Pennsylvania Has a State Supreme Court Primary Tomorrow

Tomorrow, Tuesday, May 16, voters in Pennsylvania will head to the polls for this year’s primary elections, where Republicans and Democrats will separately elect candidates to face off in November. On the ballot this year are municipal elections, including one to decide Philadelphia’s next mayor, as well as an election to fill a seat on the state Supreme Court left vacant by the death of Democratic Chief Justice Max Baer in October 2022. Whoever wins a spot on the state’s highest court will serve a 10-year term.

Since the Pennsylvania Supreme Court currently has a slim 4-2 Democratic majority, Baer’s death didn’t change partisan control of the court and Democrats will retain control no matter who wins this year. But the vacancy left by Baer’s death did have consequences, especially on election-related cases ahead of the 2022 midterms. 

Exactly one week before Election Day, the state Supreme Court deadlocked in a case over whether to count undated and wrongly-dated mail-in ballots. (Undated mail-in ballots are ballots that are timely cast and valid but are either missing a handwritten date on their outer return envelopes or have the wrong date.)

While the justices agreed that counting such ballots violates state law, they deadlocked over whether or not counting those ballots would violate federal law. As a result, the court instructed counties to not count these ballots after months of back and forth litigation in both federal and state court. Baer’s absence was felt in this last-minute ruling as the outcome could have been different had he been on the court. In the end, thousands of ballots went uncounted — the majority of which were from Democrats.  

Furthermore, as a swing state that has trended blue over the last few years, Pennsylvania has been rife with election litigation. In 2020, the Keystone State was ground zero for lawsuits challenging voting laws and election results. In 2022, Pennsylvania continued a similar trend, landing in the top three states with the most election-related litigation. Heading into 2024, we can expect another surge in Pennsylvania election lawsuits in the months leading up to, and after, Election Day, many of which will likely seek review from the state’s highest court.

While partisan composition may not be on the line, a Republican win would certainly ease the GOP’s path toward retaking a majority of the court in 2025. As shown by North Carolina’s recently elected GOP majority on its state Supreme Court, and the majority’s subsequent reversal of previously decided cases, state Supreme Court elections, though maybe not as high profile as other races, are nonetheless consequential for democracy.

Meet the Democrats running for the Pennsylvania Supreme Court.

There are two Democratic candidates running in this week’s primary: Deborah Kunselman and Daniel McCaffery, both judges of the Superior Court of Pennsylvania, one of the state’s two intermediate appellate courts.

Kunselman has been a judge since 2005 and was elected to the Superior Court in 2017. She has been rated as “Highly Recommended” by the Pennsylvania Bar Association and said in the association’s questionnaire that her “passion for the law and love of writing opinions” inspired her run for the state Supreme Court. In an interview, she highlighted her desire to “ensure the equal administration of justice for all people regardless of income.”

McCaffery, who has earned the official endorsement of the state Democratic Party, has served as a Superior Court judge since 2019 and began his legal career as an assistant district attorney in Philadelphia. His judicial career started in 2013 when he was elected to the Philadelphia Court of Common Pleas. Like Kunselman, McCaffery has been rated as “Highly Recommended” by the Pennsylvania Bar Association. He also told the association that he was motivated to run for the court because “Democratic Institutions including the judiciary are under duress…If elected, my priority will be to approach every case in a non-partisan manner. I will use my best efforts to restore faith in the judicial branch of government.”

In comments to the media, both candidates have been reticent to stake out any positions on important issues. However, when pressed about their stances on reproductive rights (a key issue in state court races nationwide), McCaffery said “I don’t think it’s incumbent upon me to interject my opinion” and Kunselman said she is “supportive of a woman’s right to choose.” McCaffery has also been endorsed by the Pennsylvania National Organization for Women and is “committed to upholding [individual rights and personal freedom], both as a candidate and your next Supreme Court justice.” He has also earned endorsements from multiple labor unions and elected Democratic officials.

The Republican candidates include a judge who put certification of the 2020 election on hold.

On the other side of the aisle, the two Republican candidates are Carolyn Carluccio, a judge on the Montgomery County Court of Common Pleas (the state’s trial court), and Patricia McCollough, a judge on the Commonwealth Court (the state’s other intermediate appellate court). Carluccio was endorsed by the Republican Party and was rated “Highly Recommended” by the bar association — although she’s also echoed some false election claims.

McCollough, who lost a Republican primary for the state Supreme Court in 2021, refused to participate in the bar association’s questionnaire and was rated “Not Recommended for failure to participate.” But that’s not the only unsettling aspect of McCollough’s candidacy. In November 2020, she ordered state officials to halt certification of election results, a decision that a higher court later threw out. She attended a rally hosted by election denier and failed gubernatorial candidate Doug Mastriano (R), who was at the U.S. Capitol on Jan. 6. In February of this year, she posed for a group photo that included an individual who was sentenced to prison for participating in the Jan. 6 insurrection. If McCollough wins the Republican primary tomorrow, there’s a chance someone who rubs shoulders with election deniers could be on the state’s highest court.

Whoever wins in November will play a role in overseeing Pennsylvania elections.

The Pennsylvania Supreme Court has played a key role in recent years in deciding how Pennsylvania’s elections are run. The court issued multiple rulings in 2020 and 2022 interpreting the election code and implemented new congressional maps in 2018 and 2021. The winner of the election this November will have a hand in any future decisions that affect Pennsylvania’s democracy. After tomorrow, we’ll find out which Democrat will make it to the next round — and if they’ll have to face off with a Republican who helped cast doubt over the state’s election in 2020.