Author

Luke Seeley

Luke Seeley is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Breaking down partisanship on the New Jersey Supreme Court

A recent Ballotpedia study on state supreme courts revealed that of the seven justices on the New Jersey Supreme Court as of June 2020:

  1. Two justices had some level of affiliation with the Democratic party
  2. Four justices had a Republican affiliation
  3. One justice had an indeterminate partisan affiliation.

In “Ballotpedia Courts: State Partisanship”, we gathered a variety of data on 341 active state supreme court justices across the 50 states in order to understand their partisan affiliations. Based on this research, we placed each justice into one of five categories indicating our confidence in their affiliations with either the Democratic or Republican Parties. These categories are:

  1. Strong Democratic
  2. Mild Democratic
  3. Indeterminate
  4. Mild Republican
  5. Strong Republican

Our confidence measure shows that in 2020, there were two Mild Democrats on the New Jersey Supreme Court (Justices Stuart Rabner and Barry Albin), four Mild Republicans (Justices Lee Solomon, Anne Patterson, Jaynee LaVecchia, and Faustino Fernandez-Vina), and one Indeterminate justice (Justice Timpone). Justice Timpone retired on August 31, 2020, 10 weeks before his mandatory retirement date of November 10, to allow his replacement, Justice Fabiana Pierre-Louis, to join the bench for the September court session. As our study concluded in June 2020, we did not include Justice Pierre-Louis in our research.

New Jersey has informal, but no constitutional rules which mandate a partisan balance on the state supreme court. The National Center for State Courts describes New Jersey’s informal process of ensuring partisan balance on its state supreme court as follows:

“New Jersey’s courts also have a tradition of political balance. Governors, regardless of their party affiliation, have generally followed a policy of replacing outgoing judges with someone of the same party or philosophy. On the supreme court, the traditional balance is three Democrats and three Republicans, with the chief justice belonging to the party of the appointing governor.”

The state of New Jersey has two rules governing judicial appointments: one written, one unwritten. The written law requires that justices are subject to reappointment by the governor and reconfirmation by the legislature after an initial seven-year term. The unwritten rule is that the governor of the state of New Jersey is to appoint justices in a way that alternates the party of the justice each time he receives the opportunity to appoint a new justice to the court to ensure partisan balance on the court.

While John Corzine (D) was governor of New Jersey, he appointed two justices to the court, Helen Hoens and Stuart Rabner. One of his nominees, Stuart Rabner, was Gov. Corzine’s chief legal counsel and the attorney general for the state of New Jersey. Gov. Corzine also reappointed two Republican-leaning justices nominated to the bench by Governor Christine Todd Whitman (R) and one Democratic-leaning justice appointed to the bench by Governor James McGreevey (D).

Governor Chris Christie (R) broke the precedent in attempting to appoint another Republican-leaning justice to the state supreme court without first reappointing Justice Rabner. Gov. Christie also did not reappoint Helen Hoens, who was first appointed by Governor Christine Todd Whitman, and stated that he did so because he knew the Senate would reject her nomination. Justice Hoens is only the second justice in the history of New Jersey to sit on the court and not receive renomination after her second term. The only previous justice not to receive renomination was Justice John E. Wallace, a Gov. James McGreevey (D) appointment who Gov. Christie also did not renominate.

Gov. Christie’s Republican appointments recorded lower partisan Confidence Scores than the justices appointed by Whitman and Corzine. This means that, according to our data, Christie’s appointments were less partisan in their affiliations than the other New Jersey governors with appointments to the court. Christie’s appointments record an average Pure Partisan Score of 4.5. Whitman’s justices register an average Pure Partisan Score of 7. Corzine’s justices register an average Pure Partisan Score of 9. McGreevey’s justices record an average Pure Partisan Score of 7.

