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OK, today's post thus far has been a bit of a downer. Let's try, at least, to end on an up note. We had an item yesterday discussing how the Georgia Election Board's stunts are not likely to be effective, as there are some pretty powerful guardrails in place. Today, lawyer-reader A.R. in Los Angeles has agreed to write a complementary piece, looking specifically at the state Supreme Courts in the various swing states. Without further ado:
There's been a lot of attention on the political parties of state governors and secretaries of state, given their role in certifying election results. But what about state courts? More and more, as this very site pointed out just this week, they're being called upon to weigh in on election-related issues. Republicans have already filed 115 lawsuits to challenge election procedures, remove voters from the rolls or otherwise disenfranchise voters. The Republican AG of Georgia, Christopher M. Carr, has said he will sue the Georgia Elections Board to enjoin the series of edicts they issued, which are designed to gum up the elections in that state. Robert F. Kennedy Jr. continues his efforts in swing state courts to get his name OFF the ballot... after he worked/sued to get his name ON the ballot in those same states. In Florida, Gov. Ron DeSantis (R) continues to use state agencies to harass and intimidate voters who support Amendment 4, which would enshrine abortion protections in Florida's constitution. And Republicans continue their efforts in North Carolina to disenfranchise as many voters as possible ahead of Election Day. And then there's this: "Swing state election officials say they'll sue counties that won't certify 2024 result."
How are these folks likely to fare in their state courts? As a reminder, when Donald Trump lost in 2020, he unleashed his army of lawyers who brought upwards of 60 lawsuits to overturn the election results. He lost them all, even in courts with a judge Trump himself had appointed. That was very encouraging news for the integrity and independence of our federal court system, even with the U.S. Supreme Court being firmly in the bag for right-wing Republican causes, and the small matter of its decision finding that presidents are largely above the law. (The jury is still out as to whether that decision will actually help Trump escape his legal troubles.)
In normal times, state elections boards want everyone to be able to vote, and do not engage in partisan attempts to create chaos in the polling process or lay the groundwork for sowing doubts about the integrity of our elections. But here we are. If a group—or, for example, Georgia's AG—challenges some of these last-minute changes, the courts must hear those cases and rule on them. Contrary to some reports, this is the judiciary's job. Truth be told, the courts would rather not be involved—it creates a lot of work for them in an already-overburdened system and also requires an expedited process, which stresses the system further.
So, the first thing I would say is: Give the courts a break. Judges and their staffs are working very hard under very difficult conditions in an increasingly thankless job, and what they do is incredibly important. That leads to a second point: We need to stop bashing the courts and painting every judge as a partisan hack. Nothing could be further from the truth. The political party of the official who appointed the judge isn't necessarily indicative of how the judge will decide cases. Most judges are independent and take pride in their oath to interpret the law fairly and without bias—ideologues driven only by partisan considerations are rare. Finally, just because an outcome seems to align with a judge's alleged political affiliation does not mean it was ideologically-driven. That last point is particularly critical to remember.
There are numerous examples of this, but I'll note one: The Arizona Supreme Court recently ruled that an abortion ban that originated in 1864 was enforceable following the Dobbs decision. The media immediately concluded that because the majority of justices had been appointed by a Republican governor, the Court was in the bag for Republicans. This was incredibly lazy reporting. If anyone had bothered to read the decision, they would see that the Court was, in fact, doing its job. The law was not only still on the books, but it had been recodified multiple times, most recently in 1973, before Roe was decided. And yet the press erroneously continues to refer to this law as an 1864 abortion ban. The only reason it wasn't being enforced was because the federal constitution preempted it after the Roe ruling was handed down. Once the U.S. Supreme Court determined in Dobbs that reproductive rights are not fundamental rights under the federal constitution, that law was no longer preempted.
The only question before the Arizona Supreme Court, then, was whether subsequent abortion restrictions had impliedly repealed the earlier law. The Court, not unreasonably, held that no, the Arizona legislature had not intended to repeal the earlier ban. How did they know? Because the state legislature explicitly said that, in passing these other restrictions, they did not intend to repeal the law banning abortion. Had the Court ignored this evidence of intent, they would have been legislating from the bench and engaging in the type of activism we so often decry. Instead, the legislature then explicitly repealed the law, which is how the system is supposed to work. So, beware of the easy, oversimplified "analysis" of a court's ruling and the temptation to tar the court with a partisan brush unless the evidence is really there. Incidentally, two of the Justices who were in the majority are up for retention in this election, and Democrats are engaging in a concerted campaign to oust them as punishment for this decision. These justices performed their role responsibly and properly, and efforts like that only serve to further politicize our judiciary.
Without a painstaking review of each state Supreme Court's judicial opinions, another way to glean a court's independence is the process by which the justices are selected. Many states use an independent judicial nominating commission to vet and select candidates for appellate courts and some lower courts. There are strict rules on who can serve on these commissions. For example, in Arizona, of a 10-member body, no more than 5 can be of the same party. The commission selects three qualified applicants to recommend to the appointing official and that official has a certain amount of time, generally 60 days, to select one of the three candidates. Unfortunately, while this method could ensure a court's independence, in most of the states where the method is in use, it's "governor-controlled." This means that the governor can either appoint a majority of the commission members or can simply ignore the candidates recommended by the commission and appoint his/her own. A "hybrid" process means that neither the Bar association nor the Governor control a majority of the commission appointments. Each state has different rules; you can read a rundown here.
