Washington — The stakes surrounding state Supreme Court races across the country are the highest in recent memory this election cycle, as activists on both sides of the abortion rights debate focus on systems state judiciaries who may now have the final say on the matter following the U.S. Supreme Court ruling.
There are Supreme Court elections in 30 states this year and 85 total seats on the ballot, according to Ballot, although most contests are for seats held by nonpartisan judges. But in at least three states – North Carolina, Ohio and Illinois – party control of the High Court is on the line in November.
While state court races have generally attracted the attention of state business interests in years past, recent U.S. Supreme Court rulings on redistricting and the end of the Constitutional right to Abortion have elevated the contests, with big money expected to flow into the races this cycle.
“Generally, at this time, the Supreme Court of the United States is making it clear that it is moving away from its role of protecting individual rights and ensuring that other mechanisms of our democracy work,” said Douglas Keith, democracy program attorney at the Brennan Center for Justice. “With this clarified by the Supreme Court of the United States, it becomes clear to many people that the state supreme courts are going to be as important as they have ever been because they will be the ones deciding these key issues. . “
The 2019 U.S. Supreme Court ruling that federal courts have no role in deciding claims of partisan gerrymandering left state courts as the only venues for legal challenges to voting limits aimed at to entrench the ruling party and shifted the focus to state court races. A report of the Brennan Center found that the 2019-20 election cycle was a record high for spending in state court contests, with nearly $100 million spent across the country.
But the Supreme Court’s decision in June overturning Roe v. Wade has further fueled interest in state court races, as abortion-rights supporters are already filing lawsuits in state courts to challenge the newly put restrictions. implemented under state constitutions.
Due to the fervor surrounding abortion rights, Keith predicted that these contests would usher in the costliest midterm cycle yet for state judiciary elections.
“It used to be that if there was a law restricting access to abortion or a partisan gerrymander put in place by the legislature, people who wanted to challenge those acts had two bites in the apple: they could go to a court of state and make claims under state law or go to federal court and sue under the US Constitution,” Keith said. “Since the Supreme Court of the United States is closing the doors of federal courts to so many of these issues, the state courts become more powerful, since they have the sole say on some of these issues.”
But the state courts, he continued, “are not asserting themselves. It’s the federal courts that close their doors to these issues.”
In Montana, the state’s constitutional right to abortion was recognized by its high court in a 1999 decision, in which the court found that the abortion restrictions in question violated a woman’s right to privacy under the Montana Constitution. But Republicans are hoping a change in the makeup of the state Supreme Court will lead to the 23-year-old ruling being overturned. Two state GOP-backed candidates, Judge Jim Rice and attorney James Brown, are on the ballot in November.
In Ohio, voters will vote for three state Supreme Court seats in November, all of which are currently held by Republicans. GOP justices on the Ohio Supreme Court currently control four seats to three for Democrats, and this year’s contest marks the first in which party affiliation will be included alongside candidates’ names on the ballot. to vote in November.
Kellie Copeland, executive director of Pro-Choice Ohio, said the state’s high court elections, as well as her gubernatorial run, are a “top priority” for the organization, not least because the one of the seats to be filled belongs to Chief Justice Maureen O’ Connor, who is considered a swing vote and is retiring due to an age limit.
“Court oversight is up for grabs, so pro-choice organizations and anti-choice organizations are focusing on the state Supreme Court, because there are challenges that will work their way through the courts of state and will end up in the Supreme Court,” she told CBS News. “We believe this is the first and fastest way to restore access to abortion in Ohio.”
At least a legal challenge to an Ohio law banning abortion after embryonic heart activity is detected, about six weeks pregnant, argues the measure violates the Ohio Constitution, which abortion providers who have sued prosecution, protects the fundamental right to abortion.
“Winning this court with candidates who are going to follow the State Constitution, recognizing the human rights guaranteed therein, is essential,” she said.
Copeland also noted that the state High Court could play an important role if abortion-rights proponents pursue a ballot measure to amend the Ohio Constitution to protect abortion rights, a effort that often leads to disputes over the language of an initiative.
If the majority of the state Supreme Court opposes abortion rights, “it will make it very difficult for us not only to restore access to abortion, but also to guarantee it in the future”, she said.
Meanwhile, in Michigan, judges affiliated with the Democratic Party hold a slim 4-3 majority on the state’s highest court, and Democrats are hoping to retain control. The future of abortion access in the state has already landed at this court’s doorstep, as Governor Gretchen Whitmer directly asked the Michigan Supreme Court to strike down a 91-year-old law banning abortion. abortion that predated the Supreme Court’s decision in Roe v. Wade and recognize the right to abortion under the Michigan Constitution.
Pre-Roe law enforcement wasby a lower court in a separate challenge to Michigan abortion providers, though it is working its way through the state’s court system.
“If voters care about abortion access, the Supreme Court races in Ohio and Michigan in November are among the most important races they need to think about,” said Jake Faleschini, chief legal officer. from state courts to the Alliance for Justice Action Fund, a liberal court-focused group.
In Illinois, meanwhile, there are two competitive court races this year after the state redrew its district boundaries for the seven-member Supreme Court. While Democrats have held a four-seat majority for nearly two decades, the state Supreme Court could swing with the new map in place this year, Faleschini said.
The Illinois Supreme Court has recognized the right to abortion under the state constitution, but a change in its composition could lead to a legal battle that abortion rights advocates fear will jeopardize the ‘access. Such a move, Faleschini said, would not only have ramifications for patients in Illinois, but also for those in neighboring states who turn to Illinois for abortion services because of the limitations of where they live. .
“Illinois has an outsized role in the Midwest to continue to keep abortion access somewhat accessible for the Midwest,” he said.
North Carolina’s court contests, meanwhile, are among the most watched this year, with Republicans having a chance to topple the current field 4-3. GOP state lawmakers have run into trouble with the state High Court over redistricting, with a challenge involving congressional lines drawn by the court sparking a dispute over the blockbuster election law that should bein his upcoming term.
A Republican-controlled state Supreme Court could also be a foil for Gov. Roy Cooper, a Democrat, who signed an executive order in July to protect access to abortion services.
As abortion rights supporters argue access is on the ballot in November, activists are making new investments to elect abortion rights candidates from the top down. Family planning Wednesdayit plans to spend a landmark investment of $50 million in nine states where access is on the ballot: Georgia, Nevada, Minnesota, Pennsylvania, Arizona, North Carolina, New Hampshire, Michigan and Wisconsin.
Sarah Standiford, spokeswoman for Planned Parenthood Votes, said in a statement to CBS News that the efforts of the reproductive health care provider’s political and advocacy organizations extend to Congress, state legislatures, courts and state legislatures. ballot boxes.
“State supreme courts are a vital safety net — in some places, an opportunity to defend our constitutional rights,” she said. “Where possible, Planned Parenthood political and advocacy organizations will engage with voters in national and local races critical to defending our rights – prioritizing Supreme Court races in many places. , including Ohio, Michigan and North Carolina.”
The Democratic Legislative Campaign Committee also said it was investing in state Supreme Court races for the first time this election cycle.
“State legislatures remain our priority, but state supreme courts wield enormous power over state laws, redistricting maps and election implementation,” Gabrielle Chew, a spokesperson for the group, said in a statement. an email to CBS News. “Like state legislatures, Democrats have historically neglected state supreme courts to their detriment. Here at DLCC, we seek to change that.”