In an election season that has seen an unprecedented blockade of President Obama’s Supreme Court nominee, Merrick Garland, it’s easy to overlook troubling developments for judicial selection at the state court level, where 95 percent of all cases are heard.
In total, 39 states hold elections to choose all or some of their judges. This November, 27 states will hold elections for seats on their highest courts. Early indicators suggest that several of these races will be dominated by special interest spending, a large portion of it secret money from groups that do not disclose their donors, according to an analysis by the Brennan Center for Justice of seven supreme court elections and primaries that were completed earlier in 2016. The likely upshot: greater negative campaigning, and voters, litigants, and potentially even judges in the dark about possible conflicts of interest.
Looking forward, the Brennan Center has also identified judicial election battlegrounds to watch this fall — the states where harsh and expensive supreme court races look likely, based on indicators such as spending in primaries, candidate fundraising, and statements by politicians and interest groups. In Washington and North Carolina, for example, interest groups spent six figures on radio and television ad buys during the primaries, while political leaders and interest groups in Kansas and Montana have raised the temperature of these states’ judicial races through public statements and endorsements. In Ohio, one supreme court candidate has already booked $644,000 in TV ads, in what looks poised to be a big-spending race for an open seat.
The Brennan Center is monitoring all state supreme court contests this fall and will be issuing periodic releases and analyses in the lead-up to Election Day. Research and data will be housed on the Brennan Center’s supreme court elections page.
“Special interests know that state supreme courts have tremendous power to shape the legal and policy landscape on everything from civil rights to tort reform, even beyond a state’s borders, and they have been pouring money into these races in recent years,” said Alicia Bannon, Senior Counsel in the Democracy Program at the Brennan Center for Justice. “Polling shows that 95 percent of the public believes campaign spending influences how judges rule in cases. With the rise of outside spenders that do not disclose their donors, we can’t even identify potential conflicts of interest. This poses a major threat to the integrity of our justice system.”
Troubling Early Trends: Secret Outside Spending & Attack Ads
The Brennan Center reviewed TV ad buys in the seven states that have already held a primary or early general election for their state supreme court this year, and where at least one TV ad was broadcast (AR, ID, NC, OH, TX, WI, WV). These elections suggest several trends to look for in November’s round of judicial contests.
- Outside Spending Dominated: To date, spending by outside groups has played a larger role in 2016 state supreme court elections than in past years. Candidates were responsible for only 35 percent of television spending in these early elections, compared to 42 percent overall in 2013-14 and 39 percent in 2011-12. All of the outside spending in 2016 to date has come from groups. The Republican State Leadership Committee, which describes its mission as “working to elect down-ballot, state-level Republican officeholders,” was the single largest outside spender, putting at least $2.2 million into races in three states (including television spending in West Virginia and Arkansas and radio advertisements in Wisconsin). While outside groups are distinct from judicial candidates’ campaigns, at least in theory, the separation is not always clear-cut. In February, for example, a Wisconsin Supreme Court justice uploaded b-roll footage of herself onto YouTube, which was then used in television ads by an outside group.
- Secret Spenders Predominated: Seventy percent of outside television spending came from so-called “dark money” sources, which do not disclose their donors. This dynamic raises particular concerns in judicial races, where dark money can obscure conflicts of interest in cases involving major spenders. Although data is limited, there are indications this reflects a much higher proportion of completely-undisclosed money than is seen in other state races. A recent Brennan Center study of state and local elections in six states found that 12 percent of outside spending in 2014 came from dark money sources. (The study further found that an additional 59 percent of outside spending came from “gray money” sources, entities that disclose donors in a way that makes the original sources of money difficult or impossible to discern. No gray money sources have been identified in any of the 2016 supreme court races.)
- Groups Went on the Attack: Television ads were also more negative than those seen in recent years. The rise of outside spending was a key factor. So far in 2016, outside groups were responsible for 69 percent of all negative ad spots — reducing the ability of candidates to control the tenor and substance of their own races. Overall, only 49 percent of all ad spots were positive in tone, compared with 79 percent in 2013-14 and 76 percent in 2011-12. What were the attacks about? One-in-four portrayed judges as “soft on crime.” There is growing evidence that these kind of election pressures lead to harsher sentencing in criminal cases.
- State Spending Records Fell: Of the three states that held contested off-cycle supreme court elections in 2016 (AR, WI, WV), two set state records for television spending (AR, WV). All three had more than $1 million in spending on television ads. Overall, more than $9.5 million was spent on TV in primaries and off-cycle races this year, according to estimates from Kantar Media/CMAG and West Virginia disclosure statements.
States to Watch in 2016
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.