Analysis

How The Presidential Race Shifted State Judiciaries

Law360 (November 12, 2020, 9:07 PM EST) -- Michigan maintained its battleground status in the 2020 presidential election. The majority of its voters cast their ballots for Democrat Joe Biden, a turnaround from when the state's electorate favored Republican Donald Trump four years before.

And Michigan's Supreme Court experienced a swing to the left this year as well.

Before November, Republican justices enjoyed a 4-3 majority on the high court bench. But in races for the two seats up for grabs in 2020, Democratic incumbent Justice Bridget Mary McCormack won reelection and Democrat Elizabeth Welch scooped up a seat vacated by retiring Republican Justice Stephen Markman, flipping the court's ideological majority.

Other swing states saw a similar pattern. In North Carolina, where Trump won, the 6-1 Democratic majority on the state's high court narrowed, with Republican Tamara Barringer defeating Democratic incumbent Justice Mark Davis. The GOP also swept the five intermediate appellate seats up for grabs in the state, taking two spots from Democratic incumbents and two open seats that had been held by nonpartisans, a relic from before the state switched to partisan elections in 2016.

And in Texas, where Trump won handily, so did Republicans in state Supreme Court elections for four seats, maintaining their monopoly on the high court.

The 2020 presidential election coincided with a banner year for judicial elections, with 78 state supreme court seats across the country up for grabs.

"You see a number of crucial state supreme court elections in states that are battlegrounds this year," said Douglas Keith, counsel for the Democracy Program at the Brennan Center for Justice.

In some of those key swing states, the presidential candidate who voters favored shared the same party affiliation as the state supreme court candidates who won, sometimes in upset victories. The federal contest played a role in shaping state judiciaries by flipping party control or narrowing the partisan divide on some states' highest courts.

"There's no question that politics and party affiliation played a role in judicial elections," said Cassandra Burke Robertson, a law professor at Case Western Reserve University.

That's not surprising, according to Northwestern University law professor Michael Kang, who studies judicial elections.

Voters often support one party all the way down the ballot. Those who identify as Republicans or Democrats are unlikely to change their affiliation from one election cycle to the next, Kang said. But for those in the middle, the election becomes a referendum — they either think it's time for a change or that everything is going well. That affects their sense about which party deserves to be in power, Kang said, and "that trickles all the way down the ticket to these state court races, too."

"The presidential race is going to have coattails," he said. "The big races at the top of the ticket tend to sometimes swamp or carry along the races at the bottom of the ticket. The state supreme court races, sometimes they're pretty prominent, sometimes there's a fair amount of advertising, but they certainly aren't as prominent as the presidential race or a gubernatorial race, and so often those are linked."

Ohio seemed to buck that trend, with Trump winning by an 8.1% lead as Democratic challenger Jennifer Brunner unseated Republican incumbent Justice Judith French on the state's high court.

But there are a few likely explanations for that. Justices aren't as well known as other candidates, and while Ohio holds partisan primaries, no party affiliation appears on the ballot in the general election.

That means voters might not have been able to readily identify the Republican, according to University of Cincinnati law professor David Niven. Ohioans often turn to random selection tactics for judicial candidates, he said, including "a strong tradition of favoring Irish last names."

"There's always a little bit of noise in the process of translating party turnout to judicial votes," Niven said. "There's a certain amount of voter confusion. You're working your way down the ballot, and we've taken away the party labels, so we don't have that as a guide."

Democrats may have had a better-than-average year in down-ballot races because so many of them voted by mail, which gave them time to research candidates with their ballots in front of them, a luxury that people who voted in person didn't have, Niven said.

While Republican justices still enjoy a majority on the Ohio Supreme Court, their grip is more tenuous than in years past. As recently as 2018, the GOP had complete control of the high court. Now, its one-vote majority rests in the hands of Chief Justice Maureen O'Connor, a centrist Republican who is considered a swing vote.

"It's more than a Republican court. It's O'Connor's court," Niven said. "She's in a position to be in the majority in every single opinion."