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Breaking down partisanship on the Delaware Supreme Court

Delaware is the only state in the country with a constitutional requirement mandating partisan balance on the state supreme court. In 1851, Delaware amended its constitution to include: “three of the five Justices of the Supreme Court in office at the same time, shall be of one major political party, and two of said Justices shall be of the other major political party.”

Ballotpedia’s recently published study on state supreme courts revealed that of the five justices on the Delaware Supreme Court, four justices had some level of affiliation with the Democratic party and one justice had an indeterminate partisan affiliation.

In “Ballotpedia Courts: State Partisanship”, we gathered a variety of data on 341 active state supreme court justices across the 50 states in order to understand their partisan affiliations. Based on this research, we placed each justice into one of five categories indicating our confidence in their affiliations with either the Democratic or Republican Parties. These categories are Strong Democratic, Mild Democratic, Indeterminate, Mild Republican, and Strong Republican.

Our confidence measure shows that there are two Strong Democrats on the Delaware Supreme Court (Justices James Vaughn and Collins Seitz), two Mild Democrats (Justices Gary Traynor and Tamika Montgomery-Reeves), and one Indeterminate justice (Justice Karen Valihura). 

Although Justice Traynor is a registered Republican, the Federal Election Commission records that he has donated to Democratic political campaigns and has no recorded donations to Republican campaigns. Justice Valihura is also a registered Republican in the state. Unlike Traynor, she has donated to Republican campaigns throughout her career.

As of 2020, Delaware remains the only state with such a requirement in its constitution. States like New Jersey and Massachusetts have informal but not constitutional rules which mandate balance on the state supreme court.

Justices in Delaware are selected using the assisted appointment method, where the Judicial Selection Commission forwards a list of candidates to the governor. The governor then appoints a candidate who must then be confirmed by the Delaware General Assembly. Justices serve renewable twelve-year terms.

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Partisan shift on Michigan Supreme Court

The November 2020 election changed the partisan balance on the Michigan Supreme Court from Republican to Democrat control. The partisan balance on the court flipped from 4-3 with Republicans controlling the court to 4-3, with Democrats controlling the court.

The two seats up for election on the court were held by Bridget Mary McCormack (D) and Stephen Markman (R), a Republican-appointed justice who had reached his mandatory retirement age and was not eligible to run for re-election. Justice McCormack held her place as Chief Justice and Elizabeth Welch (D) won Justice Markman’s seat. At the time of the election, four of the seven justices on the court were appointed by Republican governors to fill vacancies. Three of the justices on the court advanced from Democratic conventions before winning general elections.

Although the general election is nonpartisan, political parties in Michigan may nominate candidates for state supreme court elections. In 2020, the Democratic Party nominated incumbent Bridget Mary McCormack and Elizabeth Welch, while the Republican Party nominated Brock Swartzle and Mary Kelly.

In 2020, the Michigan Supreme Court ruled unanimously in 64% of the cases they heard. Justices dissented in 10 of the 28 cases heard by the court and ruled unanimously in the other 18.

Michigan Supreme Court justices serve eight-year terms and must be re-elected if they wish to continue serving. Incumbent judges seeking re-election may file an affidavit of candidacy requesting to be placed on the ballot, while non-incumbent candidates must either file a nominating petition or obtain a partisan nomination at a party convention. Incumbency is noted on the ballot, though party affiliation is not.

In the event of a midterm vacancy, the governor appoints a temporary replacement to serve until the next general election. At the governor’s request, the state bar’s standing committee on judicial qualifications interviews, evaluates, and rates all candidates, submitting a confidential report to the governor.

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Governor’s appointment shifts New Mexico Supreme Court partisan balance

New Mexico Governor Michelle Lujan Grisham (D) appointed Julie Vargas (D) to the New Mexico Supreme Court on December 19, 2020. Vargas succeeds Justice Judith Nakamura (R) who retired on Dec. 1. Vargas was Gov. Lujan Grisham’s third nominee to the five-member supreme court. Her appointment shifted the partisan balance on the New Mexico Supreme Court from four Democrat justices and one Republican justice to a court of five Democrat justices.

