This week’s Fair Courts E-Lert highlights a new Brennan Center report, The Politics of Judicial Elections 2017-18, SCOTUS’s decision to hear a case on whether states can impose a partisan balancing requirement on their courts, and more.

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[FAIR COURTS]

Brennan Center Releases New Report, The Politics of Judicial Elections 2017-18

On December 11, the Brennan Center for Justice released a new report, The Politics of Judicial Elections, 2017-18: How Dark Money, Interest Groups, and Big Donors Shape State High Courts ([link removed]), analyzing spending in state supreme court elections during the 2017-18 election cycle. The report, based on data from the National Institute on Money in Politics, found that $39.7 million was spent in 48 races to elect state supreme court judges in 21 states.

Among the report’s findings were that special interest groups accounted for 27 percent of every dollar spent in state supreme court campaigns, and that eight of the ten biggest spenders did not disclose the source of their funds. For example, Arkansas saw the most outside spending with over $2.8 million, which made up 84 percent of all the state’s spending. Much of this outside spending in Arkansas came from the Judicial Crisis Network, a group which spent $10 million last year to support Brett Kavanaugh’s nomination to the U.S. Supreme Court.

Other major findings include the biggest source of dark money was likely the Judicial Crisis Network and states have made little progress towards achieving more diverse state supreme court benches. The report argues that the continued proliferation of expensive and politicized elections threatens the hope of equal justice for all.


SUPREME COURT

SCOTUS to Decide Constitutionality of Delaware’s Political Balancing Requirement for Courts

On December 6, the U.S. Supreme Court agreed to hear a case that could have major implications for how states design their judicial selection systems. The case may also present an opportunity for the justices to revisit the states’ interests in protecting judicial integrity and public confidence last articulated by the Court in Williams-Yulee v. Florida Bar ([link removed]).

The case, Carney v. Adams ([link removed]), deals with provisions of Delaware’s constitution that require the state’s judiciary to be politically balanced and require judges to be members of the two major political parties. The U.S. Court of Appeals for the Third Circuit struck down ([link removed]) the political balancing requirement last year, concluding that the provision violated the First Amendment of the U.S. Constitution.

As reported by the Washington Post ([link removed]), James R. Adams, “a retired lawyer who left the Democratic Party because he said it was too centristic in Delaware, challenged [the provision], saying it eliminated some people — such as him — from service on the courts and violated the First Amendment.” In his petition ([link removed]) to the Supreme Court, Gov. John C. Carney attributed Delaware’s independent judiciary to the state’s political balancing requirement.

The Supreme Court is expected to hear oral argument in the spring, with a decision by the summer.


STATE SUPREME COURTS

First Native American Justice Appointed to Washington State Supreme Court

Gov. Jay Inslee recently announced ([link removed]) his appointment of Judge Raquel Montoya-Lewis to the Washington State Supreme Court, making her the first Native American person who will ascend to the state’s highest bench.

While Washington State’s high court was not entirely comprised of white justices prior to Montoya-Lewis’ appointment, the state still has a long way to go when it comes to diversity on the bench. According to a recent report ([link removed]) by the Brennan Center, the state has only had three justices of color, including one woman of color, since at least 1960, even though 31 percent of the state’s population are people of color.

Montoya-Lewis’ appointment follows the appointment ([link removed]) of Judge Dustin P. Rowe, an enrolled member of the Chickasaw Nation, to Oklahoma’s Supreme Court in November. Prior to these appointments, Justice Anne McKeig of the Minnesota Supreme Court was the only sitting Native American state high court justice in the country. There is only one ([link removed]) active Native American judge on the federal bench, Judge Diane Joyce Humetewa.


Wisconsin Supreme Court Justice Accused of Coordinating with State’s Republican Party

Justice Dan Kelly of the Wisconsin Supreme Court has been renting office space from the state’s Republican party, as well as working with them to circulate his nomination papers, as part of his reelection campaign, according to the Wisconsin State Journal ([link removed]).

There is no state law regarding the distribution and collection of nomination papers. The state GOP has also “been involved in past Supreme Court campaigns, including helping conservative candidates gather signatures required to get on the ballot,” according to the Wisconsin Law Journal ([link removed]). “Democrats and liberal groups have also long supported candidates in the races, which are nonpartisan in name only.”

Other state supreme court justices in Wisconsin have faced similar accusations of working with outside groups. Former Justice David Prosser’s coordination with outside groups during his election campaign was revealed after an investigation found that then-Gov. Scott Walker had worked with the same groups in his 2011/2012 recall election campaign. According to The Guardian ([link removed]), those groups spent over $3.5 million in support of Prosser, who later refused to recuse himself from a case ([link removed]) involving the alleged illegal coordination by Walker’s campaign.

Author’s Note: The Fair Courts E-Lert will go on holiday vacation for the next two weeks, returning on Friday, January 10, 2020. On behalf of the Brennan Center, we wish you happy holidays, and a happy new year!

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The Brennan Center for Justice at NYU School of Law is a nonpartisan law and policy institute that works to reform, revitalize – and when necessary defend – our country’s systems of democracy and justice.

Brennan Center for Justice at NYU School of Law
120 Broadway, Suite 1750
New York, NY 10271
T 646 292 8310
F 212 463 7308
[email protected]

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