The most critical races impacting democracy, reproductive rights are those no one is talking about

The most critical races impacting democracy, reproductive rights are those no one is talking about

July 30, 2022 0 By Ellen Novack

In Florida, we have the right to privacy enshrined in our state constitution. Yet the interpretation on what that means depends a lot on who is sitting on the bench. Right-wing ideologues take the Clarence Thomas approach to jurisprudence, which is to start with whatever the result you want and then work backward to try and find some legalese to justify it. Amazingly, you will notice a strong correlation between a judge’s personal political affiliation and his or her legal interpretation of the law—even if it means bending themselves into pretzels.

Right before Roe was overturned, the political action committee arm of the conservative group Susan B. Anthony Pro-Life America expanded its state affairs team to target state Supreme Court races as a new area the organization will engage in this year. They have deep pockets, which go a long way in these down-ballot races. They are counting on Democrats ignoring these races, as we often do.

However, even in states where the governor gets to appoint justices, with or without some input from a commission, they must run for reelection or retainment to keep his or her job. This is analogous to an appointed senator having to run in a special election to keep their job. This year, 32 states are holding (or have held) elections for 87 justices. I can’t stress how critical these races are. Even though all judicial races are critical, in the interest of keeping this brief I will focus on the most critical races at the state Supreme Court level.

Ohio

Republicans have controlled the seven-member high court since 1986, but the balance is precarious. There are currently four Republican justices out of the seven seats on the Ohio Supreme Court, but this year, three Republican justices have terms expiring. One will be picked by the Republican governor, but the other two give the Democrats ample opportunity to pick up a majority on the bench. Unfortunately, the two challengers to the incumbents are currently woefully underfunded.

Republicans were worried enough about losing the majority that they passed a partisan law that requires party labels for all Supreme Court and appellate court judicial candidates. The thinking is that Ohio, which has become more red from people fleeing, will blindly pull the lever for a candidate that has an R next to their name. They may regret that decision: Democrats have won three seats in the last two Ohio Supreme Court elections.

Ohio Right to Life has endorsed judges in prior races but is going all in with funding this year:

Gonidakis said his organization plans to empty its campaign war chest as it continues to raise money this year. The group also plans to spend the summer knocking on doors, sending mailers and attempting to persuade people through social media campaigns.

It should also be noted that the Ohio GOP legislature is counting on winning these upcoming races, which is why they are constantly ignoring the high court’s 4-3 rulings ordering them to obey the state constitution and to draw fair congressional and legislative district maps. The reason is because although the state Supreme Court has a 4-3 Republican majority, one of the Republicans has sided with the Democrats—and she is retiring this year. The GOP is hoping they will have more partisan ideologues on the court next year. However, we can screw this plan up for them.

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Marilyn Zayas

New election: Democratic judge Marilyn Zayas is challenging Pat DeWine. Zayas is a judge from the Ohio First District Court of Appeals, where she beat a GOP incumbent on her first try. If she wins this race, she would be the first Latina to serve on the high court. She grew up in Spanish Harlem and Brooklyn, and vividly remembers visiting family court in New York as her mother fought for custody amid a contentious divorce. She was struck by how lawyers gave her mother a voice, and wanted to become one.

She chastised her opponent, incumbent DeWine, for dissenting on the legislative and congressional redistricting cases which the majority deemed gerrymandered and unconstitutional. The maps gave Republicans a veto-proof majority and violated every anti-gerrymandering principle approved by voters in 2015. By the way, his own father was on the redistricting committee, and DeWine didn’t recuse himself. His father is the current governor, Mike DeWine. (So, yeah.) Sadly, even though the Ohio Supreme Court struck the maps down, they were used anyway.

DeWine will also be a beneficiary of the Ohio Chamber of Commerce’s largesse, which announced it will spend up to $4 million in the Supreme Court races.

 judgemarilynzayas.com

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Terri Jamison

New election: Democratic judge Terri Jamison is challenging Pat Fischer. As a Black woman, she speaks of how Brown v. the Board of Education directly impacted her life as she went to a segregated school. She opposes the Republican concept of “textualism” stressing that when the Constitution was written, she wouldn’t have counted as a citizen.