Under New Mexico law, state supreme court vacancies are filled through assisted gubernatorial appointment, where the governor selects a nominee based on recommendations from a judicial nominating commission. Justices appointed by the governor must stand in a partisan election in the next election cycle to remain on the court.

New Mexico is one of seven states that use partisan elections to select state supreme court justices for either initial or subsequent terms. Of those seven states, four (Illinois, New Mexico, North Carolina, and Pennsylvania) have a Democrat majority while three (Alabama, Louisiana, and Texas) have a Republican majority on the court.

Julie Vargas was a judge on the New Mexico Court of Appeals. She was elected to this position in a partisan election on November 8, 2016, defeating 2016 appointee incumbent Judge Stephen French (R).

Nakamura planned to retire on August 1, but she postponed the retirement date in June. Governor Susana Martinez (R) appointed Nakamura to the court on November 12, 2015, to fill a vacancy. Nakamura was elected on November 8, 2016, to the unexpired term of her predecessor. Nakamura served as chief justice from 2017 to 2020.

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State supreme court vacancies in 2021

So far in 2021, there have been two new state supreme court vacancies in two of the 29 states where replacement justices are appointed instead of elected. The vacancies have both been caused by retirements. 

In Colorado, Chief Justice Nathan Coats retired on January 1, when he reached the mandatory retirement age of 72. Colorado Governor Jared Polis (D) appointed Maria Berkenkotter to the Colorado Supreme Court on November 20, 2020. Berkenkotter is Polis’ first nominee to the seven-member supreme court. In South Dakota, Chief Justice David Gilbertson retired in early January, when he reached the mandatory retirement age of 70 years old. South Dakota Gov. Kristi Noem (R) appointed Scott P. Myren to the South Dakota Supreme Court on October 28, 2020.

Currently, Maine is the only appointment state which had a vacancy in 2020 which has yet to be filled.

Three more states will see vacancies from retirement on their state supreme courts in 2021:

• Joel Bolger, June 30, 2021, Alaska

• Leslie Stein, June 4, 2021, New York

• Eugene Fahey, December 31, 2021, New York

In Alaska, the vacancy will be filled by Republican Governor Mike Dunleavy. Both of the vacancies on the New York Supreme Court will be filled by Democratic Governor Andrew Cuomo.

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Republicans pick up two seats on North Carolina Supreme Court

The results of the 2020 election affected the partisan composition of the North Carolina Supreme Court. Going into the election, Democrats had a 6-1 majority on the court. Republicans held one seat and picked up two net seats, giving Democrats a 4-3 majority.

Paul Martin Newby (R) defeated Cheri Beasley (D) in the partisan November 3 election for the chief justice seat. Tamara Barringer (R) defeated incumbent Mark Davis (D) for Seat 4 while Phil Berger Jr. (R) defeated Lucy Inman (D) for Seat 2, which was left open by Newby.

The race for the chief justice seat was especially competitive. On December 15, 2020, a hand-to-eye recount in the race for chief justice showed Newby defeated Beasley by 401 votes. Beasley had previously conceded the race on December 12.

North Carolina election law allowed statewide candidates to request a recount if 10,000 votes or 0.5% of the total votes cast (whichever was less) separated them from an election winner. On November 17, Beasley’s campaign officially requested a statewide machine recount. The statewide machine recount was completed on December 2, with Newby maintaining his lead. Following the release of results, Beasley’s campaign requested a hand-to-eye recount to be conducted in randomly selected precincts.

2022 could be another competitive year in the North Carolina Supreme Court. The seats held by justices Robin Hudson (D) and Sam Ervin (D) will be up for election on November 8, 2022, meaning Republicans could gain control of the court or Democrats could hold their majority.

