On Tuesday, Wisconsin voters appeared to have narrowly elected a strident conservative judge to replace a retiring progressive justice on Wisconsin's Supreme Court, although the Republican-backed candidate's 6,000-vote lead is poised to go to a recount. This race, which would extend the GOP's majority to a five-to-two advantage, should serve as a wake up call for Democrats at both the state and federal, because state supreme courts are a critical battleground for stopping Republican gerrymandering and voter suppression when other options are unavailable.
Fortunately, as we'll detail below, the 2020 elections give Democrats a chance to gain key state court seats in five big states that have seen extreme Republican gerrymandering this past decade, and doing so could pave the way for fairer redistricting and an end to Republican-backed voter suppression laws next decade. Indeed, the last few years have shown just how much state courts matter when Democrats, after gaining a majority on Pennsylvania's Supreme Court, struck down the GOP's congressional gerrymander and replaced it with a much fairer map in 2018.
As shown on the map at the top of this post (see here for a larger version), Michigan, North Carolina, Ohio, Texas, and Wisconsin are the states where 2020 supreme court elections would either give Democrats a majority or set them up to gain one in a subsequent election that could still be used to curtail gerrymandering later next decade. Below, we'll look at each state:
• Michigan: If Democrats re-elect Justice Bridget Mary McCormack and flip the open seat held by retiring Republican Justice Stephen Markman, they would gain a four-to-three majority. Michigan voters recently created an independent redistricting commission, but progressive control of the court could help ensure that the maps the commission produces are fair as they were intended to be. Candidates are nominated by the parties, but the November general election is nonpartisan.
• North Carolina: Democrats currently have a six-to-one majority and have a chance to sweep all seven seats if appointed Chief Justice Cheri Beasley and Justice Mark Davis win election to a full term and Democrats flip the open seat of Republican Justice Paul Newby, who is challenging Beasley for chief justice instead of seeking re-election. All three races feature regular primaries and a partisan November general election.
• Ohio: If Democrats defeat Republican Justices Sharon Kennedy and Judith French, they would gain a four-to-three majority. Ohio has two convoluted commission systems for congressional and legislative redistricting, respectively, but as we have previously demonstrated, these supposedly good-government systems actually have major loopholes that are poised to allow Republicans to gerrymander again if there's no court majority willing to constrain them. Candidates are nominated by the parties, but the November general election is nonpartisan.
• Texas: Republicans hold all nine seats on the court, and only three of them are up in 2020. However, if Democrats defeat at least two of the Republicans up (Chief Justice Nathan Hecht and Justices Jeffrey Boyd and Brett Busby), Team Blue would be within striking distance of a majority in 2022, when three more Republican-held seats would be up for election. These elections are regular partisan races.
• Wisconsin: Although it's possible a recount could change the outcome of Tuesday's election, conservative Judge Brian Hagedorn's apparent victory would give Republicans a five-to-two majority. Republican Justice Daniel Kelly is up for re-election in 2020, and flipping his seat would give Democrats an opportunity to later gain a majority when the next election takes place in 2023 featuring a Republican incumbent. These elections are nonpartisan with an April general election.
Just as in Pennsylvania, practically every state constitution contains protections that could be used to ban extreme partisan gerrymandering. Since such lawsuits would be litigated solely under the relevant state constitutions, they would likely be insulated from getting overturned by the conservative majority on the U.S. Supreme Court, which refused to reverse 2018's ruling from the Pennsylvania high court despite its long hostility to policing partisan gerrymandering.
As we have long argued at Daily Kos Elections, judicial elections are bad for democracy and the rule of law because they inject partisanship into what should be an impartial system. However, progressives can't afford not to contest them when they are the system most states use and Republicans have poured millions into electing partisan justices who unquestioningly uphold Republican gerrymandering, voter suppression, and other undemocratic power grabs. Although the U.S. Supreme Court is unlikely to significantly curtail gerrymandering, state supreme courts provide a crucial alternative to ensuring maps are fairer and protecting the right to vote.