She is a staunch defender of the concept that constitutional rights apply to everyone. Before being an appeals court judge and a lawyer, she used to work as a coal miner. Fischer, her opponent, is strongly backed by business interests who refuse to disclose donors behind their Supreme Court ads.

votejudgejamison.com

Montana

In yet another power grab, Republican officials are trying to ram through a disingenuous ballot measure that would switch the state Supreme Court from statewide elections to district elections, which would guarantee a more conservative court. They even tried telling all seven Supreme Court justices to recuse themselves in the court case fighting it, yet the justices weren’t having it. 

Montana’s judicial races are supposed to be nonpartisan, but that is simply not the case. The current balance of Democrats and GOP is set, but one race could push Montana much further to the right. To be frank, if the Republican candidate replaces the current incumbent, things will get a lot worse. Justices will soon consider a request to overturn a two-decade precedent protecting abortion access under Montana’s constitutional right to privacy. Also, recently passed state laws seeking to change how people vote will also be on the docket.

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Ingrid Gustafson

Retention: Justice Ingrid Gustafson is running for reelection. Her court appointments were made by Republican and Democratic governors, although her appointment to the high court was made by former Democratic Gov. Steve Bullock. She is an institutionalist and has decried the state GOP’s attempt to politicize the judiciary. She’s right.

James Brown is her right-wing challenger, and has no judicial experience. He is, however, very plugged in to the state GOP, so he has racked up a list of endorsements from the state’s right-wing. He was even encouraged to run for the seat by Montana’s Republican governor.

They love him because he all but said he will rule ideologically from the bench, and describes himself as a “constitutional conservative.” He falsely claims the current judiciary is “beholden to Democrats” whose only purpose is to stymie GOP legislation.  

gustafsonformontana.com

Michigan

Michigan’s Supreme Court currently has a 4-3 liberal majority. This state uses a unique system to elect judges called, appropriately enough, the Michigan System. Supreme Court justices are elected on the nonpartisan portion of the Michigan ballot, but nominated at their respective state party conventions. This year, there is one liberal and one conservative justice up for reelection. For Democrats to succeed, they need to retain Richard Bernstein, and replace the awful Brian Zahra with Kyra Bolden.

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Richard Bernstein

Retention: Justice Richard Bernstein comes from a very prominent legal family well-known in Michigan. He is a very well-respected jurist who has been blind from birth. Republicans are trying to replace him with a man named Paul Hudson, who doesn’t have any judicial experience but is quite wealthy.

The line of attack Republicans are using against Bernstein is that he took part in a cultural understanding program between Israel and the United Arab Emirates. Bernstein has advocated for disability rights in nations that don’t have a good track record for helping people with disabilities. He participated in cases using teleconferencing software while he was out of the country, and the GOP lost its collective mind.

theblindjustice.com 

New Election: The Democrats reached out to their top choice to replace a right-wing conservative on the Supreme Court named Brian Zahra. Zahra is a Federalist Society judge appointed by disgraced former Gov. Rick Snyder. Zahra has taken nearly $130,000 from insurance interests, and (not so) amazingly has ruled in their favor—such as banning medical providers from suing insurance companies, and always ruling in favor of the insurance companies over the victim no matter how outrageous the situation. He opposed putting an anti-gerrymandering proposal on the ballot, supported Trump’s bogus claims on election fraud, and supported seizing election materials for a bogus, partisan “investigation.” The Detroit Free Press was mortified that the Michigan Supreme Court came within one vote of ending democracy in the state:

Were Viviano, Zahra and Markman really ready to confiscate millions of ballots, retroactively disenfranchise absentee voters, or order the Legislature to rescind its certification of Michigan’s presidential vote—all measures demanded by the plaintiffs? Or did the GOP justices simply wish to avoid offending Trump supporters pressing fanciful conspiracy theories other courts have deemed preposterous?

Finally, Zahra received an endorsement from the anti-abortion extremist group Michigan Right to Life, which requires all of their endorsees to oppose abortion even in cases of rape and incest. The 10-year-old rape victim in Ohio would not have faired well in Zahra’s court.

Kyra Bolden
Kyra Bolden 

The person the Democrats are trying to replace him with is Kyra Harris Bolden. I can’t stress enough how impressive she is, and what a contrast she is to Zahra.

At just 33, Bolden is already currently serving her second term in the state legislature. She somehow managed to push through five bills through the conservative House advocating for justice for marginalized people. She is respected by both sides of the aisle.

