Key 2022 State Supreme Court Election Results and What They Mean

Twenty-five states held elections this week for their state supreme courts, which typically have the final word in interpreting state law. In the aftermath of Dobbs and other recent U.S. Supreme Court decisions that have narrowed or eliminated federal rights, state courts are increasingly being called upon to fill the void.

This attention has reshaped judicial elections, which 38 states use as part of their system for choosing judges. Especially in states where the ideological or partisan majority on a court was up for grabs this year, new interest groups got involved, familiar groups broke spending records, and groups and candidates used new messages that emphasized the growing importance of state high courts.

In the vast majority of states, this year’s judicial elections maintained the status quo, with justices getting elected or reelected with little opposition. But changes on courts in Ohio and North Carolina could alter the legal landscape in significant ways, while other supreme court majorities survived despite significant opposition.

These are the results of some of this year’s most competitive judicial elections and their potential impact.

Illinois

Democrats won at least one of the two partisan elections for the Illinois Supreme Court. Judge Elizabeth Rochford (D) defeated former Sheriff Mark Curran (R), while Judge Mary K. O’Brien (D) held a narrow lead over Justice Michael Burke (R) as of the time of publication with 92 percent of precincts reporting. Justice Mary Jane Theis (D) also won her retention election.

As a result, Democrats will either maintain their 4–3 majority or grow to a 5–2 majority on the court — a majority they have held since the 1970s. In 2020, Illinois Republicans created an opportunity to vie for a majority on the state high court in 2022 by successfully waging the most expensive anti-retention election ever to unseat Justice Thomas Kilbride (D). A lower court judge, Robert Carter (D), was appointed by the state supreme court on an interim basis, with Kilbride’s seat opening for a competitive election in 2022. Following Kilbride’s defeat, the legislature redrew the state’s judicial districts, and both of this year’s elections were viewed as competitive.

Recent Illinois Supreme Court decisions that have broken down along partisan lines include rulings about pension reform, redistricting, and workers’ compensation.

The campaign

In their campaigns, Democratic candidates and groups on the political left emphasized the role that the Illinois Supreme Court may play in determining abortion rights in the state in the wake of Dobbs. In September, the Illinois Republican Party accused O’Brien of misrepresenting Burke’s views in an ad that said he “agreed with the decision to overturn Roe.” In 2013, the Illinois Supreme Court ruled that the state constitution protected abortion rights to the same extent as the federal constitution, an approach that puts those protections in question after Dobbs. Republican candidates and conservative groups, for their part, tried to tie Democratic candidates to Mike Madigan, the former Illinois speaker of the house, who was indicted for bribery and racketeering this year.

These elections were likely the most expensive judicial elections in the country this year, with Republican candidates receiving millions in independent spending by Illinois billionaires Ken Griffin and Richard Uihlein and Democratic candidates receiving millions in independent support from labor unions and progressive groups as well as large donations from Gov. J.B. Pritzker.

Kansas

Six of the seven justices on the Kansas Supreme Court stood for retention elections, and voters retained all six justices, giving them each an additional six-year term. Kansas’s retention elections are nonpartisan, and justices are initially appointed via a merit selection process where a judicial nominating commission vets candidates and presents a shortlist to the governor. Five of the court’s seven justices were appointed by Democratic governors through this process.

In 2019, the Kansas Supreme Court ruled that the state constitution protects abortion rights. Two of the justices retained this week were in the majority in that decision, and one was in dissent. (The three remaining justices were appointed after the court’s ruling.) The election followed an August vote in which voters rejected a constitutional amendment that would have effectively overturned that 2019 decision and allowed the state legislature to restrict abortion rights in the state. The election also leaves in place the court majority that this year narrowly ruled that the state constitution does not prohibit partisan gerrymandering.

The campaign

The court’s 2019 abortion decision led to backlash against a court that some Kansas Republicans have accused of having “activist judges,” whom legislators have tried to rein in through changes to the state’s judicial selection process. Kansas campaign finance law, which requires little reporting of spending on judicial elections, makes it impossible to know just how much money was spent. However, while Kansans for Life, a leader in this summer’s anti-abortion amendment campaign, distributed mailers telling voters to vote against five of the six justices, there was no large-scale TV ad campaign or other markings of a comprehensive anti-retention effort like Kansas has seen in prior cycles.

An independent group called Keep Kansas Courts Impartial campaigned for the retention of all six justices, running TV ads portraying the high court as a nonpartisan, impartial exception to other branches of government targeted by special interests and political influences.

