In just under a month, Pennsylvanians will vote in the state Supreme Court race. In October 2022, then-Chief Justice Max Baer (D) passed away, leaving both a vacancy on the bench and a hole in democracy’s line of defense.
This election is about the future of the court and the people of Pennsylvania. Though Democrats currently hold a 4-2 majority on the court even with the vacancy, three of the four Democratic justices — Christine Donohue, David N. Wecht and Kevin M. Dougherty — will be up for reelection when their 10-year terms end in 2026.
Only 24 states elect justices to their respective state Supreme Courts. Of those, eight states — Pennsylvania included — hold partisan state Supreme Court judicial elections in which the candidates run with a party affiliation. In the Keystone State, Democrats have held the majority on the state’s highest court since 2015.
As was the case in Wisconsin this past April, this state Supreme Court race is on track to be one of the most expensive judicial elections the state has experienced. On the Democratic ticket is Judge Daniel McCaffery, while the Republican candidate is Judge Carolyn Carluccio. The two candidates running to fill the vacancy offer differing paths for the state and its people.
McCaffery is currently a judge on the Superior Court of Pennsylvania and was the Democratic Party’s endorsed candidate during the primary. He is endorsed by a slew of union and trade organizations as well as multiple major reproductive rights groups and the Sierra Club. McCaffery has raised over $2 million with the larger contributions coming from unions and the Democratic Legislative Campaign Committee.
Carluccio is currently a judge of the Montgomery County Court of Common Pleas and was the Republican Party’s endorsed candidate during the primary. As McCaffery has pointed out, Carluccio “ran as a pro-life, pro-gun candidate, and then right after the … primary season’s over, she scrubbed all references to pro-life and pro-gun from her website.” Carluccio, who does not have an endorsement section on her campaign site, has raised $3.4 million. Of that, she received $2.7 million from the Commonwealth Leaders Fund, a PAC primarily funded by conservative billionaire Jeff Yass.
If Republicans regain the majority in 2026, beginning with a shift in power from this upcoming election, conservatives will control the court as redistricting kicks off in 2030.
In 2018, the state Supreme Court struck down the state’s congressional map, ruling it was unconstitutionally gerrymandered to benefit Republicans. In the party-line opinion, the court ruled the districts “clearly, plainly and palpably” violated the state constitution and blocked the map from remaining in effect for the 2018 midterm elections.
Author of the opinion, Justice Debra Todd (D) also strongly denounced gerrymandering and its consequences: “[i]t is axiomatic that a diluted vote is not an equal vote, as all voters do not have an equal opportunity to translate their votes into representation. This is the antithesis of a healthy representative democracy.”
But redistricting is only one of the potential ramifications of this race.
Just ahead of Election Day in November 2022, with an even split of justices following Baer’s death, the court issued a deadlocked, 3-3 ruling in Ball v. Chapman, ordering that counties could not count undated mail-in ballots (ballots that were timely cast and valid but missing a date on their outer return envelopes) and wrongly dated mail-in ballots (ballots that were timely cast and valid but have an incorrect date, such as the voter’s birthday, on their outer return envelopes).
Currently, there are three voting rights cases in state-level court that could potentially end up before the Pennsylvania Supreme Court. One lawsuit brought by a failed Republican candidate is challenging the results of the 2022 midterms. The second lawsuit brought by members of a group called the Lycoming County Patriots is challenging the results of the 2020 election, though the lawsuit was filed over a year after the election. The third lawsuit, filed in August of this year, was brought on behalf of a right-wing “election integrity” group and is challenging the state’s allowance of Uniformed and Overseas Citizens Absentee Voting Act voters to register to vote without photo identification.
In 2020, the Pennsylvania Supreme Court stood against the onslaught of lawsuits filed by the Trump campaign and its allies.
