Judicial campaigns and elections

  • February 9, 2018
    Guest Post

    by Laila Robbins, Research & Program Associate, Brennan Center For Justice

    State courts—where 95% of all cases in the U.S. are filed—are powerful. Just last week, the Pennsylvania Supreme Court found that the state’s gerrymandered congressional maps violated the state constitution and ordered the legislature to re-draw the maps before the upcoming midterm elections. State supreme courts are typically the final arbiters on state law questions, from whether Kansas has adequately funded its education system to whether a tort reform law in Arkansas violates the state constitution. Many of these rulings, like the Pennsylvania redistricting decision, have national implications.

  • December 18, 2017
    by Samuel Rubinstein, Strategic Engagement Fellow, American Constitution Society
    As the eyes of the nation were on Alabama for the high profile special Senate election between Roy Moore and Doug Jones, the Alabama Supreme Court issued a decision that raises troubling questions of partisan decision-making by state court judges. This corrosive effect that campaign money and politics have had on impartial justice was highlighted by Partisan Justice, a recent ACS report.
    At issue in Alabama was a Montgomery County Circuit Court ruling which ordered the state not to destroy digital scans of paper ballots made by voting machines. Although paper ballots are retained, plaintiffs argued that public records laws mandate that the digital scans also be kept. The scans are important, they further argued, because only digital records are tabulated in the absence of a hand-recount, and machines can be tampered with. The state argued that the requested relief would require many machines to be reset with little time before the election. Siding with plaintiffs, the lower court wrote that, “the only action being asked of [the Secretary of State] at this point is to send a communication through a system that already exists and is routinely used,” to instruct local officials. Nonetheless, the Alabama Supreme Court reversed the injunction, allowing the records to be destroyed. Ultimately, the election was decided by 1.5 percentage points, avoiding an automatic hand-recount.
  • September 6, 2017

    by Samuel L. Rubinstein, American Constitution Society Strategic Engagement Fellow

    As attorney Jack D’Aurora persuasively argued in a recent column in the Columbus Dispatch, rampant spending and lax ethics rules have contributed to a crisis of confidence in the Ohio judiciary. According to the Brennan Center’s New Politics of Judicial Elections Report, in 2014, more than $3.2 million was spent on Ohio Supreme Court races alone, the 5th most in the nation, with more than 22% of that coming from outside groups. This isn’t new, as Ohio saw more TV ads for Supreme Court elections than any state, every year in the 2000-2009 decade.

  • April 10, 2017

    by Caroline Fredrickson

    Soon after President Donald Trump nominated Judge Neil Gorsuch to the Supreme Court, the Judicial Crisis Network (JCN)—a conservative secret-money group that spends millions of dollars on ads attacking judges—promised to spend up to $10 million in support of his nomination. Representing a major attack on the fairness and impartiality of our judicial branch, this same group, among many other organizations, has been increasingly involved with big-money efforts to help elect or attack their favored state supreme court judges—all behind a curtain of secrecy.

    When asked directly by Sen. Whitehouse about why these groups are so interested in supporting his nomination, Gorsuch responded, “You’d have to ask them.” For a Supreme Court candidate, this betrays an inexcusable lack of understanding and concern for the menacing role that secret money has played in this Supreme Court nomination process and in many of our state judicial elections. “We don’t know because it is dark money,” Sen. Whitehouse countered a frustrated Judge Gorsuch about the secret money group, “I can’t [ask them]. I don’t know who they are. It’s just a front group.”

    The $10 million was in addition to the $7 million that JCN already spent in its effort to distort the record of Chief Judge Merrick Garland, Obama’s Supreme Court nominee who Republicans and JCN itself previously praised.

    At the state level, the group recently spent big to help persuade Arkansas voters to reject judicial candidates who JCN argued would favor injured individuals over corporate defendants. JCN spent far more money than any of the candidates. One of its ads criticized the Arkansas Chief Justice for a unanimous ruling to strike down a voter ID law, which JCN claimed could lead to “illegal immigrants voting.” Arkansas Business said the JCN ads should be “categorized as lies.” And in 2012, JCN ran a revolting last-minute ad attacking a Michigan Supreme Court candidate, exploiting the tragic death of a U.S. soldier to lie about the judicial candidate’s record. A recent report from the Michigan Campaign Finance Network found that $3.4 million was spent on the 2016 supreme court race there, with 50 percent of the money from secret sources.

  • April 5, 2017
    Guest Post

    by Nat Stern, John W. & Ashley E. Frost Professor, Florida State University College of Law

    The ability of politicians to utter falsehoods with legal impunity is evident today to perhaps an unprecedented degree. Less appreciated is that the overwhelming majority of judges in America qualify as politicians in the basic sense that they are chosen through some form of popular election. In the case of candidates for judicial office, however, nearly half of states codes contain a “misrepresent clause” barring deliberately false factual statements by judicial candidates.

    The basis for this ban is understandable and even admirable. In contrast to legislators and elected executive officers, judges are expected to serve as detached and impartial arbiters of the law. Dishonest campaign tactics may then be viewed as impairing the administration of justice, tarnishing the public image of the judiciary or even revealing a disqualifying character trait. Nevertheless, the misrepresent clause—as opposed to generally applicable bans on certain kinds of dishonesty like defamation and fraud—probably violates the First Amendment. This conclusion derives mainly from the confluence of three Supreme Court doctrines: stringent protection of political speech, application of this doctrine to restrictions on judicial campaign speech and refusal to regard false expression as categorically unprotected.

    It is a commonplace that unhindered political speech is essential to self-government and therefore lies at the heart of the First Amendment. Thus, the Supreme Court has repeatedly affirmed the privileged place of political expression in the hierarchy of First Amendment freedoms. Nor has the Court left any doubt that political campaign speech falls squarely within this protection. Accordingly, the Court has subjected restrictions on political expression to rigorous scrutiny.