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A running theme in Blue Tent’s coverage of the 2022 midterms is the heightened importance of less well-known state-level offices. Since 2020, state legislatures, governors, and other officials across the country have pursued a witch hunt for evidence of voter fraud and election rigging, while Republican candidates for office in this year’s elections are pledging to wage similarly baseless campaigns. We’ve written about the important role attorneys general, secretaries of state, and state legislatures may play in a contested 2024 election, from refusing to certify votes to bringing lawsuits against election officials and candidates.
State supreme court judges also fall into this category of important but less talked about officials. What’s unsettling, however, is that many of these judges are capable of wielding more power than a state’s governor, yet they often command significantly less attention than races for attorney general or state senate.
Part of the reason for this is that courts are—let’s be honest—a pretty boring topic, even when it comes to the high stakes of the U.S. Supreme Court. Conservatives have pounced on these dustier areas of politics before, skillfully crafting messaging and building infrastructure to take power with few regular people even noticing. State courts are a perfect environment for rightwing takeover, as they combine two areas of politics that liberals have traditionally neglected: the states and the courts.
Another reason for this lack of attention on lower courts, among even the politically engaged, is that the selection systems for judges are often complicated and can vary widely from state to state. Slightly fewer than half the states elect their judges, with the rest filling their courts via appointments. Yet even among the states with elections, the process is inconsistent nationally: some states hold explicitly partisan elections, some keep party association off the ballot; some supreme court seats are statewide offices, others are elected from districts; the number of judges and (in the case of Texas, even the number of high courts) can also vary from place to place.
As we explain in our new brief, Winning State Supreme Court Races: Options for Donors, such complications should not deter Democrats from investing in these races. Continued inaction at the federal level has dispersed huge amounts of power into the states, with the conservative 6-3 majority on the nation’s highest court embracing an extreme vision of federalism. Issues like partisan gerrymandering have been fully punted to state courts, with abortion and other vital rights close behind.
As is often the case, Republicans have built a strong, centralized system for funding state supreme court races. Democrats don’t have an equivalent national group, but a number of state-level grassroots organizations have targeted judicial elections in recent years, often raising and spending millions of dollars. All bets are off for 2022, however, with a highly distracted and anxious Democratic donor class trying to match Republicans dollar for dollar to protect majorities in the House and Senate. Massive state-level losses, however, could be far more devastating for progressives and for American democracy.
Many state-level officials, judges, and federal judges made prudent choices in 2020 and 2021 to oppose the Trump campaign’s efforts to overturn the 2020 election, the Supreme Court chief among them. But the cases and demands for investigations brought forth two years ago were poorly thought out, spurious, wide-ranging, and contradictory. If the next presidential election is closer, as it was in 2000, and the GOP has had four years to prepare, 2024 could be a much different story. As the Roberts Court continues to embrace federalism, we could very well live in a world where the presidency is decided at the whim of a single state supreme court justice.