Of the swing states in this election, here are the ones that use this process: Arizona (governor-controlled), Florida (governor-controlled). And states with this process where abortion rights are on the ballot: Colorado (governor-controlled), Missouri (hybrid), Nebraska (hybrid). Interestingly, in Missouri, the Court sided with the proponents of an abortion rights ballot measure against a Republican challenge, finding that it did not violate initiative petition requirements and, thus, could remain on the ballot. Similar challenges failed in Nebraska and Arizona.
In Florida, five of the seven Justices were appointed by DeSantis. This is probably the second biggest problem area among key states' Supreme Courts in 2024. The Florida Court recently overturned its earlier decisions that had found that the state Constitution's privacy clause protected a woman's right to choose. This decision allowed Florida's 15-week abortion ban to take effect. Now, there's an amendment on the ballot to restore those rights, but Republicans, and DeSantis in particular, are doing everything they can to use all the levers of government to keep the people from deciding this issue. The Court denied a Republican challenge to remove the amendment from the ballot, finding that it was properly certified. That's good news. Currently, there's a case pending in the Court that challenges Florida's health department's use of its website to peddle propaganda about the amendment. Supposedly, the Court has "expedited" this case, but gave a rather lengthy briefing schedule and no stay has been put in place. So, while the Court is looking at this issue, voters are still faced with false information from an official government website.
In Wisconsin, the Justices are elected and, although it's ostensibly a non-partisan election, the candidates made their views about hot-button political topics known, including gerrymandering and abortion rights. Currently, the Court is 4-3 with Democrats in the majority. Just on Friday, the Court said it would decide whether RFK Jr. should remain on the ballot. Recently, the Court denied an attempt by Republicans to oust Wisconsin's elections administrator. That seems to indicate that they will not look kindly on any efforts to gum up the works or refuse to certify ballots.
Montana's Supreme Court justices are also elected in non-partisan elections, though that state's Supreme Court lived up to its libertarian roots recently when it held that abortion rights are protected in the Montana Constitution. They are showing themselves to be independent and not likely swayed by partisan politics.
The 9-member Georgia Supreme Court was appointed by Governors Brian Kemp and Nathan Deal, both Republicans. Kemp isn't on board with election shenanigans, and Carr, the Republican AG, is already suing to enjoin the Georgia Election Board from passing laws that they are not empowered to enact. Given that, it's unlikely the Court will try to tip the scales toward Trump and that they will quickly enjoin the Georgia Elections Board's unauthorized actions. Further demonstrating their independence, on Tuesday they expressed skepticism that third-party candidates West and de la Cruz should remain on the ballot. Secretary of State Brad Raffensperger (R) and the Republican Party argued those votes should count; the latter was certainly motivated by the fact that the votes would come out of Kamala Harris' hide. But the Court is interpreting a state law with strict requirements for petitions to get independent candidates on the ballot, and seems to be adhering to it.
Eight states have partisan elections, including Pennsylvania. The current Court is 5-2, with 5 Democrats and 2 Republicans. But again, one can't assume a case's outcome just by party affiliation. Case in point: The Pennsylvania Court recently ruled that the law says what it says regarding a date requirement on absentee ballots, even if the rule is dumb. That rule is more likely to cost the Democrats votes, so those justices are clearly not in the bag for the blue team. If the legislature wants to change that law, that's up to them, not the courts. Also remember that in Pennsylvania, the state Secretary of State is Republican Al Schmidt, who has proven himself to be fair and nonpartisan in his administration of elections. In 2022, he sued several counties that had refused to certify their election results and courts ordered the counties to certify per PA's clear election laws. I wouldn't expect any different outcome should the same occur this time around.
North Carolina also has a partisan election, but unlike the Pennsylvania Court, the Carolina justices have a clear partisan agenda. This Court is the most concerning, even more so than Florida's Court. They are aggressive ideologues, as their recent decisions have shown. It is currently 5-2, with Republicans in the majority. One of the Democrats is up for re-election this November. The Court has already sparked controversy in a 4-3 decision to allow RFK Jr. to get off the ballot, even though his request was made with too little time for counties to reprint ballots to meet a 60-day deadline to mail out absentee ballots. One Republican dissented with the Democrats. That is not a good sign in terms of any shenanigans Republicans may pull if they lose. The party has already sued to remove over 200,000 voters from the rolls due to alleged registration issues—that case is still pending. As this site has pointed out, as recently as yesterday, the most harmful efforts occur before votes are cast. We'll see how far the NC Court is willing to go to suppress the vote.
With North Carolina ostensibly in play, this could become a factor after the election as well. The Court has already signaled a willingness to ignore election law to help Donald Trump. Even with a Democratic governor and secretary of state, if the Court decided to wade in to rule that certain election results can't be certified, there's really nowhere else for the governor to go. But as (Z)'s item noted yesterday, the NC Supreme Court's chicanery could land the state out of the picture altogether if the votes are not ascertained by the Dec. 17 deadline.
And then there's Michigan, which has something called the "Michigan method." Although it sounds like a code name for a War Games scenario, it's actually an election method that combines a party convention-style selection of judicial candidates with a non-partisan election. So, even though the candidates are selected by their parties, they run without their party affiliations identified. How has that worked in Michigan? So far, so good. Earlier this month, the Court refused to allow RFK Jr. to remove his name from the ballot this close to the election, which is in line with Michigan election law.
The bottom line is that most of the state Supreme Courts in the states where any mischief is likely to occur have demonstrated their integrity and independence such that we can depend on them to protect the franchise and the integrity of our electoral process. Obviously, the courts that don't function properly cause a lot more mischief—see Supreme Court, United States and Cannon, Aileen—and there are reasons to be worried about Florida and North Carolina, as noted above. But the judiciary, as a whole, held in 2020 and there's every reason to believe it will hold again in 2024.
Thanks, as always, A.R.! (Z)