Author

Samuel Postell

Samuel Postell is a staff writer at Ballotpedia. Contact us at editor@ballotpedia.org.

Ballotpedia publishes state court partisanship study

Each state has at least one supreme court, or court of last resort. Oklahoma and Texas each have two such courts, one for civil appeals and one for criminal appeals. Ballotpedia Courts: State Partisanship—a culmination of eight months of research and compilation of raw data—supplies Partisan Confidence Scores for 341 active state supreme court justices on all 52 courts of last resort. 

We gathered a variety of data on each justice and, based on that data, 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 ConfidenceMild Democratic ConfidenceIndeterminate ConfidenceMild Republican Confidence, and Strong Republican Confidence

The study does not specifically describe the partisan affiliation of judges. We call our scores Confidence Scores because we believe they provide insight into the degree of confidence we have in each justice’s political leanings because of their previous partisan activity.

Here are some of the key findings from the study:

  1. Of the 341 justices studied, we assigned Republican scores to 178 (52.2%), Democratic scores to 114 (33.4%), and Indeterminate scores to 49 (14.4%). 
  2. Twenty-seven states (54%) have a majority of justices with Republican scores. Fifteen state supreme courts (30%) have a majority of justices with Democratic scores. Eight state supreme courts (16%) do not have a majority of justices with Democratic scores or Republican scores. 
  3. 39.9% of the population live in a state which has a majority of justices with Democratic scores on the court. 51.1% of citizens live in a state which has a majority of justices with Republican scores on the court. 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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Illinois Supreme Court decides case allowing suspended police officers to seek backpay

On October 22, 2020, the Illinois Supreme Court decided Goral v. Dart, a case on police officers’ right to due process to claim backpay. 

The case concerned a decision regarding the legitimacy of Cook County Sheriff Tom Dart’s Merit Board. The Illinois Supreme Court upheld an appellate court’s decision which determined that officers suspended without pay could sue the sheriff’s office over the legitimacy of the merit board’s determination that those officers would be suspended without pay. The decision allows the officers to resume their case in circuit court where they may seek repayment for lost wages during their suspensions.

Justice P. Scott Neville (D) wrote the majority opinion in the case and was joined by Justices Thomas Kilbride (D) and Lloyd Karmeier (R) as well as Chief Justice Anne M. Burke (D). Justice Michael J. Burke (R) dissented, with opinion, joined by Justices Rita Garman (R) and Mary Jane Theis (D).

Attorneys Chris Cooper and Cass Casper, attorneys for the suspended police officers, said “Today Tom Dart is being told in crystal clear language that the officers are entitled to due process and entitled to their backpay.”

Sheriff’s office spokesman Matthew Walberg said, “Today’s Illinois Supreme Court decision is a catastrophic blow to law enforcement accountability… The decision rewards employees who engaged in criminal, unethical and despicable conduct at the expense of Illinois taxpayers.”

The election on November 3, 2020, will decide three seats on the Illinois Supreme Court:

  • District 1: Justices Neville is up for election. He was appointed by the Illinois Supreme Court to fill a vacancy on the court. Illinois is the only state in the country that allows the state supreme court to choose who fills a vacant seat on the court. 
  • District 3: Justice Kilbride faces a yes-no retention election to keep his seat on the state supreme court. 
  • District 5: Justice Karmeier’s seat is also up for election. Karmeier announced his retirement on December 6, 2019. 

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Texas Gov. Abbott appoints Rebeca Huddle to replace Justice Paul Green on state supreme court

On October 15, 2020, Gov. Greg Abbott (R) appointed Rebeca Huddle to replace Justice Paul Green on the Texas Supreme Court.

Justice Green announced his retirement from the Texas Supreme Court in August 2020.

Huddle is a Republican who served as a justice on Texas’ First District Court of Appeals. She graduated from Stanford University and the University of Texas School of Law. Upon her appointment, Huddle said, “I understand the magnitude of the trust and responsibility that the governor is placing in me and in every justice of the Supreme Court, and I’ll work hard every day to earn that trust anew.”

