Three swing states will hold elections to their supreme courts over the next 18 months, potentially altering court compositions amid key cultural and political flashpoints such as abortion, guns and redistricting.
Between 2023 and 2024, Pennsylvania, Ohio and Michigan will hold elections for several seats on their supreme courts, which have the final word on matters of state law regarding abortion and gerrymandering, among others. These seats are likely to be highly contested as partisan groups seek to bring litigation to change the law on these issues, political strategists and academics told the DCNF.
“After President Trump’s nominations, the U.S. Supreme Court has a firm conservative majority. Future [progressive] policy victories in federal court are likely to cease, and some may even be rolled back. This is going to shift litigation over divisive social issues to the states,” said Dr. Robert Leider, a professor of law at George Mason University’s Antonin Scalia Law School to the DCNF. He added that “[s]tate supreme courts are going to deliver important rulings on abortion, guns, and redistricting.”
In Ohio, three seats on the state supreme court — which has a 4-3 Republican majority — will be subject to elections in 2024, including that of Republican Justice Joe Deters. Should Democrats flip Deters’ seat, it would result in a Democratic majority, which experts believe will affect litigation on ballot initiatives in the state.
“Democrats and their supporters are trying to get a ballot initiative to establish a non-partisan re-districting commission,” said Shawn Donahue, a professor of politics at the University of Buffalo, to the DCNF. “Changing the court’s composition will give them partisan predictability,” he claimed, implying that a court dominated by Democrats is likely to rule in their favor.
Republicans are attempting the same strategy, Donahue noted, regarding a ballot proposition in November on whether to amend the state constitution to enshrine abortion rights into law. After a preceding ballot initiative on Aug. 8 failed to raise the threshold for such initiatives’ passage from 50% to 60%, the GOP-controlled Ohio Ballot Board changed the language of November’s initiative to change the word “fetus” to “unborn child.”
“There’s controversy over the wording of the question that’s going to be on the ballot. The Secretary of State wants to alter the wording so that there’s less of a chance that it would pass,” he said. A lawsuit regarding the ballot initiative’s language was filed at the court on Tuesday.
Partisan elections to Ohio’s top court are a new phenomenon, having begun in 2021 and making Ohio one of just a few states to have such elections.
“I think the Republicans felt that it would be to their advantage to put the party labels next to their nominees’ names,” said Donahue, suggesting that elections were likely to yield more conservative justices.
Elsewhere, in Michigan, the terms of two justices — Republican David Viviano and Democrat Kyra Harris Bolden — are expiring in 2024. Michigan’s supreme court currently has a 4-3 Democratic majority as of 2021, which has since ruled in favor of left-wing interests, such as approving an abortion rights ballot initiative in 2022 even as the Michigan Board of Canvassers was deadlocked on the question.
Among the new issues that could come before Michigan’s court is the state’s congressional map, which was redistricted in 2022 and led to the loss of a Republican-leaning seat, according to FiveThirtyEight news. Federal courts do not hear non-racial cases of partisan gerrymandering, which makes Michigan’s court the final venue for the outcome.
“Democrats don’t like to lose—and if they have to turn the Michigan State Supreme Court into [a] miniature partisan legislative body making law from the bench, they’ll do so,” said Peter Roff, a Republican campaign strategist and contributing author for Newsweek.
“[R]edistricting will be a significant issue,” said Leider. Even as Michigan’s congressional maps are drawn by an independent commission, the state’s supreme court has exclusive jurisdiction to review their decisions.
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