Dark Money Groups to Spend Millions in State Supreme Court Races

From the Brennan Center for Justice at NYU School of Law:

In the last two months, outside groups like Judicial Crisis Network and the NRA have spent more than $8 million to support or oppose Judge Brett Kavanaugh’s nomination to the U.S. Supreme Court. With 29 states holding supreme court elections this November, the same groups may now turn their attention to state judicial races.

The Brennan Center for Justice at NYU School of Law will track, analyze, and publish data on television spending in these campaigns, leading up to the November 6 elections. Detailed ad data for individual candidates and groups, including spending estimates and storyboards provided by Kantar Media/CMAG, will be available on the Center’s Buying Time page.

“Million-dollar outside spending, misleading attack ads, and partisanship are fast becoming hallmarks of state judicial elections,” said Douglas Keith, counsel in the Brennan Center’s Democracy Program. “And these are just some of today’s threats to judicial independence. State legislatures are working to increase their control over, or their partisan advantage in state courts. The president has attacked judges. Now, national groups that conceal their donors will likely again pump millions into state supreme court races.”

These races will determine who sits on courts that often provide the final word on cases covering crucial areas including election and environmental law, reproductive rights, and public education funding. State courts hear 95 percent of all cases.

States with judicial races to watch in 2018 include:

• Arkansas, which is holding a runoff to a May election in which national groups have already spent $1.2 million. The Judicial Crisis Network, which does not disclose its donors, has spent more than any other group in that race so far. Its ads have led to lawsuits alleging some are so misleading that TV stations should be prohibited from running them.
• Michigan, which saw $4.3 million of spending in its 2016 state supreme court election, including more than $2.5 million in unreported dark money. One candidate this year, a Republican-appointed justice, was threatened with losing her party’s support when she voted to allow a redistricting reform ballot measure to move forward. Another justice who voted to stop the ballot measure is also running to keep his seat on the court.
• North Carolina, which saw $5.4 million in spending in a 2016 race that shifted the court’s ideological balance to the left. $4.7 million of that spending was from outside groups that partially or completely conceal their donors. One Democrat and one Republican are challenging a Republican incumbent for a seat previously filled through a nonpartisan election. Voters will also decide this November on a controversial proposed constitutional amendment to give the legislature greater authority to select judges to fill judicial vacancies.
• Ohio, where judicial candidates themselves raised $3 million in two contested races in 2016. There will be two contested seats on the ballot this November, including one open seat.
• West Virginia, where 20 candidates are running for two seats. Those seats are up for election following the resignation of two justices after an ethics scandal which also led the West Virginia House to impeach the remaining justices. The circumstances of the impeachments suggest an attempt by legislators to use the scandal to increase the court’s conservative majority. The 2016 supreme court race for a single seat in West Virginia saw $5 million in spending.

Information about all states holding judicial elections and the candidates running is available here.

For national trends, read Who Pays for Judicial Races?, the latest in the Brennan Center and National Institute on Money in State Politics’ Politics of Judicial Elections series.