She was in line to become the next minority leader until she was approached by Democratic leadership asking her to run for Michigan’s high court. She was chosen because Michiganders’ rights and lives are in danger and, this is key, she can win. Bolden is also expecting her first baby in August, yet she knows what is at stake and decided to jump into this fight. She would be the first Black woman on the court. I will be writing more about her as November approaches.

 boldenforjustice.com

Illinois

For the first time in more than half a century, Illinois voters will be electing Supreme Court justices from redrawn judicial districts, with two seats up for grabs. If the GOP wins there, the balance of power will shift to the Republicans. The problem will become what is being reflected nationally: a minority party will be able to override initiatives despite the Democratic majority in the legislative and executive branches. Obviously, the GOP is salivating and is pouring resources into the Supreme Court races, thanks to multibillionaire Ken Griffin. Griffin is the one who backed the campaign to persuade voters not to retain a Democratic justice in 2020. 

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Elizabeth Rochford

New election: For Illinois’ newly drawn 2nd district, Elizabeth Rochford is the Democratic choice. She has been a Lake County judge for 16 years, and is facing off against Republican Mark Curran, a former sheriff. Rochford is very strong in her support on abortion rights, writing on her Facebook page that she has been “endorsed by the Illinois leaders who wrote some of the strongest laws in our nation on women’s rights.”  

Curran, her opponent, is an extremist who lost the U.S. Senate race to Dick Durbin in 2020. When he ran, he said he was following a call from God to take on the “Establishment, the Party Hacks, and the Freemasons.” He clearly doesn’t want to discuss abortion in his race for some reason. He only answers that he’s “pro-life.”

Curran has no judicial experience, and was the only person running in the GOP primary who was rated “not recommended” by the Illinois Bar Association. All the other defeated GOP primary candidates were rated “highly recommended.” The choice is pretty clear on this one.

judgerochfordforsupremecourt.com

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Mary K. O’Brien

New election:  In the state’s 3rd Judicial District, Mary K. O’Brien will face off against Republican Michael J. Burke. Both faced uncontested primaries. The Democratic candidate, O’Brien, is an appellate court judge in the 3rd District and served as a member of the Illinois House of Representatives from 1996 to 2003, when she was appointed to the appellate court.

Her opponent, Michael Burke, is a devout Republican who has donated to GOP candidates; but to be fair, is not an extremist like Curran. Nonetheless, Illinois can’t take the chance of losing their rights by someone who isn’t committed to their voting rights and reproductive freedom.

OBrienforSupremecourt.com

North Carolina

North Carolina is arguably the most important race in the country this year. The two seats in play in 2022 will determine the majority on the North Carolina high court. It’s here in North Carolina where Republicans are trying to decimate voting rights—and not just in this state, but everywhere across America. The North Carolina high court ruled that Republican gerrymandering was blatantly racist and grossly favored Republicans, violating their state’s own constitution. The GOP legislature hit back with a filing that the U.S. Supreme Court agreed to hear next year.  

The GOP is arguing for a ruthless ploy called the “independent state legislature” theory. This would essentially forbid the courts from being a check on state legislatures to engage in extreme gerrymandering—regardless of whether or not it violates their own state’s constitution.  

The NC Republican legislature is infamous for its power grabs. In 2018, the GOP state legislature also created partisan elections for all of the state courts, and spent nearly $10.5 million in the most recent election in 2020. The court flipped three seats, going from a 6-1 liberal majority to a narrow 4-3 liberal majority. In fact, the money helped the Republicans win all eight statewide judicial races, including five appellate races.

The state GOP is working hard to flip the North Carolina high court in November. There’s one Democratic judge running for reelection, and another Democratic judge that is being forced into mandatory retirement. If they lose, it will mean GOP control until 2028 at least.

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Lucy Inman

New election: Judge Lucy Inman barely lost to Republican Phil Berger when she challenged him for a seat on the high court in 2020, 49% to 51%. She’s ready to try again. She has served in courtrooms across North Carolina for more than a decade, starting with the Superior Court and ending up on the Court of Appeals. 

She has a stellar record and applies the law fairly and with respect. (I really think the conservatives on the U.S. Supreme Court could learn something from her.) She is facing off with Richard Dietz, her Republican opponent this November.

His appointment to the bench on the North Carolina Court of Appeals was just a tad shady. He was appointed to the court by former Republican Gov. Pat McCrory despite a clear conflict of interest under a campaign donation scandal.  

