Three new judges will be elected to the Pennsylvania Supreme Court tomorrow in one of the most important elections in the country.
This race is immeasurably important. Yes, it's important because state supreme courts have the power to make important decisions on issues that matter. But in Pennsylvania the stakes are even higher, not only for the state but nationwide, as the justices elected tomorrow could possibly even influence America's electoral map in the future.
Between the election and many scandals, it's been a crazy year or so for the Pennsylvania Supreme Court, filled with racism, misogyny, pornography, special interest money, attack ads, judges allegedly threatening other judges, and other embarrassment and corruption.
As of now, there are currently two Democrats and two Republicans on the Supreme Court. The party that wins at least two out of the three seats tomorrow will have a majority. There are seven candidates—Democrats Christine Donohue, Kevin Dougherty, and David Wecht; Republicans Judith Olson, Michael George, and Anne Covey; and Independent Paul Panepinto. Both liberals and conservatives are encouraging voters to simply vote down the ballot.
Here are the things you need to know about tomorrow's judicial election.
1) Voters haven't had this much power in 300 years.
In Pennsylvania, the seven justices run in partisan elections only if there is no incumbent. Once elected to the bench, justices are subject to retention elections every 10 years. Because retention elections notoriously favor the incumbent, its extremely hard to take out a sitting Supreme Court judge. In fact, it's only happened once.
But there are no incumbents this time around, meaning the state has three partisan elections tomorrow. This is more than just unusual. In fact, the last time there were three seats open was in the 1700s.
See below for more important things to know.
2) These judges have a ton of power.
Whether they admit it or not, judges do determine policy. In just the past few years, courts in Pennsylvania have taken on issues like voter ID, journalism and libel, fracking, and Miranda rights. Within the next few months they are expected to take on the death penalty. And Pennsylvania courts have recently and will again have a say in worker's rights issues, including contractor liability and the right to locally-enacted paid sick leave. The local right to gun control regulation is also likely to be decided by the court.
And don't forget the kicker: The Pennsylvania Supreme Court potentially has the power to affect redistricting on the state level. While most states give the state legislature power to decide both congressional and state legislative redistricting, Pennsylvania does things differently. If the majority and minority party leaders can't agree, the Supreme Court appoints a person to the five-person Legislative Reapportionment Commission.
The process means the court potentially has significant influence on state legislative redistricting, including the way partisan power is distributed in the state legislature. That's actually a big deal, since the state legislature is who ultimately decides how congressional districts are drawn in one of the most important swing states in the nation.
In other words, the judiciary's role in state legislative redistricting may have an impact on how congressional districts are drawn in the future. If Republicans win, that could be a big blow to Democratic electoral power.
3) There's a ton of money being spent on the race.
Special interests and corporations recognize just how much power state supreme court judges have, and are willing to spend to get the right people on the court. Thanks to Citizens United, there are few limits on how much money can be spent on a candidates as long as donors go through SuperPACs.
A staggering $10 million has been put into this election alone, breaking the state record. Unions and trial lawyers have been behind a lot of the spending, and the money has largely benefitted Democratic candidates. Republicans, however, have emptied their pockets, too—just a few weeks ago, the Republican State Leadership Committee announced that they would spend at least $1 million over the last two weeks of the election.
4) Unfortunately, voters typically know nothing about state supreme court races, and voter turnout is likely going to be pretty low.
Since there are no congressional seats or presidential candidates on the ballot tomorrow,, anemic turnout is expected. If history is any indication, no one really know or cares about judicial elections. This puts candidates and grassroots activists in Pennsylvania in a difficult position: they are facing what Charles Geyh called the "Axiom of 80."
"Eighty percent of the public favors electing their judges; eighty percent of the electorate does not vote in judicial races; eighty percent is unable to identify the candidates for judicial office, and eighty percent believes that when judges are elected, they are subject to influence from the campaign contributors who made the judges' election possible."
Geyh was talking generally, but Pennsylvania pretty much fits the bill. The last time there was a contested election in Pennsylvania was 2009, and just about 20 percent of voters turned out. In 2007 and 2011 respectively, about 26 percent of voters showed up—better, but still dismal. Philly is electing a new mayor tomorrow, which could be good for turnout. But overall, we're probably looking at pretty low numbers on Tuesday—likely less than half of 2012's turnout.
