A Bright Spot for Republicans in State Supreme Court Races

W e’ve been dwelling a good deal on the failures of Republican campaigns in 2022, but there are some bright spots as well. One of those can be found in the races for elected state supreme courts. Republicans made major gains of vast significance on the North Carolina and Ohio supreme courts.

Both states were chief targets for both parties, and the stakes were high. The Republican State Leadership Committee, which picked its battles this year in secretary of state races, made these two courts a priority. In Ohio, Republicans were playing defense — or so it seemed. Maureen O’Connor, the Republican chief justice of a court divided 4–3 between Republicans and Democrats, was retiring due to age limits. Two other Republican justices were up for reelection, Pat Fischer and Pat DeWine — the latter having the advantage of running alongside his father’s landslide reelection as governor.

The reason why this was not just a defensive fight is that O’Connor sided with the Democrats in repeatedly striking down redistricting maps drawn by the Ohio Redistricting Commission. Republicans could improve their position by electing a successor less likely to do so. That was a live issue because the redistricting litigation spawned a fight between the Ohio courts and the political branches, with the 2022 elections being contested on the basis of a map the court had rejected. Now, the votes are likely no longer there to throw that map out.

Both parties ran a sitting associate justice for the chief justiceship, ensuring that they already knew where they stood on redistricting and other recent cases before the court. The Republican, Sharon Kennedy, was a former police officer and victim’s advocate, while the Democrats ran Jennifer Brunner, the former Ohio secretary of state. Each got 55 percent of the vote in their reelections in 2020, so at first glance, they might have seemed an even match, especially given Brunner’s prior record in statewide elected office.

The Ohio race was fought on lines familiar in 2022: Republicans ran on crime, and Democrats ran on abortion. The Republican slate was helped not only by DeWine at the top of the ticket and the state’s increasingly red lean, but also by a ballot measure to undo a progressive bail reform that barred courts from considering public safety in deciding bail–– a radical position wildly out of step with the public.

This was the same issue that animated Lee Zeldin’s campaign in New York and turned Long Island red, but at least in New York, bail reform was passed by the legislature. In Ohio, the state’s supreme court ruled 4–3 in DuBose v. McGuffey (2021) — again with O’Connor joining Brunner and the other Democrats in the majority — that “the sole purpose of bail is to ensure an accused person’s attendance in court, saying public safety is not a consideration with respect to the financial conditions of bail.” The court thus supported cutting $1.5 million bail by two-thirds in a murder case. Ballot Measure 1, explicitly written to overrule DuBose, would “require Ohio courts, when setting the amount of bail, to consider public safety, including the seriousness of the offense, as well as a person’s criminal record, the likelihood a person will return to court, and any other factor the Ohio General Assembly may prescribe.” It passed with a whopping 78 percent of the vote.

Try as they might, with big spending by a Planned Parenthood-related group, Democrats couldn’t make Ohio’s restrictive abortion law (signed by DeWine, and no obstacle to his reelection) anywhere near as unpopular as DuBose. The Democratic judges and candidates were hurt by being on the record on bail reform, while the Republicans were helped by the fact that Ohio had an abortion law passed by the legislature rather than a set of hypothetical questions about the issue. Dealing in concrete policy helped Republicans.

All three Republican candidates won with between 56.3 and 57.2 percent of the vote. While they ran behind DeWine, who got 62.4 percent, they ran about even with Republican House candidates and ahead of J.D. Vance, who got 53.3 percent in his bid for the Senate.

The new, more solidly Republican majority has real consequences. Not only can the majority beat back efforts to judicially undermine the state’s abortion law on state-law grounds, it is also bound to hear further challenges to its congressional map. In the 2022 election, Ohio elected ten Republicans and five Democrats, giving Republicans 66.7 percent of the seats with 56.7 percent of the vote — even though Democrats won the only two seats decided by fewer than ten points. A map in which Republicans hold ten safe seats out of 15 is a big help in a closely divided House.

*  *  *

In North Carolina, Republicans were on offense. In a state with a Republican legislature and a Democratic governor, the court holds the balance of power. In 2020, Republicans won three seats on the court — two of which were previously in Democrat hands — shifting the court from 6–1 to 4–3 Democrat. The most narrowly defeated of the Democrats was Cheri Beasley, who instead ran for the Senate in 2022 and lost; another was Lucy Inman. Two more of the Democratic seats were up in 2022. The Democrat incumbents were Lucy Inman and Sam Ervin IV, the latter of whose very name bespoke an old-family Democratic political dynasty whom time had passed by. Republicans opposed Inman with Richard Dietz, a judge of the intermediate North Carolina Court of Appeals, but selected Trey Allen, a former Marine without judicial experience, to oppose Ervin.

Seeing a narrow window to exercise that power to the maximum, the Democratic majority ran wild, arrogating to itself on the slimmest of textual pretexts all manner of powers, including the power to just declare the Republican state legislature itself invalid:

Over the last year, Democrats on the North Carolina Supreme Court ruled that juvenile offenders sentenced to life imprisonment must be eligible for parole after 40 years, held that state legislators can be compelled to increase education spending, seized control of a case on felon disenfranchisement before a Republican-dominated appeals court could rule on it, found in striking down the state’s new congressional and legislative maps that the state constitution effectively mandates proportional representation, and, in its most brazen decision, declared the state legislature may lack the power to amend the state constitution on the grounds that its districts were illegal racial gerrymanders.

Crime was again a major issue, helped by Ted Budd battering Beasley for being soft on sex offenders in her time on the court. Dietz and Allen got 52.6 and 52.4 percent of the vote, respectively, running about even with Republican House candidates and two points ahead of Budd, who got 50.5 percent of the vote.

Redistricting fights aren’t done in North Carolina, either, but Republicans could do better than what they have at the moment. In 2022, North Carolina elected seven Republicans and seven Democrats, giving Democrats half of the seats with 47.3 percent of the vote. As in Ohio, Democrats won the close ones, claiming all three seats that were decided by less than nine points.

State supreme-court elections were not all good news. Democrats flipped a Republican-held seat in Illinois, where Republicans needed to sweep both races in order to gain a majority. Republicans also missed opportunities to swing the majority in Michigan and gain a seat in Montana, and in both cases, Democrats were more effective in focusing on abortion. But the victories in Ohio and North Carolina are a model for how it is done. Republicans have gotten very good over the years at talking to voters about the courts and tapping into deep voter mistrust of liberal and progressive adventurism on the courts.

Republicans now hold a majority on 27 state supreme courts to the Democrats’ 16, with the rest being divided courts or more complicated cases. But the judicial wars are not over. Democrats are itching to reclaim the majority in Wisconsin, where one Republican justice faces the voters in April. The notoriously activist Democrat-held Pennsylvania supreme court, by contrast, would take five more years to flip even if Republicans play their cards very well. Control of the courts rewards the party that can play the long game.

Editor’s note: This article originally misstated the name of Cheri Beasley.