Huddle will face a retention election in 2022 to keep her seat on the court.

Abbott said, “Rebeca is a first-generation American. Her mother emigrated from Juarez to Texas and later became a naturalized citizen. Rebeca’s father passed away when she was just 5 years old … Although her mother never graduated from high school, she worked tirelessly as a seamstress in a factory in El Paso to provide for Rebeca and her four siblings.”

Abbott has appointed three others to fill vacancies on the all-Republican appointed Texas Supreme Court since taking office in 2015. He appointed Justices Jane Bland, Brett Busby and Jimmy Blacklock.

Four justices on the Texas Supreme Court face re-election in 2020: Jeffrey S. Boyd, Brett Busby, Nathan Hecht, Jane Bland.

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Washington State Supreme Court overrules recall petition against Seattle mayor

On October 8, 2020, the Washington State Supreme Court reversed a lower court ruling which allowed a recall effort against Seattle Mayor Jenny Durkan (D).

The supreme court’s unanimous order read, “The allegations in this case are deeply troubling and our review requires that we treat the factual allegations as true. Nevertheless, after carefully considering the issues presented, the court concludes that the recall charges presented in this case are factually and legally insufficient.”

Elliott Grace, Harvey, Alan Meekins Jr., Courtney Scott, Leah Solomon, and Charlie Stone organized the recall effort.

The Washington Constitution allows for the recall of elected officials if they violate their oath of office or “in commission of some act or acts of malfeasance or misfeasance while in office.” To put a recall on the ballot, recall supporters have 180 days to collect valid signatures equal to 25% of the total vote for the office in the last regular election.

Organizers in the recall effort against Durkan began filing paperwork on June 15, 2020.

King County Superior Court Judge Mary Roberts ruled on July 10, 2020, that petitioners could begin gathering signatures. Roberts dismissed six of the seven charges as insufficient for a recall election. The second charge was found to be sufficient grounds for the recall effort to move forward. Recall organizers had until January 6, 2021, to gather about 54,000 valid signatures in order to put the recall election on the ballot.

The second charge of the recall petition said, “Mayor Durkan endangered the peace and safety of the community and violated her duties under RCW 35.18.200, Seattle Charter Art. V, Sec. 2, SMC 10.02.010A, and her oath to uphold US Const., Amends. 1 and 4, Washington Constitution, Art. 1 Sec. 3-5, when she failed to institute new policies and safety measures for the Seattle Police Department when using crowd control measures during a public health emergency.”

The state of Washington selects its state supreme court justices through nonpartisan elections. Of the nine members on the supreme court, five have been appointed by Democratic governors to fill vacancies on the court.

The terms of justices Raquel Montoya-Lewis, Charles W. Johnson, and Debra Stephens will expire on January 10, 2021. Additionally, Justice G. Helen Whitener was appointed to fill the vacancy created by Justice Charlie Wiggins’ retirement in March of 2020, so she will face retention election this year. The four seats are up for nonpartisan election on November 3, 2020.

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Whitener, Serns compete in Washington State Supreme Court election

Incumbent G. Helen Whitener and Richard Serns are running in the special general election for Washington State Supreme Court Position 6 on November 3, 2020.

Whitener was appointed by Governor Jay Inslee (D) on April 13, 2020, following Justice Charles K. Wiggins’ retirement. Whitener was previously a judge on the Pierce County Superior Court, on the Washington Board of Industrial Appeals, and an attorney in private practice.

Whitener said that the main issue in the election is experience. She said, “I would not get on a plane with a pilot who just got his license and hadn’t gotten some flying under the guidance of a well-seasoned pilot… That might be a bad analogy but it is very similar to what we’ve been discussing.” 

Richard Serns is a former school administrator. Serns responded to Ballotpedia’s Candidate Connection survey and said his professional experience includes working as a superintendent of schools, as an adjunct law school professor, as the lead negotiator for collective bargaining agreements, and as a Title IX, non-discrimination, anti-bullying, and anti-harassment compliance officer.