Starting with the 2018 election, the seven justices on the North Carolina Supreme Court began to be chosen by partisan election. This became law in December 2016. Before that, the election of appellate judges had been nonpartisan since 2004. In the event of a midterm vacancy, the outgoing judge is replaced via assisted appointment. With the help of a judicial nominating commission, the governor appoints a successor to serve until the next general election occurring more than 60 days after the vacancy occurred. A judge is then elected.

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2020 state supreme court election results

Thirty-five states held state supreme court elections in 2020. In total, 78 of the nation’s 344 state supreme court seats were up for election. At 23%, this was the greatest number of seats up for election in recent years.

Of these seats, at the start of 2020:

  • 59 were held by nonpartisan justices
  • 12 were held by Republican justices
  • Seven were held by Democratic justices

Out of 29 retention elections, 28 justices (97%) won retention. Illinois Supreme Court Justice Thomas Kilbride was the only justice who did not win retention in 2020.

The incumbent win rate for non-retention elections was not quite as high as for retention elections. Out of 41 incumbents, 37 (90%) won their elections in 2020. Two incumbents lost in partisan elections and two incumbents lost in nonpartisan elections. The overall incumbent win rate was 93% in 2020. 

In 2020, Ballotpedia conducted a study in which we examined the partisan affiliations of state supreme court justices. In our work, we gathered a variety of data on 341 active state supreme court justices across the 50 states to understand their partisan affiliations. Based on this research, we placed each justice in categories indicating our confidence in their affiliations with either the Democratic or Republican Parties.

Using public voter registration data, media reports, and Ballotpedia’s study of judicial partisanship, we determined the partisan balances on state supreme courts.

In the 2020 elections, 42 justices with some Republican affiliation won state supreme court seats while 24 justices with some Democrat affiliation won state supreme court seats. There were eight justices with indeterminate partisan affiliations who won state supreme court seats.

As of December 9, four seats had flipped partisanship in 2020. Three of these seats flipped from Republican to Democrat while one switched from Democrat to Republican. Seats switched from Republican to Democrat in Ohio, Michigan, and Wisconsin, while one seat flipped from Democrat to Republican in North Carolina. North Carolina has the potential to see one more seat flip from Democrat to Republican if Paul Newby maintains his lead over incumbent Cheri Beasley in the race for Chief Justice of the North Carolina Supreme Court. As of December 9, Newby had a 401 vote lead pending a hand-to-eye recount at the request of Beasley’s campaign.

The only court to flip its partisan majority in 2020 was Michigan. Justice Bridget Mary McCormack (D) held her place as Chief Justice, and Elizabeth Welch (D) won retiring Justice Stephen Markman’s (R) seat. The partisan balance on the court flipped to 4-3, with Democrats controlling the court. At the time of the election, four of the seven justices on the court were appointed by Republican governors to fill vacancies. Three of the justices on the court advanced from Democratic conventions before winning general elections.

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Retention elections and judicial partisanship

State supreme court justices facing retention elections won re-election more often than their counterparts in states using other systems of judicial selection, according to Ballotpedia’s recently-published study on state supreme courts.

Between 2008 and 2019, 155 justices have faced retention elections. Incumbent justices won 152 (98%) of these elections. Since 2008, there have been 196 non-retention elections with incumbent justices. The incumbent justices won 176 (90%) of these elections. Incumbent justices experienced a 93% win rate across all selection methods.

The most recent retention election to result in an incumbent losing occurred November 3, 2020, in Illinois. Justice Thomas Kilbride, who recorded a Mild Democrat Confidence Score, did not receive the necessary 60% of the vote needed to win retention. In 2014, Justice Lloyd Karmeier faced opposition in his retention election bid for his seat on the Illinois Supreme Court. He was retained by a margin of 0.8 percentage points. Karmeier recorded a Mild Republican Confidence Score. Illinois has been a Democratic trifecta for 14 out of the last 18 years.