Kentucky

Kentucky voters elected state supreme court justices from four of the state’s seven districts in nonpartisan elections. While retiring Chief Justice John Minton has been praised for his ability to maintain the court’s nonpartisan nature, national conservative groups targeted two seats this year in an effort to put vocal conservatives on the court. That effort failed as Justice Michelle Keller and Judge Kelly Thompson defeated State Rep. Joe Fischer and attorney Shawn Alcott, respectively. Judge Angela Bisig also won her election, and Justice Christopher Nickell ran unopposed.

Voters rejected a ballot initiative this week that would have added an amendment to the state constitution explicitly stating that it does not protect abortion rights, meaning that the state’s courts will decide whether abortion restrictions violate the state constitution. Two abortion bans — a near-total abortion ban and a six-week ban — enacted by the state this year are currently being challenged before the Kentucky Supreme Court. The current court, including Minton, may decide the casebefore the new justices take their seats in January. The new court will also likely hear a major redistricting case next year.

The campaign

The most contentious race occurred in the state’s sixth judicial district, where Fischer, a vocal anti-abortion state legislator, lost to Keller. Fischer was supported by national conservative interest groups, including the Republican State Leadership Committee’s Judicial Fairness Initiative. The Kentucky Judicial Conduct Commission, the state’s judicial disciplinary body, investigated Fischer for potentially violating the state’s code of judicial ethics by openly campaigning as “the conservative Republican” and touting endorsements from conservative groups like Kentucky Right to Life despite running in an officially nonpartisan election. Fischer sued the commission in federal court and won an order blocking the investigation.

Montana

Incumbent Montana Supreme Court Justices James Rice and Ingrid Gustafson defeated challengers in a nonpartisan election to keep their seats on the court. Gustafson faced a strong challenge from James Brown, chair of the Public Service Commission and former Montana Republican Party counsel.

This year’s elections could not have changed the ideological majority on the court, but Montana Republicans spoke aboutdefeating Gustafson as part of a long-term strategy to win a majority on the court. In September, she joined a slim majority to temporarily block a newly passed restrictive voting law, while Rice dissented. In August, the court unanimously upheld a lower court decision temporarily blocking new abortion restrictions. Both of those cases are likely to come before the court again.

The campaign

The race between Gustafson and Brown was the most expensive judicial election in the state’s history, with more than $1.5 million spent independently by interest groups. Conservative groups invested heavily to support Brown, who identified as a “constitutional conservative” and said that Republican Gov. Greg Gianforte asked him to run for the seat. Ads by both Brown and supportive groups attacked Gustafson as unethical and anti-business and sought to tie her to President Biden. Progressive groups spent less than their counterparts, but some attacked Brown for raising utility rates on the Public Service Commission, and others emphasized the importance of the race for abortion access in Montana.

Michigan

Justice Richard Bernstein, nominated by the Democratic Party, and Justice Brian Zahra, nominated by the Republican Party, both won reelection to the Michigan Supreme Court. They defeated Democratic State Rep. Kyra Harris Bolden and Republican-nominated attorney Paul Hudson. Elections to the Michigan Supreme Court are nonpartisan, but candidates are nominated by political parties. As a result, the court will continue to have a 4–3 Democratic majority.

The Michigan Supreme Court has issued several significant democracy-related rulings recently, many of which have not broken down along party lines. Earlier this year, for example, the court dismissed two challenges from voters and Democratic lawmakers to legislative maps drawn by the state’s independent redistricting commission. In each of those decisions, one 5–2 and the other 4–3, Democratic and Republican justices joined together to form the majorities and dissents. In September, the court voted 5–2, with one Republican joining the majority, to allow on the ballot an amendment that would enshrine abortion rights in the Michigan Constitution (voters approved that amendment). Additional challenges to statutes restricting abortion are making their way through lower courts and may be heard by the Michigan Supreme Court this year.

Notably, Harris Bolden would have been the first Black woman to serve on the Michigan Supreme Court, which has had no justices of color since 2018.

The campaign

Abortion did not feature as prominently in the campaign for the Michigan Supreme Court as it did in some other states where court majorities were also at stake. In their TV ads, Democratic candidates and groups supporting those candidates highlighted the diverse perspectives that Kyra Harris Bolden would have brought to the bench as the first Black woman to serve on the Michigan Supreme Court and that Justice Richard Bernstein has brought to the court as the state’s first blind justice. One progressive interest group ad accused Justice Brian Zahra of “standing with extremists” against abortion rights, referencing his dissenting vote in the high court’s decision to allow the abortion amendment on the ballot.

