As state judges become the primary enforcers of civil rights, big money seeks to influence them.
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In 38 states, supreme court judges must stand for election. These elections take various forms — partisan, nonpartisan, or uncontested retention elections, in which citizens vote simply to keep or remove a judge — but, historically speaking, most of them were low-profile affairs. In recent elections, however, unprecedented amounts of money have poured into these campaigns. The 2019–2020 election cycle set a record for spending on state supreme court elections, with $97 million spent on the races nationwide, according to a Brennan Center report

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released today.

For many years, the forces driving this spending were clear: economic interests, in particular, backing candidates for reasons having to do with environmental regulation, labor law, tort law, and the like. (Even if the ads purchased were about criminal justice.) Now a new factor may be involved: the withdrawal of the U.S. Supreme Court from enforcing civil rights and voting rights. In 2019, for example, the justices concluded that partisan gerrymandering was not justiciable under the U.S. Constitution. The decision shifted the voting rights battlefield from Washington to 50 different state courts. The same is increasingly true of reproductive rights, marriage equality, and education policy. In all of these areas of law, state supreme courts are no longer way stations on the path to the U.S. Supreme Court, but independent loci of power.

Where power goes, money follows. Spending on judicial elections has skyrocketed in many states. In 2019, Wisconsin held its most expensive state supreme court race ever, but the record only lasted one year — nearly $10 million was spent to secure a single seat on the state’s high court in 2020. North Carolina wasn’t far behind, with a single seat generating more than $6 million in spending.

Spending by outside interest groups, rather than fundraising by the candidates, drives much of the nationwide spike. Interest groups spent $35 million on advertisements and other election activities in 2019–2020, more than double the totals spent in previous election cycles. In Michigan and Wisconsin, outside groups spent more than the candidates themselves. These spenders include dark money groups such as the Judicial Confirmation Network (which spent millions to put Neil Gorsuch, Brett Kavanaugh, and Amy Coney Barrett on the U.S. Supreme Court) as well as traditional business interests such as the oil industry.

All this may point to a new and disturbing trend. In the past, deregulatory and anti-environmental interests funded judicial elections, making common cause with social conservatives focused on issues such as abortion. Now a new marriage of convenience may be taking place: business money melding with “Stop the Steal” agitation. That’s especially true as the Big Lie comes to dominate the Republican Party in many states. If the trend continues, it will pose challenging questions to the financial forces who typically spend in these races but who profess to know that our election system must be defended.

Campaign donations to elect state court judges often are not acts of charity. Those millions come with strings attached, and the judges know it. A judicial candidate who wins her race in this election cycle on the back of a large donation may have to return to the contributor hat-in-hand for the next election. The escalation of spending represents an escalation of influence, and a diminution in judicial independence, which will ultimately undermine public trust in state courts.

The Brennan Center has also documented

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attempts by state legislators to reduce the independence of the judiciary, making this a difficult time to be a state judge. While their importance is increasing, they are caught in a squeeze between big donors and powerful politicians. Watch this space — state judges are set to make headlines in 2022.

Democracy

Redistricting So Far

As redistricting continues, it can be hard to keep up with the process across dozens of states. A new Brennan Center report assesses the 2021–2022 cycle at its midpoint, giving a thorough overview in every state with results thus far. “Already, this cycle appears to be one of the most abuse laden in U.S. history. There are a few notable bright spots, but in many states, racial discrimination and extreme gerrymandering are once again prolific,” the report finds. Read more

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The Fight for a Fair Count in 2020

Records obtained by the Brennan Center through a Freedom of Information Act lawsuit reveal more about the Trump administration’s attempts to interfere with the 2020 Census. Kelly Percival breaks down what’s in the documents and the need to remain vigilant about political interference in the decennial count. “At stake was the accuracy and legitimacy of the population counts used to divvy up seats in the House of Representatives, draw electoral districts, and distribute $1.5 trillion annually in federal funding,” she writes. Read more

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North Carolina’s New Discriminatory Voting Map

North Carolina just underwent its first redistricting cycle since the Supreme Court struck down the Voting Rights Act’s preclearance requirements that protect against racial discrimination. Civil rights groups have rushed to challenge the new maps, which harm representation for communities of color to protect Republican seats in the House. “This redistricting cycle has unleashed a monsoon of maps that undercut the voting power of communities of color,” Julia Boland and Yurij Rudensky write. Read more

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Restoring Trust in Science

The White House recently released recommendations on strengthening federal scientific integrity and public trust in science policy. The recommendations align well with those made by the Brennan Center’s bipartisan National Task Force on Rule of Law & Democracy. Mira Ortegon outlines why government science is so important and urges Congress to codify standards and protections by passing the Scientific Integrity Act. Read more

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Justice

One Year Into the Biden Administration, Progress Is Slow on Justice Reform

President Biden campaigned on bold commitments to reform America’s criminal legal system. Some areas, such as investment in community anti-violence programs, have seen notable headway. But too many others, such as expanding the use of clemency and eliminating the death penalty, have seen inadequate progress. An extensive Brennan Center evaluation assesses the state of Biden’s promises one year after his inauguration and offers recommendations for what still needs to happen. Read more

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Coming Up

VIRTUAL EVENT: TONIGHT, Reframing the Constitution

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Tuesday, January 25, 7–8 p.m. ET

In The People’s Constitution

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, Wilfred Codrington and John Kowal present an alternative history to our founding document and a vital guide to our national charter. That history, they argue, “has been, for the most part, an inspiring story of progressive legal change, driven by powerful social movements and an evolving array of civil society organizations.” But in our fractured, hyper-partisan politics of today, are we still able to amend the Constitution? Codrington and Kowal explore the possibilities in a discussion moderated by Brennan Center Senior Fellow Caroline Fredrickson. RSVP today

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Produced in partnership with the New York Public Library

VIRTUAL EVENT: The Power Struggle Over Elections

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Thursday, January 27, 6–7 p.m. ET

In the wake of the 2020 election, a power struggle over the right to vote has broken out between states and the federal government — but who really wields the power? The Constitution’s Elections Clause gives Congress broad authority to decide election rules, but the far-right is now seeking to contort the clause to justify their voter suppression and election subversion plots. Brennan Center President Michael Waldman moderates a discussion with election scholar Franita Tolson, historian Rosemarie Zagarri, and Atlantic senior editor Ron Brownstein to break down the Elections Clause and explore what the future of voting — and the fight over it — will look like as we approach the midterm elections. RSVP today

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Produced in partnership with New York University’s John Brademas Center

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News

Chisun Lee on reforming the NYC Board of Elections // GOTHAM GAZETTE

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Michael Li on aggressive gerrymandering in Kansas // KANSAS CITY STAR

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Yurij Rudensky on gerrymandering’s impact on communities of color // STATELINE

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Hernandez Stroud on the federal trial of three ex-officers involved in George Floyd’s death // STAR TRIBUNE

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Michael Waldman on the path forward for voting rights // NEW REPUBLIC

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Dan Weiner on Sen. Ted Cruz’s campaign finance SCOTUS case // SPECTRUM NEWS

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Wendy Weiser on Florida Gov. Ron DeSantis’s proposed election police force // CNN

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Feedback on this newsletter? Email us at [email protected]

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