Serns said the constitution does not require prior experience in law to serve on the court, and that “sometimes an outsider can bring a new set of eyes and that can be helpful to deliberations.” He also argued that his experience as an administrator gives him the skillset for a position on the court: “The skillset is listening carefully, asking probing questions, research, research, research, deliberate, confer and write,” he said. “All of those things I’ve had extensive experience at.”

Whitener is one of five justices on the nine-member Washington State Supreme Court appointed by Democratic governors to fill vacancies.

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Former Ohio secretary of state challenges Justice Judith French for a seat on the Ohio Supreme Court 

Incumbent Judith French and Jennifer L. Brunner are running in the general election for Ohio Supreme Court on November 3, 2020.

Justice French was appointed to the Ohio Supreme Court by Gov. John Kasich (R). She assumed office on January 1, 2013. She advanced from the Republican primary for Ohio Supreme Court on April 28, 2020. Her previous political experience includes serving as chief legal council for Gov. Bob Taft (R) from 2002 through 2004 and as assistant attorney general to Betty Montgomery (R) from 1997 through 2002.

Brunner advanced from the Democratic primary for Ohio Supreme Court on April 28, 2020. She served as Ohio secretary of state from 2007 until 2011 and was elected to the 10th District Court of Appeals in 2014.

Two justices of the Ohio Supreme Court face re-election this year. In addition to Justice French, Justice Sharon L. Kennedy will stand for re-election. Justice Kennedy advanced from the Republican primary for Ohio Supreme Court on April 28, 2020.

Two justices currently on the Ohio Supreme Court have advanced from Democratic primaries to win the general election, and five justices on the Ohio Supreme Court have advanced from Republican primaries to win the general election. If both incumbents are defeated in the November general election, the court will have a majority of justices who have advanced from Democratic primaries.

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Fabiana Pierre-Louis confirmed to state Supreme Court by New Jersey Senate

On August 26, 2020, Justice Walter Timpone announced that he planned to retire early from the New Jersey Supreme Court if supreme court nominee Fabiana Pierre-Louis was confirmed by the Senate before September. On August 27, 2020, the New Jersey Senate voted 39-0 to approve Pierre-Louis.

Pierre-Louis is Governor Phil Murphy’s (D) first nominee to the supreme court. Because Justice Timpone will reach the age of 70 this year, he must retire due to a provision in the state’s constitution.

In the case of a vacancy on the court, the governor is tasked with selecting a nominee who is then confirmed by the Senate Judiciary Committee, followed by a confirmation by the entire Senate.

The state of New Jersey mandates partisan balance on the court. Justice Timpone was nominated as a Democrat, so Gov. Murphy had to nominate a Democrat to the court according to state law. Justice Timpone was appointed by Gov. Chris Christie (R).

Pierre-Louis is a first generation American and her parents are Haitian immigrants. Gov. Murphy stated, “I am honored to have put her name forward, and to see someone with a different set of life experiences and perspectives on our Supreme Court, a judicial body where New Jerseyans from all walks of life turn for justice.”

After Gov. Murphy announced her nomination, Pierre-Louis stated, “Many years ago, my parents came to the United States from Haiti with not much more than the clothes on their backs and the American dream in their hearts… I think they have achieved that dream beyond measure because my life is certainly not representative of the traditional trajectory of someone who would one day be nominated to the Supreme Court of New Jersey.”

Pierre-Louis was a prosecutor in the U.S. Attorney’s Office for the District of New Jersey. She was also a law clerk for state Supreme Court Justice John Wallace Jr.

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New Mexico Supreme Court rules Governor Lujan Grisham may fine businesses for violating public health orders

On August 4, 2020, the New Mexico Supreme Court unanimously ruled that the governor may legally fine businesses that violate the New Mexico Public Health Emergency Response Act.

The case came to the supreme court after several businesses filed suit in the 9th Judicial District in Curry County. The state Republican Party helped organize the complaint against the governor. The plaintiffs claimed that the power of the governor to fine businesses that violated the Emergency Response Act was not inherent to the act itself. Chief Justice Michael Vigil, writing the court’s opinion, said, “The Legislature has clearly given the governor that authority.”