As in Michigan’s 2020 supreme court election, groups supporting the Democratic candidates appear to have spent significantly more than conservative groups spent supporting Zahra and Hudson.

North Carolina

In North Carolina, Trey Allen (R) and Judge Richard Dietz (R) defeated Judge Lucy Inman (D) and Justice Sam Ervin (D) for two seats on the North Carolina Supreme Court. As a result, the partisan majority on the court will flip from 4–3 Democratic to 5–2 Republican. North Carolina judicial candidates used to run in nonpartisan campaigns, but in 2017, the state legislature passed a new law requiring candidates to run in partisan primaries and have party affiliations on the ballot. Since then, Republican candidates have won five of six races, defeating three incumbent justices.

This North Carolina Supreme Court election was one of the most anticipated this year after a series of 4–3 decisions that struck down congressional and legislative maps as partisan gerrymanders violating the state constitution, extendedconstitutional protections for defendants in criminal cases, and ruled that when a legislature’s composition is the result of an illegal gerrymander, courts can invalidate any laws passed by that legislature that undermine democratic accountability. In another 4–3 decision issued just last week, the court ordered the state to transfer funds to its public education system because the state legislature’s inadequate funding of public schools violates the state constitution.

Before the majority changes hands, the high court will likely issue a decision in an already argued challenge to a new voter ID requirement, and the new majority is likely to hear challenges to the state’s abortion restrictions and prohibitions on voting by people with felony convictions.

The campaign

Candidates and interest groups on both sides spent millions in North Carolina’s supreme court elections, making them some of the most expensive judicial races this year. Interest groups’ ads supporting the Democratic candidates focused on abortion rights, asserting that if Republicans were to hold the majority on the state supreme court, abortions could be criminalized. Conservative groups portrayed Inman and Ervin as “soft on crime,” pointing to decisions from their time on the bench that benefited defendants in criminal cases.

Ohio

Three seats on the Ohio Supreme Court were up in competitive partisan elections, including a race for chief justice, and Republican candidates won all three. Justice Pat DeWine and Justice Pat Fischer won reelection, while Justice Sharon Kennedy defeated Justice Jennifer Brunner (D) in the race for chief justice. Ohio Gov. Mike DeWine (R) will appoint someone to fill the vacancy created by Kennedy’s elevation to chief justice. Party labels appeared next to supreme court candidates’ names on the ballot for the first time after the state legislature changed the law last year.

These results maintain the partisan balance on the high court but may result in a significant shift in outcomes. Currently, the court has a 4–3 Republican majority, but the retiring Republican chief justice had formed a majority with the three Democratic justices in high-profile decisions, including one that rejected legislative and congressional maps for violating new state constitutional provisions prohibiting partisan gerrymandering and another that limited the use of bail. (The Brennan Center is representing the plaintiffs in one of the lawsuits challenging Ohio’s legislative maps.) Justice Kennedy, the incoming chief justice, dissented from those decisions. In addition to redistricting, next year, the court will also likely hear challenges to the state’s six-week abortion ban.

The campaign

With the partisan majority on the court at stake, conservative and progressive interest groups spent significant sums in the race. Groups supporting the Democratic candidates emphasized the likelihood that the Ohio Supreme Court will issue a major decision about abortion rights. Pro-choice groups also accused the three Republican candidates of violating the state’s judicial ethics code by asserting that the Ohio Constitution does not provide a right to abortion in a judicial candidate survey conducted by Cincinnati Right to Life.

Meanwhile, Republican candidates and organizations criticized the Democratic candidates for being “soft on crime,” calling out the court’s bail decision in particular. The Ohio State Bar Association called for one such ad to be taken down, saying it “serve[d] to erode public trust and confidence in the judiciary.” The ad in question was funded by the Republican State Leadership Committee, a national group that pledged to spend at least $2 million on the Ohio Supreme Court race.

Amanda Powers is a research and program associate in the Brennan Center’s Democracy Program.

Douglas Keith is a counsel at the Brennan Center for Justice.

Suggested Citation: Amanda Powers & Douglas Keith, Key 2022 State Supreme Court Election Results and What They Mean, Sᴛᴀᴛᴇ Cᴏᴜʀᴛ Rᴇᴘᴏʀᴛ (Nov. 19, 2022), https://statecourtreport.org/our-work/analysis-opinion/key-2022-state-supreme-court-election-results-and-what-they-mean.