in anger. Yet, even one seat being flipped would be difficult for Democrats to accomplish, given the challenges of reaching voters in the nation’s second-largest state and the perpetual question of when Democrats can finally win a partisan statewide election in the Lone Star State.

On the exact opposite side, Minnesota, which has an 8-1 Democratic court (soon to be entirely Democratic due to a retirement and gubernatorial appointment), will have three seats up for partisan election. These three seats will all be held by Democrats, including the court’s first openly gay justice and the first Native American justice of any state supreme court. Protecting these Democrats would lock in years of further progress for all Minnesotans.

The future

Overall, the impact of these races cannot be understated. Rights and freedoms are at stake like never before and, for many, the courts are the sanctuary of last resort. The people must vote in their own interests and ensure these courts reflect democratic principles rather than serving at the behest of a radical agenda that never considered the people to be worth fighting for.

The Ohio Supreme Court. Public Domain

By Charles Horowitz