So why is the turnout so low if the election is so important? The truth is that, as Geyh pointed out, people just don't really know anything about judges. They don't realize how much influence judges have on their lives, even if they never once have to step foot in a courtroom.
Not to mention that even if people wanted to know the records of these judges, they'd have a hard time finding the information. Four of the seven candidates were once trial judges, but there's no easy way to find an overview of their judicial decision history if you want to know, for example, who they sentenced to prison and why. There's a lack of good resources for voters looking to make an informed decision.
5) The Pennsylvania Supreme Court has been plagued by racism, sexism, and pornography scandals.
Clearly, the court is in need of serious reform.
In the past year, more than one justice has sent misogynistic, racist, pornographic, and highly offensive e-mails to other state officials.
One of the three empty seats up for grabs once belonged to former Justice Seamus McCaffrey, who resigned after it was discovered that he sent hundreds of pornographic and explicit pictures and videos through his email.
And in October, one of the current Justices, a Republican named Michael Eakin, was discovered to have sent racist and sexist emails from a secret email account. Many of the messages were sent between Eakin, defense attorney Terry McGowan, and Pennsylvania Deputy Attorney General Jeffrey Baxter. From The Daily Beast:
One email from Eakin [...]suggests a battered wife treat her wounds by “keeping her mouth shut.”[...]Another email from Eakin contains a joke about a man using a Taser to rape a woman.[...]
McGowan, Eakin, and Baxter also shared jokes at the expense of Muslims, black students, and women. Several pictures depict women as animals: one with deer antlers, one naked and on all-fours, costumed like a pig (“How do you know your house is infected with swine-flu?”).
One joke sent by McGowan describes a teenage Middle Eastern suicide bomber, and a mother who laments “They blow up so fast, don’t they?”
In one email, Baxter asks Judge Eakin to slap Eakin’s staffer’s ass during a holiday party, and “let [him] know how it was.”
This man is serving on the Pennsylvania Supreme Court right now and has said he will not resign. Needless to say, he doesn't sound particularly impartial. Not to mention he was exchanging these e-mails with other court officials, including defense attorneys. Having a man with these views on the bench cannot be good for the advancement of strong progressive policies, especially for women and minorities.
6) These judicial races are really hurting criminal justice reform.
While criminal justice reform is getting bipartisan support, mass incarceration is still very much alive. Part of that is because much of the elected judiciary has to be "tough on crime" to keep their jobs. Big business, tort reform advocates, trial lawyers, and unions pour money into advertising in big judicial races like this one. But they don't fund ads about a judge's votes on business issues, because voters aren't motivated by that.
What does motivate voters, however, is fear. And judicial advertisements play off of that, resulting in an overly harsh judiciary. According to a new report, from 2013 to 2014 56 percent of judicial advertisements nationwide were about criminal justice and 82 percent of attack ads criticized a judge's record on crime. Often, the ads are Willie Horton-esque, claiming a judge was too soft on a criminal who, once released, committed another heinous crime. These tough-on-crime ads are all voters really see, even though state supreme court justices are faced with a much wider array of issues. The race in Pennsylvania is no different—many of the attack ads are about a candidate not being tough enough on crime.
But the biggest problem with these advertisements is that they make judges more punitive, more likely to rule for the prosecution, and more likely to stuff more criminal defendants in our already bloated criminal justice system. The Center for American Progress did a study on the correlation between donations and a candidate's record on crime by studying 5,000 rulings in seven states. They found that the more money donated, the more likely there was to be a vote for the prosecution. In some states with contentious and expensive races, such as Mississippi and Wisconsin, justices ruled against criminal defendants 90 percent of the time.
The effect trickles down from the supreme court. Elections for trial and appellate court judges aren't nearly as competitive, and they handle far more criminal cases. Still, the "tough on crime" narrative undoubtedly influences them too—they are bound to the "tough on crime" precedents set by the supreme court. Plus, they know that if they are to ever run for higher office, they will be attacked for any decision resembling "soft on crime."
7) Your vote really counts.
Look, it's simple. If you vote in Pennsylvania, you have to show up at the polls tomorrow. Your vote really does count. You have the power to decide whether the state Supreme Court goes progressive or conservative.
This may be the last partisan election for the Pennsylvania Supreme Court. There's a group of state representatives working to change the electoral system to an appointment system.
Tomorrow's race has big implications for workers rights, criminal justice reform, environmental justice, and countless other important issues. A Republican win tomorrow will be a huge blow to the progressive movement.