Dietz, along with all the other Republicans running for court seats in North Carolina, have stated that their judicial philosophy is based on originalism, the belief that laws and the Constitution must be judged on their meaning at the time they were written. This does not bode well for women’s rights, health care rights, voting rights, or LGBTQ rights. 

LucyInmanforJustice.com

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Sam Ervin IV

Retention: Justice Sam Ervin is running the campaign I wish other Democratic judges would run. His website is clear:

“A fair and impartial court is essential to our Democracy. Your vote matters.”

That is a good line to close on. this isn’t about differing judicial philosophies, this is about one party trying to stack the court with ideologues who will do whatever is best for the Republican party—even at the expense of democracy and overturning the will of the people. Ervin’s opponent is the embodiment of the Republican’s contempt for the rule of law.

Ervin faces off with Trey Allen, who has neither legislative nor judicial experience. He is, however, an extreme partisan and has the full backing of the entire right-wing establishment. It’s utterly disgraceful. 

ErvinforJustice.org

Wisconsin

It’s bad at the Wisconsin Supreme Court. The seven-member high court has a 4-3 conservative majority, but it’s worse. If you think it’s bad having a Marjorie Taylor Greene as a lawmaker, try to imagine having an MTG clone on the highest court in your state.

The lead opinion on the case to ban all drop boxes was authored by partisan conspiracy-theorist on the court: Justice Rebecca Grassl Bradley. She was the only justice not elected, but rather appointed by former GOP Gov. Scott Walker. In her opinion, she not only banned drop boxes, but called Joe Biden’s 2020 victory “illegitimate.” In her legal opinion, she stated that the 2020 election was “unlawful” and compared it to rigged contests in Saddam Hussein’s Iraq. Right after the ruling, Trump demanded Wisconsin recall their electors and award him the 2020 election because of course he did.

In another recent bizarre ruling, the right-wing majority said that the Democratic governor can’t replace any agency official whose term expired over a year ago. Frank Prehn was appointed by former GOP Gov. Scott Walker. His term ended in May 2021, but has stubbornly refused to leave office and continues to make harmful decisions. The GOP-controlled Senate refuses to give preliminary hearings to the new Democratic governor’s picks. Incredibly, the right-wingers on the Supreme Court said Walker’s holdovers can keep their seats as long as they want if the GOP Senate doesn’t act.

This is one election that doesn’t take place in 2022, but 2023. But voters can replace the far-right Justice Patience Drake Roggensack in a judicial election. If the Democrat prevails, the court will flip to a 4–3 liberal majority.

Three years ago, the conservative Brian Hagedorn won his race by only 6,000 votes out of 1.2 million cast. Had a few thousand more Democrats turned out, these recent awful rulings would never have happened.

Dane County Judge Susan Crawford is a possible Democratic candidate, as is Racine County Circuit Court Judge Kristin Cafferty. However, the only declared candidate so far is Dane County judge Everett Mitchell. He announced his candidacy in June 2022. He would be seeking to become only the second Black justice in Wisconsin history and the first to be elected to the court.

www.judgeeverettmitchell.com

Kansas

One final quick word about Kansas. Abortion is legal there thanks to all but one of the justices supporting a 2019 court decision recognizing the right of women and pregnant people to control their own bodily autonomy.

Caleb Stegall wrote an 84-page dissent that the state should have a say in reproduction. He was appointed by Republican extremist Sam Brownback. Please support retention for all the justices on the Kansas ballot except for him.  

Again, I can’t stress enough how critical these down-ballot races are. Ralph Reed, the former leader of a right-wing Christian political organization, once said he’d rather lose the presidency if he could have all the school boards. Steve Bannon has been successfully pushing QAnon people to run at the precinct level to take over elections to bring about the end of our democracy. Over 100 GOP primary winners, from election judges to secretaries of state, are election deniers that have either implied or outright said they will not certify elections where the GOP candidate loses.

The biggest battles, however, will end up in the court system, which has been the last resort to protect democracy. The Republicans have been focused like a laser on putting the most ideologue, hardcore partisans into these roles that will rule the way the Republican Party wants them to—no matter how wrong or hypocritical it is. These races are critical to preserving our rights and our democracy. Please put as much effort into these as you would the national races—at least for this election.

 



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