How Years of Legislative Maneuvering Shaped this Year’s Judicial Elections 

State lawmakers frequently change judicial election rules with the goal of putting partisan or ideological allies on the bench. With nearly a quarter of the country’s 344 state supreme court justices on the ballot this year, those changes could have big implications in November’s election.

The changes include making nonpartisan elections partisan, altering the composition of judicial nominating commissions, redrawing judicial districts, or creating new courts with jurisdiction over specific cases.

The clearest examples are in North Carolina and Ohio, where legislators recently changed the rules to ensure judicial candidates had party labels next to their names. In 2016, North Carolina Republicans passed a law requiring state supreme court justices to run in partisan elections. At the time of the law’s passage, North Carolina used nonpartisan elections to select its justices, and liberals had just taken a majority on the state’s high court, winning several races with large margins. Since the bill’s passage, state supreme court election results have hewed closely to the state’s overall partisan lean, with Republicans narrowly winning all but one race over three cycles and obtaining a 5–2 majority.

This year, Justice Allison Riggs, appointed to the court last year by Gov. Roy Cooper (D) to fill an interim vacancy, is running as a Democrat in a partisan race against state appellate judge Jefferson Griffin, a Republican. Should she lose, Republicans will expand their majority, which has acted swiftly to reverse recent precedent on voting rights, public education, and other significant issues.

In 2021, Ohio Republicans took a page out of North Carolina’s playbook, passing a bill requiring that state supreme court candidates’ party affiliation appear next to their names on the ballot. Previously, Ohio judicial candidates stood in party primaries, but appeared on the general election ballot without party labels, and liberals had won several high-stakes races. In 2022, the first election after the law change, Republicans won all three seats up on the court by nearly identical 12-point margins.

This year, three seats on the Ohio Supreme Court are up for election and Republicans could grow their majority from 4–3 to 6–1 if their candidates win all three races, with major implications for redistricting and abortion access in the state. Sitting justice Jennifer Brunner, a Democrat next up for election in 2026, filed a federal lawsuit challenging the partisan label law, arguing that it conflicted with her obligations under Ohio’s Code of Judicial Conduct and violated her federal free speech rights. That case has not progressed and all candidates will appear with party affiliations in this year’s races.  

Even in some states that appoint their judges in the first instance, what voters will see on their ballot is the result of legislative maneuvering. For example, 26 states use a judicial nominating commission to regularly fill seats on their supreme courts. Under such systems, a commission composed of individuals appointed by the legislature, governor, judiciary, state bar, or some combination, review applications for open judgeships and recommend applicants for appointment, usually by the governor. Following their appointment, such judges typically run in unopposed retention elections. When structured well, no individual official can appoint a majority of appointees, requiring that commissioners recommend applicants capable of garnering broad consensus across legal stakeholders.

In many states, merit selection is codified in the state’s constitution, making such systems difficult for legislators to abolish. But legislators seeking to assert more control over merit selection have done so by statutorily altering the makeup of the commissions to render them more partisan. These changes have effectively ensured that political allies control both the vetting of candidates and the final decision on who will be appointed.

Iowa, for example, codified merit selection in its state constitution in 1962. In 2019, following a ruling by the Iowa Supreme Court declaring abortion a fundamental right under the state constitution, the legislature passed a bill removing the chief justice from the state’s judicial nominating commission and giving the governor a majority of commission appointments. Since then, the governor has appointed several new justices under the newly composed nominating commission and the court has moved sharply to the right. These changes have had an immediate impact: in 2022, the court reversed its ruling that abortion was a fundamental right and this summer it upheld the state’s “fetal heartbeat” law. This year, one of the justices appointed to the court under the new system — and who joined the majority in this year’s abortion decision — will face voters in a retention election for the first time.

Utah is another state where a carefully designed appointment process has been kneecapped by anti-abortion politics, with implications in November. For decades, Utah selected its judges using a merit selection system with partisan fairness requirements that prevented any political party from controlling a majority on the state’s judicial nominating commissions. Generally, such requirements ensure that justices are capable of garnering broad, bipartisan support prior to their appointment.

Following a Utah judge’s 2022 decision enjoining the state’s abortion ban, the legislature passed a bill eliminating the partisan balance requirements as well as the state bar’s role on the commissions, giving the governor unilateral control over both the vetting and appointment of candidates to both appellate and lower courts. This year, the state’s chief justice, selected pursuant to the merit selection system that preceded the 2023 change, will face voters in a retention election. If voters reject him, the governor will be largely unconstrained by the commission in selecting a replacement, making it likely that the new justice is a partisan ally of the governor and the legislature.

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As state courts continue to take center stage in many of our nation’s most significant legal disputes, judicial elections are more important than ever. When voters enter the ballot box, they should be aware of the ways some state legislatures have quietly tipped the scales in their own favor.

Michael Milov-Cordoba is a counsel in the Judiciary Program at the Brennan Center for Justice.

Suggested Citation: Michael Milov-Cordoba, How Years of Legislative Maneuvering Shaped this Year’s Judicial Elections, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Oct. 11, 2024), https://statecourtreport.org/our-work/analysis-opinion/how-years-legislative-maneuvering-shaped-years-judicial-elections