Brennan Center Judicial Races Report: States to Watch in 2016

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Editor’s Note: This is the second in a two-part blog featuring Brennan Center analysis on judicial races and spending.

Several states seem likely to attract high-spending interest groups and politicized races this year, based on early spending and fundraising patterns and public statements. Already, candidates have booked TV ads in six states for the fall, totaling $1.1 million, according to a review of TV ad contracts. Additional information about the election landscape can be found on the Brennan Center’s supreme court elections page.

  • Kansas: The state supreme court election this year is already highly charged, as multiple interests have coalesced to support or oppose the ouster of four justices standing for retention (an up-or-down vote where the judge stands unopposed). The state Republican Party, as well as Kansans for Justice and Kansans for Life, are vocally opposing the justices, citing decisions they have made on issues such as the death penalty, abortion, and education funding. On the other side, four former governors (Republicans and Democrats) are campaigning in support of the justices, and Kansans for Fair Courts is also promoting retention efforts. However, loopholes that exempt retention elections from the state’s disclosure laws will make it difficult to discern who is behind any money spent in these races.
  • Montana: Outside interests appear to be marshaling around a Montana supreme court race for an open seat, between law professor Kristen Juras and district court judge Dirk Sandefur. Juras was endorsed by the Montana Chamber of Commerce, and Montana GOP officials and the head of the Montana Petroleum Association hosted a fundraiser for her. On the other side, the Montana Trial Lawyers Association has reportedly amassed more than $110,000 in contributions to its spending arm the Montana Law PAC, although it has not yet endorsed a candidate. Sandefur has booked $121,385 in airtime on broadcast TV, and as of Aug. 27, had raised $414,000. Juras has raised over $140,000, and has not yet booked airtime. In 2014, Montana’s supreme court election set a state record, with $1.5 million in spending, 75 percent of which came from outside groups.
  • North Carolina: This year’s election, in which Justice Robert Edmunds faces challenger Judge Michael Morgan, represents an opportunity to potentially shift the ideological composition of the Court from Republican-affiliated to Democratic-affiliated judges. The state’s primary election on June 7 saw more than half a million dollars in spending according to state disclosures, a majority of it from the North Carolina Chamber of Commerce in support of Justice Edmunds.
  • Ohio: Supreme Court elections in Ohio are typically high-cost; every election since 2000 has seen at least $3 million worth of spending, including a record $11 million in 2000. This year, the Buckeye State has already seen one candidate, Pat DeWine, who will face off against Cynthia Rice in one of two races for an open seat, spend almost $644,000 in ad bookings for the fall. Rice has not yet purchased airtime.
  • Washington: Two controversial supreme court decisions regarding education funding have sparked an effort to replace three sitting high court judges. One 2012 ruling ordered the state to increase school funding, ultimately leading the Court to fine the legislature for its inaction, while a 2015 decision found that charter schools could not receive public funds. In response, the state legislature recently passed a new charter school law. One challenger, Greg Zempel, benefitted from $230,000 in outside spending during his primary, including almost $130,000 from Stand for Children WA PAC, which is funded by charter school supporters, and $100,000 from Judicial Integrity WA, which was co-founded by the former majority leader of the Washington Senate.

Other states to watch include Kentucky, Mississippi, Louisiana and New Mexico, where supreme court candidates have already booked television ads for the fall, and Michigan, which has seen multi-million dollar races in recent years.

Methodology: Data on TV ad buys for the November elections is based on an analysis of contracts posted on the FCC’s website. Spending totals are current as of 12:30 PM ET on Sept 13, 2016. To analyze primaries and early races, the Brennan Center looked at every state in which at least one television ad was broadcast in 2016 (AR, ID, NC, OH, TX, WI, WV). Spending data came from estimates from Kantar Media/CMAG, with the exception of West Virginia, where we relied on state disclosures. The analysis of ad tone and themes was based on internal coding of ads by the Brennan Center. The analysis of dark money followed the same methodology described in this recent Brennan Center report. For one major spender, the Republican State Leadership Committee, we limited the dark money analysis to the top 20 contributors, as available on opensecrets.org.

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