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    Monday, December 05, 2022

    Abortion decisions give urgency to state supreme court midterm races

    Mary Kay O'Brien had been working for a year to drum up interest in her campaign for Illinois Supreme Court, struggling to convince voters that it would affect them as a presidential or gubernatorial race would.

    But "within 24 hours" of the U.S. Supreme Court's decision to end federal protections for abortions, levels of interest in judicial races like hers skyrocketed, said O'Brien, a Democratic appellate judge.

    "There's no question that it energized and mobilized, especially young people and women," she said. "It's something that I think was just a complete alarm bell to some people."

    All over the country, the Dobbs decision has drawn attention to the power of state judiciaries, transforming once-sleepy races into high-energy elections that could bring out voters focused on abortion and other civil rights issues, candidates, legal experts and party officials said. Even where abortion has not yet been on the docket since the fall of Roe v. Wade, courts are making decisions on hot-button issues from gerrymandering to affirmative action.

    In Ohio, Illinois, Michigan and North Carolina, which have partisan elections for state supreme court, this year's races could determine which party controls the state's top court, according to the University of Virginia's Center for Politics. They are among the 30 states holding state supreme court elections this year, with 85 seats on the ballot, according to a Ballotpedia database, though many of those are nonpartisan races or elections to retain a sitting judge, like in Kansas.

    In the nine states that hold partisan elections for state supreme court, candidates are barred from stating how they would rule on a specific case or issue. Instead, they rely on highlighting the types of cases they might rule on if elected or drumming up interest in the judiciary generally, which has become easier since Dobbs, candidates said.

    "The second you say you're on the state supreme court, they're suddenly very interested in my election and generally don't pass me by and get irritated, which they might have done before," said Briana Zamora, a New Mexico State Supreme Court justice running to keep her seat. "They are very interested in understanding more about what impact we have as a state supreme court on their rights."

    Zamora added that Democratic county chairs in New Mexico are organizing rallies and canvassing events specific to judicial candidates for the first time.

    In recent years, issues such as abortion and gun control have made judicial elections more political and polarizing, said Richard Briffault, an election law expert and professor at Columbia Law School.

    "My guess is some combination of the 2020 election and all the focus on election decisions, and now Roe and Dobbs and maybe some stuff on gun-control legislation, where the Supreme Court has put them in the news, so you're likely to see them contested in state elections," Briffault said.

    Even before Dobbs, state judicial races were attracting more money, with the 2019-20 election cycle setting a record of $97 million spent on state court elections nationwide, according to a report from Brennan Center for Justice at NYU Law School.

    "States that have contested elections are going to see a ton of money coming in," said Billy Corriher, an author who focuses on state courts and judicial independence.

    A judge's political affiliation isn't always indicative of how they will rule - the Republican-led Ohio Supreme Court struck down a GOP-drawn congressional map as gerrymandered earlier this year - but the elections are increasingly drawing the attention of partisan groups.

    The Republican State Legislative Committee, which typically backs legislative candidates, is pledging more than $5 million for state judicial races this year - a record - though most will be focused on states where redistricting is an issue, according to its spokesman, Andrew Romeo.

    Its Democratic equivalent, the Democratic Legislative Campaign Committee, plans to support judicial candidates for the first time this election cycle, spokeswoman Gabrielle Chew said.

    "Our main focus still remains state legislatures, but we know that state Supreme Courts wield tremendous power over state laws like abortion access, redistricting maps, and election implementation," Chew said in a statement. "Like state legislatures, Democrats historically have overlooked them to their detriment. Here at the DLCC, we're looking to change that."

    In Illinois, a group of progressive political operatives launched an organization last month dedicated to increasing awareness of the state Supreme Court race, according to co-founder Terry Cosgrove.

    Democrats, in particular, see state supreme court races as a way to bring out supporters if they can convince them the races could have a direct effect on their right to an abortion. In Kansas, a referendum to remove abortion protections from the state's constitution failed amid unexpectedly high turnout, including from independents and Republicans.

