How the GOP state Supreme Court wins can change state policy and who runs Congress

In the coming year, state courts across the country will consider abortion rights, redistribution and voting rights.

Unlike U.S. Supreme Court justices, who are appointed, many state Supreme Court justices have just held elections. The midterms resulted in little upheaval, but GOP victories in the Ohio and North Carolina Supreme Courts are changing the legal landscape in those states.

Looking ahead, here’s how those victories will affect state policy decisions, as well as Washington’s balance of power.

Ohio traded a swinging chief justice for a conservative one

This year, Ohioans re-elected three Republican state Supreme Court justices, defeating Democratic challengers.

This is the bench likely to hear a challenge to Ohio’s abortion ban after six weeks, as well as lawsuits surrounding the state’s voting cards.

While the GOP will retain its majority, the chairman will change.

With Republican Chief Justice Maureen O’Connor passing the age limit to run again, voters chose another Republican, Justice Sharon Kennedy, to take her place.

According to an already conservative panel, “Justice Kennedy was perhaps the most conservative,” said Jonathan Entin, a law professor at Case Western Reserve University.

Kennedy, a former police officer and administrative judge, has served on the bench since 2012. In 2017, she spoke at an event of an anti-abortion rights group while the panel was hearing a case on whether or not to close the case. an abortion clinic.

“It’s morning again on the Ohio Supreme Court,” Kennedy told supporters gathered at the GOP election party in Columbus.

Ohio voters also re-elected Republican Associate Justices Mark Fischer and Pat DeWine, son of Governor Mike DeWine. Governor DeWine, also a Republican, will appoint one judge to the court, who will fill O’Connor’s seat.

When it comes to redistricting, Ohioans passed two constitutional amendments, in 2015 and 2018, to update the process of dividing up districts so that it would be more bipartisan and less likely to favor one political party over another.

Republican officials, however, continued to monitor the map-drawing process. As a result, O’Connor, the outgoing Chief Justice, sided with the Democrats and tossed out proposed cards for unfairly favoring Republicans — five times.

The new bank will allow GOP lawmakers to get those cards anyway.

“It’s pretty clear that elected officials, at least the Republican elected officials, have been waiting for court,” says Entin.

At higher stakes, races for the state Supreme Court are more expensive and openly partisan

Power over redistribution is just one example of the influence wielded by the state’s highest courts. These maps determine not only which party controls the state legislature, but also how many Democrats and Republicans the states will send to Congress.

With narrow margins in the U.S. House of Representatives, “These courts have significant power, especially at this time, to determine how our federal government functions, not just the state government,” said Douglas Keith, counsel for the Brennan Center for Justice. Between Ohio and North Carolina, 29 congressional districts are in play. The Brennan Center represents some of the plaintiffs in Ohio’s redistricting suit.

At the same time, races to control these courts have increased spending, and in some cases have become more explicitly partisan.

For example, this Ohio midterm voters saw a “D” or “R” next to a court candidate’s name on the ballot, thanks to a 2021 law passed by the GOP-led legislature.

Financing has also increased. State judicial races used to be “pretty sleepy,” says Keith, who mainly attracted donations from advocacy groups within the state. Recent years have seen a growth in campaign financing by national political groups and PACs.

The Republican State Leadership Committee credits the “clean sweep” in Ohio and North Carolina to the group’s spending on the judicial campaign called the Judicial Fairness Initiative. The aim of the initiative is to “ensure that the redistribution battles in those states are governed by strong conservatives,” an RSLC spokesperson said in a statement.

Democrats, Republicans and PACs spent a lot of money in Illinois, where the Democrats managed to win open seats and maintain their majority on the court.

The accounting is not yet final for the 2022 races, but some states have already broken their previous records this cycle, says Keith. During the 2020 election, state Supreme Court contests grossed $97 million, making it the most expensive cycle to date, according to a report from the Brennan Center.

North Carolina Supreme Court nominees speak at a pre-election panel at Duke University Law School in Durham, NC, on Oct. 26.  Republicans have flipped control of the state Supreme Court in their favor.

North Carolina Supreme Court nominees speak at a pre-election panel at Duke University Law School in Durham, NC, on Oct. 26. Republicans have flipped control of the state Supreme Court in their favor.

Partisan control of the North Carolina Supreme Court shifted

North Carolina saw the largest Supreme Court swing of the midterm elections, switching from a 4-3 Democratic majority to a 5-2 Republican majority.

Once seated, this new bench could hear cases on the state’s voting district maps, as well as education funding and abortion rights.

The vast majority of these decisions have no partisan angle, says former North Carolina Supreme Court Justice Bob Edmunds, a Republican. In recent years, however, shifts outside and inside the court have made it more overtly politicized.

“This year’s [North Carolina] judges in some of their writings accused each other of making decisions based on political beliefs,” says Edmunds, adding that this is “not common practice.”

A battle over partisan gerrymandering in the state is underway. North Carolina must redraw its congressional map before 2024. Edmunds is a special master, or outside expert called in by the court to redistribute cases. But beyond that, the judges could shake up the state’s voting requirements significantly, he says.

North Carolina has several voting access cases working their way through state and federal courts such as NC NAACP v Moore.

Edmunds says changing when, how and where people vote is “decisive in a way you wouldn’t necessarily expect because it’s so fundamental to how we see ourselves as American voters.”

Andy Chow, of the Ohio Statehouse News Bureau, contributed to this story.

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