With the fall of Roe, a bevy of anti-abortion laws, both old and new, are getting another day in court. While numerous state-level bans and limitations are no longer off the table thanks to the Supreme Court’s recent ruling in the Dobbs case, whether a state is able to enact those laws will now be decided by dozens of other courts across the country: state supreme courts. As Blue Tent detailed in our recent brief, an increasingly hands-off approach by the federal judiciary will mean greater power for state supreme courts. This should give new urgency to donors to invest in state supreme court campaigns, as these judges will now decide nearly every meaningful legal challenge to abortion rights in coming years.
The good news here is that in many states where abortion is banned by a previous law or could soon be banned by rightwing legislatures, the state’s highest court isn’t yet a rubber stamp. The bad news: That could change by November, especially if current polling trends for Democrats bear out into the fall. For those looking to make an investment in holding power in these vital courts during the midterms, the terrain for giving can be a bit vexing, given the wild variance and unorthodox nature of politics surrounding state courts. Luckily, it only took us a little bit of research to find that the strategy for giving to these campaigns in 2022 is pretty straightforward.
State of the state courts
In 2022, numerous state supreme court seats across dozens of states are up for election. Unfortunately, this doesn’t necessarily translate into nearly as many winnable races or flippable courts. State judicial elections vary wildly, as we explain in our brief on winning state supreme court races, with partisan ballots in some states, nonpartisan in others, and — in the case of Michigan — a mixture of both. Some states have a single-party lock on judicial nominations and elections; others see their races dominated primarily by nonpartisan incumbents with few and underfunded challengers; others are a bit more wide open. Many states have also begun to change their judicial elections process in recent years, often in a way that favors the party already in power.
Add these complications to a lack of institutional backing by Democrats for many judicial races, and the number of winnable races worth a donation becomes smaller still. We’re only recommending a handful of races for progressive donors in 2022, but the impact these elections have could still be gigantic.
In Michigan, where the top court currently has a 4-3 Democratic majority, incumbent Richard Bernstein is running for reelection and state representative Kyra Harris Bolden is challenging Republican Brian Zahra. Though a blue-leaning swing state, Michigan’s state government is still divided over whether to repeal or enforce a 1931 abortion ban; Gov. Gretchen Whitmer has asked the state supreme court to rule on the law’s constitutionality, while supporters of a state ballot measure to enshrine abortion rights (a measure that will certainly land in court someday) have already gained hundreds of thousands of signatures.
In North Carolina, where Democrats likewise hold a 4-3 majority, incumbent Sam Ervin is running for reelection and state appeals court judge Lucy Inman is running for an open seat currently held by Democrat Robin Hudson. Abortion remains legal in North Carolina for now, and their clinics are already reporting an influx of patients from nearby states. That being said, given recent history, it would only take one or two bad election cycles for North Carolina to start regulating abortion like its neighbors to the south.
In Ohio, Republicans currently hold a one-seat majority on the supreme court, but three of their seats are up in November. Terri Jamison and Marilyn Zayas are challenging two Republican incumbents, while current Democratic supreme court judge Jennifer L. Brunner is running against fellow supreme court judge Sharon L. Kennedy, a Republican, for the state’s open chief justice seat. Ohio currently has a “heartbeat” abortion law, which bans abortions for most people after only six weeks.
Finally, we’re taking a page for our friends at the Justice Project and also recommending donors give to Montana supreme court justice Ingrid Gayle Gustafson, who is currently running for reelection. While Montana is likely to continue moving rightward, the state’s supreme court currently has a Democratic majority by one vote, which could stand as a bulwark to coming GOP efforts to criminalize abortion.
Giving made easy
For donors looking to pitch in, the Justice Project has created a one-stop shop for all of the candidates listed above via ActBlue. You can split a donation to their whole slate of candidates, or give to them individually as you see fit.
The Justice Project first began working on state supreme court races in 2020, and is looking to funnel some $20 million to races in 2022. Unsurprisingly to anyone who reads Blue Tent, Republicans have had a similarly national, centralized program for state supreme court races for years — the Judicial Fairness Initiative, part of the Republican State Leadership Committee — helping them to run a well-oiled machine on these more obscure campaigns. The Justice Project is a much-needed and welcome response to Republican strategizing, and we encourage donors to give through their slate to help the organization continue to grow.
As noted in a recent story in the New York Times, Republicans will not be laying down for these seats easily, especially as state courts will not only be deciding on abortion cases, but gerrymandering, voting rights, election certification, and just about everything else. Democrats not only have to win big in 2022, they have to continue building their fledgling infrastructure to fight off even worse attacks coming down the road.