Further down the ballot, in state trial court and intermediate appellate court races, elections are determined at the county level, and that may not always reflect the overall leanings of the state.

Just as the congressional map didn't always line up with a state's presidential results this year — most notably, Republicans gained House seats in Minnesota, California, New Mexico and New York, all states where Trump lost — the trial and intermediate appellate court races also sometimes reflect local political leanings that don't align with the state as a whole.

While Texas' high court maintained its Republican monopoly, GOP incumbents lost five seats on the intermediate appellate court. That could reflect how some counties in the state are flipping, and why the Republican stronghold was considered a battleground this year.

Recently, parts of the red state have gone blue. During the 2018 midterms, Democrats won 31 out of 35 contested intermediate appellate court races. While Beto O'Rourke didn't win his Senate bid against Republican Sen. Ted Cruz, he energized Democrats and brought them to the polls, overwhelming the GOP vote in several counties. O'Rourke's supporters voted along party lines, supporting Democrats down the ballot, including at the state court level.

That phenomenon has been playing out in Texas for decades, according to Case Western's Robertson, who practiced in the state for 14 years.

"At a county level, I saw a lot of trial judges would get swept out of office as the county switched more from blue to red, and recently we've been seeing at the county level a lot of judicial elections changing from blue to red in one fell swoop," she said. "It's not a judge-by-judge thing. Every Republican judge in the county suddenly loses an election at once or every Democratic judge in the county loses the election at once."

These partisan sweeps, as well as party control of state high courts, are unlikely to have much effect on the everyday practice of law in those states, Robertson said.

"For the vast majority of cases heard in court, there's just no opportunity for a judge to have the leeway to rule in accordance with any party affiliation," she said.

But there could be some notable exceptions. For lower courts, the shift in ideology could lead to forum shopping, thanks to the perception that Republicans are more concerned with tort reform and protecting the rights of civil defendants, while Democrats are viewed as more plaintiff-friendly.

That's a generalization, according to Robertson, but she added that this ideological divide could affect jury awards, especially "if a judgment is very high and there is some [judicial] discretion about whether there is an unconstitutionally too high amount of punitive damages."

There are also particularly political questions that could end up in state courts.

Disputes over how congressional districts are carved out are likely to go to state court justices, after the U.S. Supreme Court decided in last year's Rucho v. Common Cause decision that federal courts lack the jurisdiction to decide gerrymandering cases. And should the U.S. Supreme Court overturn Roe v. Wade , abortion rights will become a state-by-state issue.

A shift in the ideological divide on a state high court could also strengthen the balance of powers. In states like Michigan and Ohio, where Republicans control the state legislature, a high court controlled by a different party or even a slimmer majority can serve as an important check on lawmakers.

That's a shift Niven expects to see in Ohio, where he said some basic provisions of the state's constitution have been defanged by justices who are reluctant to get in the way of the legislature.

For example, Ohio has a "one-subject" rule, which requires the legislature to limit the scope of each bill to a single topic. Yet one recent law governed the sale of puppies, the construction of cellular network facilities and minimum wage standards.

A series of Ohio Supreme Court decisions have declined to enforce the one-subject rule "to the point where it effectively had no meaning, no consequence," Niven said.

One such decision was the 2016 Ohio Civil Service Employees Association et al. v. Ohio case, which dealt with the 2011 state budget bill.

Writing for the majority, Justice French, who was ousted in last week's election, wrote that "the one-subject rule does not prohibit a plurality of topics, only a disunity of subjects."

"To accord appropriate deference to the General Assembly's law-making function, we must liberally construe the term 'subject' for purposes of the rule," she wrote.

That hands-off philosophy raised a question for Niven: whether the state's high court would act as a "rubber stamp" for lawmakers.

"When you have supermajorities on the court in the same direction as the legislature, effectively the court is muted," he said.

--Editing by Aaron Pelc and Emily Kokoll.

For a reprint of this article, please contact reprints@law360.com.

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