‘Gotten worse’: How swing state supreme courts could swing the presidential election

Several battleground states passed election reforms after the 2020 election, but those laws might be only as good as state supreme courts allow them to be.

The states of Arizona, Pennsylvania, Wisconsin, Georgia, and North Carolina all enacted election reforms that include enhanced voter ID laws and bans on private money funding administration of elections.

“In most of the battleground states, state supreme courts have gotten worse,” Jason Snead, executive director of the Honest Elections Project, told The Daily Signal. “Also, some of the executives in those states—the governors, attorneys general, secretaries of state—may not defend existing election laws.”

After the 2023 elections, Democrats have a grip on the high courts in Michigan, Wisconsin, and Pennsylvania. But Republican justices have majorities in Arizona, Georgia, and North Carolina. Nevada is split, according to Ballotpedia.

Control of state supreme courts could have a significant impact on the outcome of the Nov. 5 presidential election and other down-ballot races, said Hans von Spakosky, manager of the Election Law Reform Initiative at The Heritage Foundation.

“Unfortunately some state supreme courts have become just as political as some of the idealogues that have been confirmed to federal judgeships,” von Spakovsky, a senior legal fellow at Heritage, told The Daily Signal. He added: “If it’s a close election, I have no doubt we will be inundated with litigation.”

Republican-leaning justices on state supreme courts hold an edge across all states, with 27 to 17 courts, according to Ballotpedia. However, the seven battleground states likely will decide the future president and makeup of Congress for the rest of the country.

Because so many state judicial races are officially nonpartisan, Ballotpedia established a “State Partisanship” index for each state supreme court and measured the “confidence” each of the two major political parties had in judges.

Among executive branch officials who supervise elections, Democrats had big election wins in 2022 for secretary of state seats in Arizona, Nevada, and Michigan. Georgia’s Brad Raffensperger is the only Republican elected to that office in a battleground state.

In Pennsylvania, Gov. Josh Shapiro, a Democrat, appointed Secretary of State Al Schmidt, a former Republican election official from Philadelphia. Two battleground states, North Carolina and Wisconsin, have state boards overseeing elections.

Since the 2020 presidential election, the North Carolina Supreme Court flipped from Democrat to Republican and the Wisconsin Supreme Court flipped from Republican to Democrat.

After Democrats won a majority on the Wisconsin Supreme Court in 2023, the court reversed decisions by the prior conservative majority, notably on the legality of ballot drop boxes.

“I am concerned. You never know what the [Wisconsin] Supreme Court will do; there are such activists on the courts,” Annette Olson, CEO of the MacIver Institute, a Wisconsin-based think tank, told The Daily Signal.

In the 2020 election, Pennsylvania was among the most controversial states.

State law says absentee ballots must be postmarked and received no later than 8 p.m. on Election Day. But then-Gov. Tom Wolf, a Democrat, wanted to allow ballots to be counted as long as they arrived by Nov. 6—three days after the election. Wolf used the COVID-19 pandemic as a rationale. Republican legislators challenged the policy in court.

But the Democratic majority on Pennsylvania’s partisan elected state Supreme Court decided 4-3 to allow mail-in votes to be counted if they arrived by Nov. 6,. The high court declared that if postmarks or dates are missing or illegible, ballots still would be “presumed to have been mailed by Election Day” unless evidence showed otherwise.

“Many of the judges on the Pennsylvania Supreme Court acted unethically,” Heritage’s von Spakovsky said. “They made promises during their elections on how they would rule on issues, which is per se unethical, and nothing was done about that.”

Wolf’s extension of time for mail-in ballots was expected to be an emergency measure that wouldn’t affect future elections; the deadline for mail-in ballots has returned to the close of polls.

However, a Pennsylvania state appeals court recently ruled that mail-in ballots must be counted even if a voter puts the wrong date on the return envelope.

In 2023, Pennsylvania and Wisconsin each had elections for a single seat on their high court. Democrat Daniel McCaffery won the Pennsylvania seat, which was being vacated by Justice Max Baer.

More significantly, Democrats flipped the Wisconsin Supreme Court when Janet Protasiewicz ousted conservative Justice Patience Roggensack. Wisconsin’s judicial elections are officially nonpartisan, but parties and organizations endorse candidates and it is widely known who is liberal and who is conservative, according to Ballotpedia.

In 2022, Republicans flipped the North Carolina Supreme Court by winning two seats. Ahead of the 2020 election, Democrats had a 6-1 majority on the court, according to Ballotpedia. With that election, Republicans shaved the margin to a 4-3 Democratic majority.

After the 2022 flip and heading into the Nov. 5 election, Republican justices hold a 5-2 majority on North Carolina’s high court. Some of the key issues in the supreme court contests of 2022 were voter ID, felon voting, and redistricting maps, The Carolina Journal reported.

Arizona, Georgia, Michigan, and Nevada also had state supreme court elections in 2022, but the majority didn’t change as a result.

In the 2021 election in Pennsylvania, Republicans had a seat on the state Supreme Court but Democrats held the majority.

“Conservatives who spend a lot of time trying to get individuals elected into political posts, for example on state legislatures, have neglected state courts—particularly in states where judges are elected, they need to focus on a concentrated effort to elect good, conservative lawyers to state judgeships,” von Spakovsky said.

The Heritage legal fellow added that several studies show that electing judges doesn’t make the judicial process more or less political than appointing state judges.

“The difference is with judicial appointments in states, it’s a small group of people who influence who gets appointed, whereas if judges get elected it’s voters who make that decision, not a powerful lobbying group,” he said.

[Editor’s note: This story originally was published by The Daily Signal.]

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