Between 2008 and 2019, Iowa was the only state with retention elections where justices were not retained. Iowa Supreme Court justices Marsha K. Ternus, Michael J. Streit, and David L. Baker lost their retention elections in 2010. Ternus was appointed by Republican Governor Terry Branstad, while Baker and Streit were appointed by Democratic governors. They were replaced by Bruce Zager, Thomas Waterman, and Edward Mansfield, all three of whom were appointed by Republican governor Terry Branstad in 2011.

Retention elections are meant to give voters an opportunity to evaluate judges after their first years on the state supreme court. Missouri’s Nonpartisan Court Plan reads in part: “The nonpartisan plan also gives the voters a chance to have a say in the retention of judges selected under the plan…. The purpose of this vote is to provide another accountability mechanism of the nonpartisan plan to ensure quality judges.”

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Ballotpedia study: population distribution mirrors state supreme court partisanship 

Ballotpedia recently published a new study on state supreme courts entitled “Ballotpedia Courts: State Partisanship”. Among the findings, the study revealed trends in the distribution of the population across the country that closely tracked with the breakdown of partisan control over state supreme courts.

The correlation between population distribution and court partisanship was closest among states with supreme courts where a majority of the justices are affiliated with the Republican party. On 27 (54%) state supreme courts, justices with Republican Confidence Scores (our level of confidence in partisan affiliation) make up a majority on the state supreme court. There are 178 (52.2%) justices with Republican Confidence Scores in the country. Of the U.S. population, 57.7% of citizens live in states with a Republican Court Balance Score, and 51.1% of citizens live in a state which has a majority of justices with Republican Confidence Scores on the court.

The correlation between population distribution and court partisanship was less close among states with supreme courts where a majority of the justices are affiliated with the Democratic party. On 15 (30%) state supreme courts, justices with Democratic Confidence Scores make up a majority of the justices. There are 114 justices with Democratic Confidence Scores (33.4%) in the country. Of the U.S. population, 42.3% of citizens live in states which have a court with a Democrat Court Balance Score, and 39.9% live in a state which has a majority of justices with Democratic Confidence Scores on the court.

Most people in the United States live in a state with a partisan majority on the supreme court. However, there were eight courts (16%) where there were neither justices with Democratic Confidence Scores nor justices with Republican Confidence Scores occupying a majority of the court. Forty-nine justices (14.4%) recorded an Indeterminate Confidence Score (where the justice did not have a clear tie to either party), and 9% of citizens live in a state with a split court, or a court with a majority of justices with indeterminate partisan leanings.

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Previewing Arizona House of Representatives elections

All 60 seats in the Arizona House of Representatives are up for election in 2020. Republicans lost seats but maintained their majority in the 2018 elections for the Arizona House of Representatives, winning 31 seats to Democrats’ 29. Arizona state representatives serve two-year terms, with all seats up for election every two years. Thirty multi-member state House districts elect two members each.

Ballotpedia has identified eight of the races in 2020 as battlegrounds, four of which are Democrat-held districts, three of which are Republican-held districts, and one district which is split between Republicans and Democrats. The Democrat-controlled battlegrounds are Districts 7, 10, 18, and 28. The Republican-controlled battlegrounds are Districts 6, 20, and 23. The split battleground is District 17 which is currently represented by both a Democrat and a Republican. Based on an analysis of these districts’ electoral histories, these races have the potential to be more competitive than other races and could lead to shifts in the partisan balance of the Arizona House of Representatives. 

Arizona has been under a Republican trifecta since 2009 when Gov. Jan Brewer (R) was sworn into office. Brewer’s accession to the governorship ended a period of divided government that began when Republicans lost their majority in the state Senate during the 2000 legislative elections. Republicans regained their Senate majority in the 2002 elections, when Janet Napolitano (D) was elected governor. Heading into the 2018 election, Republicans had maintained control of the state House since the 1966 elections. Had the Democratic Party taken the state House, it would have broken the Republican trifecta.

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