The Pennsylvania Judicial Center in Harrisburg. (Capital-Star file)
Ten years ago, Pennsylvania voters elected three new state Supreme Court justices in a historic election.
It was the first time in the court’s 311-year history three seats were in the hands of voters at the same time and resulted Democrats holding a 5-2 majority on the state’s highest court.
This year, the three winners of the 2015 election, Justices Christine Donohue, Kevin Dougherty and David Wecht, are running to keep their seats in “Yes” or “No” retention elections. Although judges are expected to be nonpartisan, if any two or all three are ousted, it would open a door to change the court’s composition for the next decade, and beyond.
That could determine which party has an advantage in Congress and the state legislature through redistricting and direct the outcome of cases that involve reproductive rights, voting rights and state policies such as marijuana legalization, partisan.
With several consequential cases almost certain to come before the court in coming years, Republicans and Democrats appear now to be gearing up for an expensive campaign in the type of election that usually generates little buzz. The end results may pose a threat to the public’s perceptions of judicial independence and nonpartisanship, court watchers said.
“What could happen in these retention elections is a different animal,” said public affairs expert Larry Ceisler, who said the focus on this year’s retention elections is unprecedented.
A state-focused Republican campaign organization told donors last month it is committed to making seven-figure investments in the Pennsylvania retention election and in Wisconsin, where a 4-3 liberal majority hangs on the outcome of this year’s election.
If it gets politicized and tied to national politics it becomes just one more example of people voting along party lines and being involved in tribal politics.
– Lauren Cristella, the Committee of Seventy
The Democratic Legislative Campaign Committee said last week that it has added the Pennsylvania and Wisconsin supreme court elections to its map of targeted races for 2023.
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Both noted the courts’ role in the two swing states in determining state legislative and congressional districts, which will be redrawn after the 2030 Census. The DLCC also said the Pennsylvania court could play a role in determining voting rights and touted its role in electing Justice Daniel McCaffery in 2023.
Spending in judicial elections has been on the rise across the country for years. The 2015 Supreme Court race in the commonwealth, which began with 12 Republican candidates and six Democrats in the primaries, was the most expensive in United States’ history at the time, with more than $16 million in spending.
The 2023 race, which focused on the importance of the state Supreme Court in protecting Pennsylvania abortion rights, destroyed the previous Pennsylvania record with more than $22 million spent. But that same year, candidates and political organizations set a new record by spending $51 million on a single Wisconsin Supreme Court seat.
This year’s high court election in the Badger State could be even more expensive, with candidates and independent groups spending more than $18 million ahead of the April 1 election. Elon Musk has spent more than $1 million so far while a political organization he contributed to in the past has spent $1.6 million, according to the Associated Press, while several Democratic mega donors have given millions to state Democrats.
What are retention elections?
In Pennsylvania, most judges serve 10-year terms. Candidates for judicial office only run against opponents in elections for vacant seats. After the first and subsequent terms, judges must face voters who are asked whether they should be retained for another term.
Pennsylvania began the election and retention process for judges in 1968, when voters approved the state’s current constitution. It was intended to provide a bulwark against partisan politics in the courts, which had been a factor since the commonwealth abandoned gubernatorial appointments in favor of judicial elections in 1850.
“The whole theory behind retention elections was that they would be non-partisan. They would balance out the partisanship of judicial elections,” said Debbie Gross, executive director of Pennsylvanians for Modern Courts, a nonpartisan group that promotes judicial independence and advocates for choosing judges by a merit selection process.
It’s rare for judges not to be retained. Most easily win their retention elections by two-thirds margins and only one appellate court judge has lost a retention election.
Supreme Court Justice Russell Nigro was ousted in 2005 when he lost his retention bid by two percentage points while his colleague, Justice Sandra Shultz Newman, won retention by a smaller than usual, but comfortable eight points.
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Nigro and Newman were targeted because they were up for retention in the same year that the legislature approved a pay raise for itself and state judges in a dead-of-the-night vote that spawned public outrage and a campaign to oust those who had supported it.
