State courts across the country stepped up to protect voters and the integrity of our electoral system. But now those courts are under attack.
While federal courts have long been considered the show horses of our judicial system, state courts are the real work horses. More than 90% of all cases are heard in state courts, spanning major issues like reproductive freedom, protections in the workplace, air and water purity, neighborhood safety and school funding.
Unlike federal judges, who are nominated to life-time terms by the president and confirmed by the U.S. Senate, state judges are selected and seated in a variety of different ways depending on the constitution of the state they represent.
State courts have long been a crucial forum for protecting the freedom to vote of Americans and 2022 was no exception. According to a recent Democracy Docket report, over 75% of democracy-related lawsuits filed in 2022 were brought in state court, demonstrating their outsize impact on voting rights.
Last year’s midterms arrived at a time of economic and political turbulence, with partisan groups working overtime to undermine trust in elections and extremist politicians pulling out all the stops to limit access to the ballot box. Despite that, judges across the country protected voters and the integrity of the electoral system. Here are just a few examples:
- In North Carolina, the state Supreme Court issued two important rulings striking down a map of illegally gerrymandered electoral districts as well as a discriminatory photo ID law.
- In New York, a state court judge ordered the Dutchess County Board of Elections to ensure students’ access to the polls by requiring a polling place on or near the Vassar College campus
- In Arizona, a state court judge ruled that a county was not permitted under state law to conduct a hand count of election results, which would have been slower and less accurate. Relying on conspiracy theories that emerged in the aftermath of the 2020 presidential election, extremists pushed for hand counts that can create uncertainty and chaos.
- In Wisconsin, a state court judge stopped an attempt by a right-wing group to block the counting of military ballots.
- In Michigan, a state court judge tossed out an “unprecedented” lawsuit by a right-wing candidate that wanted to throw out mail-in ballots in Detroit.
While these actions demonstrate just how essential state courts are in protecting the right to vote, they aren’t without their weaknesses when left to the whims of anti-democratic forces. Take the case of Wisconsin, where the state Supreme Court banned all drop boxes less than two years after the state set up over 500 drop boxes, which allowed voters to cast their ballots safely and conveniently amidst the COVID-19 pandemic. This kind of anti-voter ruling is just one example of what happens when partisan extremists are allowed to mess with state court systems.
For evidence of partisan meddling in state courts, look no further than judicial elections, which have exploded with dark money spending. The same wealthy interest groups dominating state and federal elections across the country have now set their sights on state courts. Unsatisfied with their influence over lawmakers, these groups look to gain control over court systems, treating judicial elections like just another luxury item to be bought. In Florida, recent reports paint a troubling picture: a pipeline of judges handpicked by right-wing extremists ready to take power. Meanwhile, in North Carolina, conservative lawmakers’ plan to politicize their state Supreme Court finally bore fruit, thanks to a 2017 law that requires candidates to run in partisan primary and general elections and thus forcing judges to run on their political affiliations. With a new 5-2 Republican majority on the court, conservatives have now filed a motion for the court to “rehear” and reverse its most recent decision in the partisan gerrymander case from which Moore v. Harper originated.
In states where politicians have been unable to corrupt their courts, they’ve opted instead to muzzle the power of judges. Extremist politicians in at least 25 states introduced more than 70 bills that would have politicized or undermined the independence of state courts, according to analysis by the Brennan Center for Justice. In Georgia, for example, a new anti-voter law makes it harder for judges to extend polling place hours if there are issues.
Emboldened by their political donors and legislative allies, some state court judges have refused to remove themselves from cases in which they have clear conflicts of interest. This is the opposite of the fair or impartial. It’s a total failure of ethics.
Luckily, there are some concrete ways to help ensure state courts are impartial and independent protectors of rights and freedoms, such as protecting judicial independence, guarding against special interest influence on the courts, and achieving a diverse bench. Advocates in states like Ohio, North Carolina, Montana, Illinois, Michigan, Kentucky and Kansas put a spotlight on dark money flooding into their respective state court races, while also working to increase voter participation in selecting judges. In the face of legislatures politicizing the judiciary, advocates fought against proposals that would have usurped power from the courts, stopping or stalling many of them in states like West Virginia, Pennsylvania, Iowa, Montana, Alaska and Arkansas.
Looking ahead, 2023 promises to be another battle for judicial independence. Upcoming state Supreme Court elections in Wisconsin and Pennsylvania have already begun to draw attention — and spending — from the same extremist interest groups. The new year will bring plenty of opportunities for extremist groups and lawmakers to attack democracy in court. As stated in Democracy Docket’s recent report, “State courts were the preferred venue for Republicans and conservatives seeking judicial intervention in elections” in 2022, with “nearly 60% of the election cases filed in state courts in 2022 were brought by conservative and Republican organizations”.
The lesson is clear. Now more than ever, voters must keep making noise around the importance of state courts and push for fixes that get politics out of courtrooms and ensure the judicial branch functions as a check and balance on out-of-control state legislatures, not just another political body.
Manuel Madrid is a senior communications associate on the Inclusive Democracy team at ReThink Media, where he works to elevate the voices of national and state advocates fighting for fair courts and an independent judiciary.