SANTA FE, N.M. (AP) — The U.S. Supreme Court isn’t the nation’s only judicial battleground.
The high courts in a number of states are on the ballot Tuesday in races that will determine whether Republicans or Democrats have a majority, and the stakes are high for both sides. This year alone, state supreme courts have been thrust into the spotlight to decide politically charged cases over voting rights, race and governors’ coronavirus orders.
Next year, it could be abortion, health care and redistricting.
Among the most hotly contested races are the ones for two high court seats in Michigan, where a Republican-leaning majority has undercut emergency virus restrictions by Democratic Gov. Gretchen Whitmer.
Whitmer has been openly feuding with the justices after a 4-3 partisan vote in early October that invalidated her emergency health orders.
“The Supreme Court decision in my state has created a lot of confusion and worked to undermine the work that we’ve done here,” Whitmer said. “We crushed our COVID spike early, our economy rebounded. ... It’s all at risk.”
Whitmer’s administration quickly reinstated virus measures under a different law, but the governor said the high-court ruling has fostered public confusion about the need to wear masks and maintain social distancing. Michigan’s virus cases and deaths are again spiking. The state’s seven-day average for new daily cases has risen over the past two weeks from 1,488 per day to 2,852 as of Thursday.
The rushed U.S. Supreme Court confirmation of Amy Coney Barrett, coming just days before the presidential election, has cast a spotlight on the growing politicization of the nation’s courts. President Donald Trump and Senate Majority Leader Mitch McConnell, both Republicans, have spoken openly about their success in packing the federal judiciary with conservative jurists.
State supreme court races have become similarly partisan and often attract millions of dollars in campaign spending, much of it from groups outside the state.
Among other hot button issues, the coming year could see state high courts decide matters on eviction moratoriums, private school vouchers, abortion and redistricting.
”By and large, it’s these state high courts that are going to have the final say,” said Douglas Keith, an attorney at the nonpartisan Brennan Center for Justice at New York University,
In New Mexico, the supreme court has upheld aggressive pandemic health orders from Democratic Gov. Michelle Lujan Grisham under long-established laws that have rarely if ever been invoked. They limit public gatherings to five people or fewer, mandate face masks and imposes a self-quarantine after travel.
The rulings have infuriated Republican Party leaders and lawmakers who say local businesses are being ruined by the restrictions while online and big box stores prosper. The disagreement is at the heart of races for two high court seats in which Democratic incumbents are campaigning to be retained.
“With public health orders, the Legislature has spoken. They’re the ones who have set up this emergency health act,” said Justice Shannon Bacon, who is defending against Republican challenger Ned Fuller, a county prosecutor. “Our job is to enforce the law unless and until somebody demonstrates that it’s unconstitutional.”
Fuller said the governor and state heath officials don’t have free reign during a public health emergency.
“Then the question is, they have to do it in the least restrictive way,” he said. “And then the next question is, are we applying the law equally?”
In Ohio, a 5-2 Republican majority is at stake on the state high court in two races that are attracting outside money.
Republican strategist Karl Rove has solicited donations to help GOP Justice Judith French in her race against Democratic challenger Jennifer Brunner, an appellate court judge. Rove’s group is citing concerns about the upcoming redistricting, even though Ohio voters in 2018 approved a constitutional amendment to decrease partisan influence in that process.
The Judicial Fairness Initiative, a group that advocates for conservative state justices, has been running attack ads against Brunner. It received at least $3 million from the Republican State Leadership Committee, according to filings with the Federal Election Commission.
The money is even flowing to states with safe partisan majorities.
Millions of dollars are being spent in Texas, where all nine state supreme court justices are Republicans and the high court has not had a Democratic justice since 1998.
It’s a reaction to gains Democrats have been making with district and regional appellate courts that serve as the pipeline for appeals, said David de la Fuente, a Dallas-based political analyst for the moderate Democratic group Third Way.
During the 2018 elections, Democrats extended control of appeals courts covering Dallas, Houston and Austin.
“The Supreme Court is the Republicans’ and big businesses’ last line of defense,” de la Fuente said. “That is why the money is pouring in.”
The politically conservative Judicial Fairness PAC, underwritten indirectly by the oil sector through the group Engage Texas, is spending at least $1.2 million to support four incumbent Republican justices, according to data on television ad buys from the Brennan Center.
The incumbents, including Chief Justice Nathan Hecht, a 31-year veteran of the court, are defending their seats against a slate of all-female Democratic candidates that include women of Black, Taiwanese and Latina heritage.
In North Carolina, the state’s first Black female chief justice, Cheri Beasley, is being challenged by fellow Supreme Court Justice Paul Newby, a Republican. The campaign has been marked by divisions over racial justice and the state’s history of gerrymandered voting districts.
Democrats currently hold six of the court’s seven seats, with three up for election this year.
The partisan composition of the court will help determine the outcome in looming battles over Republican voter identification initiatives, the application of capital punishment and a taxpayer-funded scholarship program for K-12 children to attend private schools.
Newby targeted Beasley’s seat after being passed over in the chief justice selection process by Democratic Gov. Roy Cooper. Under Beasley’s leadership, the court ruled in June that death row inmates can use a repealed law addressing racial discrimination to seek life sentences.
Newby also criticized Beasley for suspending jury trials because of the coronavirus pandemic and for her remarks in response to the killing of George Floyd by Minneapolis police. Beasley lamented unequal treatment for Blacks by North Carolina’s criminal justice system.
“Frankly, you can be seen as undermining or questioning the impartiality of judges, or district attorneys, of juries,” Newby said at a candidate forum.
Beasley hasn’t wavered: “In our courts, African Americans are more harshly treated, more severely punished and more likely to be presumed guilty,” she said.