The nature of the judiciary and the timing of retention elections also contribute to a lack of voter interest and low turnout, Lauren Cristella, president and CEO of the nonpartisan good government group Committee of Seventy, said.
Judicial elections are held in the same cycle as elections for local offices, such as mayors and district attorneys, when turnout is generally lower than in presidential or gubernatorial elections. In heavily partisan areas, those races are often decided in primary elections, further driving down turnout in the November election, Cristella said.
The courts are also the most obscure of the three branches of government, with voters possessing limited understanding of what the various courts do and who the judges are.
“I would almost guarantee you these people have next to zero name recognition,” Cristella said.
The code of conduct judges must follow specifically prohibits them from speaking to voters about issues that might come before them on the bench. That limits the amount of information that voters can use to make their decisions, Gross said.
Although the courts do have a crucial importance in the lives of everyday Pennsylvanians, they might be excused for not following their work closely, said Joel Ready, a Reading attorney who worked as a clerk in the Virginia Supreme Court and edited a blog on the Pennsylvania Supreme Court.
A lot of the issues the judges decide, although extremely important, are boring,” Ready said.
Many of the state Supreme Court’s most pivotal recent decisions have involved interpretations of the Pennsylvania Constitution and recognizing fundamental rights it guarantees, he said.
In 2018, the court gave life, Ready said, to the free and fair elections clause of the state constitution when it found the state’s 2011 congressional map was unconstitutional and substituted its own. That year, Pennsylvania Democrats won five congressional districts and eliminated the Republicans 13-5 advantage in the commonwealth’s delegation.
It has also interpreted the state charter to allow private citizens to sue to enforce their constitutional rights to environmental integrity and educational equality. The latter led to the historic Commonwealth Court trial and 2023 ruling the state’s education funding system was constitutionally unfair.
And state high courts are likely to have increased significance in determining the rights of individuals as the U.S. Supreme Court returns important areas of the law to the states, as it did when it overturned Roe v. Wade, the 1973 decision that established the national right to abortion.
“Whether you think they’re making the right decisions or not is extremely important to voters,” Ready said, adding that judicial campaigns can quickly reduce nuanced legal issues to broad policy goals that obscure the individual qualifications of judges.
“We’re talking about the development of very complex legal doctrines so it becomes a question of which party do I trust with that?” Ready said.
Communicating what’s at stake in a compelling way is expensive, Cristella said.
Besides the parties’ pleas to donors for support in targeting the retention elections, there are indications that “both sides are getting ready to mount extensive and expensive campaigns.”
“On both sides of the aisle in the political chattering class we are hearing meetings getting started and numbers being thrown around,” she said.
On one hand, more attention on judicial elections means voters have more information about their choices, Cristella said. But it also has the potential to increase political polarization and decrease trust in the courts.
“If it gets politicized and tied to national politics it becomes just one more example of people voting along party lines and being involved in tribal politics,” Cristella said.
By eliminating the need to run against opponents, retention elections were intended to allow judges to lean into their independence without concern about following party lines to stay on the bench. That all changes if retention elections become high-dollar political campaigns, Cristella said.
That’s why the Committee of Seventy has joined Pennsylvanians for Modern Courts in advocating to remove voters from directly electing judges in favor of a merit selection process, Cristella said. Under that approach judges would be chosen by an independent, bipartisan commission composed of lawyers and non-lawyers from diverse occupational, racial and ethnic backgrounds.
Gross said although bills proposing a merit selection system have been introduced over the past few decades, none have come close to becoming law. The most recent effort was a bill that would have ended statewide judicial elections by creating judicial districts for the state Superior, Commonwealth and Supreme courts. It was widely panned as an attempt to gerrymander the courts, Gross said.
“If there is a multimillion dollar “No” campaign, these judges are going to have to lean on and coordinate with the people that want to keep them in,” Cristella said. “It undermines the public’s trust and the rule of law if people think judges are in it for one team or the other.”