Of former President Donald Trump’s 65 lawsuits seeking to overturn the presidential election and undermine democracy, 14 lawsuits were filed in Pennsylvania. Five of these post-election cases made it to the state Supreme Court, where the Democratic majority rebuffed each argument to dismantle the democratic process:
- In re: Canvassing Operation
- Donald J. Trump for President, Inc. v. Bucks County Board of Elections
- In re: Canvass of Absentee and Mail-In Ballots of November 3, 2020 General Election
- Ziccarelli v. Allegheny County Board of Elections
- Kelly v. Pennsylvania
The 2020 Ziccarelli decision saved 8,329 votes from being thrown out. In its opinion, the Pennsylvania Supreme Court ruled that omitting certain details from the ballots’ outer envelopes did not “warrant the wholesale disenfranchisement of thousands of Pennsylvania voters… [T]he power to throw out a ballot for minor irregularities… must be exercised very sparingly and with the idea in mind that either an individual voter or a group of voters are not to be disenfranchised at an election except for compelling reasons.”
Demonstrating how critical just one state Supreme Court justice is, this decision is now at odds with last year’s ruling on the undated and incorrectly dated ballots in Ball.
As it stands, Trump is likely to be the Republican presidential nominee for 2024. However, even if he is not, the fervor of election denialism has taken hold of the Republican Party. Drummed up by Trump’s flagrant disregard for our country’s democratic ideals, the Republican attack on democracy has not ended with President Joe Biden’s inauguration and courtrooms across the country continue to be the arena.
With this probable future in mind, Jamie Perrapato of Turn PA Blue, highlighted in a comment to Democracy Docket, the importance of this November’s down-ballot races. Perrapato explained, “This year’s local races will also determine how Pennsylvania runs its 2024 presidential elections. Counties, not the state, run elections — and the county boards of elections that certify results are on the ballot this year for the first time since the 2020 presidential race… Our courts on every level are vital to ensuring the results of elections are respected and that ballot access and voting rights protected, which the GOP is doing everything in its power to curtail.”
But more than the right to vote is on the line in Pennsylvania.
In a comment to Democracy Docket, New Pennsylvania Project’s CEO Kadida Kenner contextualized the race’s wide-reaching implications, “There’s too much at stake this year including; access to healthcare, equitably funded schools and voting rights themselves. With the nation’s high court punting major decisions such as access to abortion to the states, state courts are increasingly becoming more powerful.”
Since last year’s U.S. Supreme Court decision in Dobbs v. Jackson Women’s Health Organization overturned the constitutional right to abortion, citizens have been fighting to regain the right. The decision upended nearly five decades of precedent and, critically, sent the matter back to the states to decide, as Kenner referenced.
Signe Espinoza, executive director of Planned Parenthood Pennsylvania PAC, further explained to Democracy Docket, “There’s a slim majority now on that court that supports sexual and reproductive health care, and we need to do all we can to protect it. Putting an anti-abortion extremist on the bench this year means the majority could flip in two years. We can’t take that chance, especially after we saw the strategic work the other side did to overthrow a generation of precedent with Roe.”
McCaffery is endorsed by the Planned Parenthood Pennsylvania PAC and just received the second-ever judicial endorsement from Reproductive Freedom for All, formerly known as NARAL Pro-Choice America. Carluccio has received money and endorsements from various anti-abortion groups.
Across the country, recent litigation has demonstrated that state Supreme Courts are critical bulwarks in the fight to defend democracy and civil rights.
As the chair of the Pennsylvania Democratic Party state Sen. Sharif Street said in a statement to Democracy Docket, “Maintaining a strong Democratic majority in state judiciaries matters, especially in the battleground state of [Pennsylvania].”
Last week, in an effort to maintain that strong Democratic majority McCaffery was endorsed by the Working Families Party (WFP). In the resounding endorsement, Steph Drain, Philadelphia political director for WFP, reminded voters of everything that’s at stake. “The courts wield enormous power over our freedoms, whether it’s abortion rights, workers’ rights, our children’s right to an education, or even something as fundamental as our right to pick our own leaders…We’re going all-out for Judge McCaffery.”
It is likely that the battleground state will be home to a similar onslaught of post-election litigation in 2024. Four years ago, the fate of the presidential election and more than 220,000 ballots came down to one swing vote in the Wisconsin Supreme Court’s ruling of Trump v. Biden. With that decision and countless since it is demonstrably clear that every pro-democracy vote on a state Supreme Court bench matters.