    Texas Democratic Party Chair Gilberto Hinojosa said the party will try to convince Texas voters that supporting Democratic justices will achieve a "much quicker result" in protecting abortion rights, as opposed to trying to end the filibuster and pass a federal guarantee in the U.S. Senate, for example.

    Hinojosa said he hopes for a repeat of 2018, when Democrats beat 19 incumbent Republicans on the state's appellate courts, giving the party a majority on half of the state's 14 appeals courts.

    Texas Republican Party Chair Matt Rinaldi said in a statement that GOP enthusiasm for judicial races was already high before Dobbs, pointing to a record number of candidates filing for judicial office and high turnout in the March primary.

    "As the U.S. Supreme Court continues to abate liberal policies and return to government by the Constitution, we anticipate even stronger enthusiasm for our judicial candidates," Rinaldi added.

    In Fannin County, Texas, which voted for Trump by 63 points in 2018, Erin Nowell said she heard from a group of older White women who were upset and recalling their experiences pre-Roe at a recent club meeting.

    "It's affecting so many people that those low-propensity voters are more energized," said the appellate judge running for Texas Supreme Court as a Democrat. "They have a reason that, hey, this is why you need to come out and vote, and so we're seeing more energy and more motivation and more surge in people who might have sat it out."

    Michigan State Rep. Kyra Harris Bolden, D, who is running for state Supreme Court, is nine months pregnant, something she has made a focal point of her campaign.

    "I think I get more pregnancy questions than issue questions," she said. "I want people to feel that they have something to vote for and not just against, and be excited to vote and excited to vote for me."

    New Mexico Democratic Party chair Jessica Velasquez said it has been a challenge in the past to find volunteers to knock on doors for judicial candidates, but the Dobbs decision "really fired up our base here."

    "When I'm talking to donors on the phones, the judiciary comes up in almost every single conversation, and that is something brand new," Velasquez said, adding that county party organizers are hosting judicial-specific campaign events in response to the enthusiasm.

    Thomas Montoya, an Albuquerque lawyer running for New Mexico Supreme Court as a Republican, said he expects to get more questions about abortion in the coming months thanks to Dobbs, but plans to make clear to voters he would not take a position on such an issue without hearing the facts of a case first.

    "The Supreme Court is not a legislative body, as Dobbs pointed out, nor should it be," Montoya said. "So if anyone were to make a policy decision in seeking a judicial role, that's a clear disqualification - we don't decide policy issues."

    North Carolina has been plagued with legal battles over the state's congressional maps, with conflicts playing out in its courts over partisan gerrymandering. In February, the state Supreme Court struck down redistricting maps and ordered the legislature to redraw them, a dispute that delayed North Carolina's primary elections.

    Democrats hold a razor-thin 4-3 majority on the high court, and the Roe and Dobbs decisions have upped the stakes for this November's race.

    Shortly after the Supreme Court overturned Roe, Democratic North Carolina Gov. Roy Cooper signed an executive order ensuring people in the state could access an abortion, which is still legal there. North Carolina has been inundated with people traveling there to receive a legal abortion, local news media have reported.

    Republicans in the GOP-led state legislature have not made plans to pursue abortion legislation this year because Cooper would veto laws that are passed, but the two seats up for election on the state Supreme Court this year could give Republicans the majority.

    "So reproductive rights might not be talked about by the candidates, but it's on the ballot in so many states right now," Corriher said.

    While there is some discussion on the U.S. Supreme Court rulings, they have not been dominating election conversations for the state's GOP, said Michael Whatley, chairman of the party.

    Whatley said the most important issues in the state are inflation, gas prices and the southern border. He added that the party has been focusing on raising money for its Judicial Victory Fund, while staying on "high alert" for the recent Supreme Court decisions.

    "Fortunately, we had already built this apparatus and were ready to go when the decisions came down," Whatley said.

    On the ground, judicial candidates are seeing more grass-roots engagement and enthusiasm with their campaigns ahead of races in November, where prominent issues such as abortion could be at stake.

    "We're in the middle of summer parade season - normally when we show up in past cycles, judges are kind of at the back of the pack," said Brian Morris, who leads the New Mexico Democrats' efforts on judicial races. "Judges are up in front and center now."

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