In response to the supreme court’s decision, Republican Party Chairman Steve Pearce said, “We are deeply disappointed in today’s Supreme Court decision… This ruling demonstrates the need to seek change at the polls this November by electing conservative judicial candidates who will help protect our freedoms and basic rights. What happens at the polls impacts what happens in our lives in New Mexico, and we must make a stand this fall on Election Day.”

Gov. Michelle Lujan Grisham (D) tweeted in response to the court’s decision: “The state shouldn’t have to fine anybody…Doing the right thing in a crisis shouldn’t be something we have to argue about. But anyone endangering the lives of New Mexicans will face the consequences.”

The state supreme court may hear a similar case in the future. In July, the New Mexico Restaurant Association filed a lawsuit in a state District Court challenging the state’s authority to order establishments to close indoor dining again after briefly allowing the businesses to reopen at 50% capacity.

As of August 11, Ballotpedia has tracked 681 lawsuits filed in response to policies implemented to address the COVID-19 outbreak in the United States. Of these 681 suits, 189 have been filed in state-level courts (and 34 of those have been taken up by state supreme courts). The remaining lawsuits have been filed in the federal judiciary.

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United States Supreme Court to decide Carney v. Adams in October 2020

Image of the front of the United States Supreme Court building.
On July 13, 2020, the United States Supreme Court released its calendar for the October 2020 session.
The first case that the Supreme Court will hear is Carney v. Adams, a case from Delaware that challenges Article IV, Section 3 of the Delaware Constitution which mandates partisan balance on the state supreme court.
Article IV, Section 3 of the constitution reads, “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.” Delaware is the only state in the country to contain such a provision in its state constitution. Some other states have informal and formal appointment rules which mandate partisan balance on the state supreme court.
Carney v. Adams comes before the Supreme Court because James R. Adams, a resident of Delaware and member of the state Bar Association, sought a position on the state supreme court. He decided not to apply for the position because, according to the partisan balance provision in the state constitution, the governor must appoint a Republican and Adams is neither a registered Republican nor Democrat. Adams then filed a lawsuit against the governor of Delaware, challenging the provision in the state constitution which mandates that justices must be representative of the major parties in the state. Adams argued that Article IV Section 3 violates the first amendment.
Governor John Carney (D) argued that Adams did not have the legal right to file a lawsuit. When Adams filed suit, the district court ruled that he had Article 3 standing on some of the aspects of the case, but not all. The district court noted that a government employer may not make employment decisions based on political allegiance except with respect to policymakers. Upon appeal, the U.S. Court of Appeals affirmed in part and reversed in part the federal district court’s ruling. Gov. Carney filed a petition with the U.S. Supreme Court, arguing the 3rd Circuit’s decision conflicted with decisions in similar cases from the 2nd Circuit, 6th Circuit, and the 7th Circuit.
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Illinois Supreme Court rules that police misconduct records cannot be destroyed, contrary to collective bargaining agreement

On June 18, 2020, the Illinois Supreme Court ruled 6-1 that the need to keep police misconduct records outweighs a section in the collective bargaining agreement between the city of Chicago and the Fraternal Order of Police (FOP).

At issue was Section 8.4 of the collective bargaining agreement, the Local Records Act, and the Freedom of Information Act. In 2011 and 2012, the FOP filed two grievances against the city of Chicago when the city refused to destroy complaint records that were more than five years old. The city denied both grievances and the FOP initiated arbitration.

Section 8.4 of the collective bargaining agreement reads, “All disciplinary investigation files, disciplinary history card entries, Independent Police Review Authority and Internal Affairs Division disciplinary records, and any other disciplinary record or summary of such record other than records related to Police Board cases, will be destroyed five (5) years after the date of the incident or the date upon which the violation is discovered, whichever is longer.”

In his opinion, Justice Lloyd Karmeier wrote, “We find further support that Illinois public policy demands the oversight of the destruction and maintenance of government records through creation of a State Records Commission which, under the State Records Act, similarly requires state agencies to seek the approval of the State Records Commission prior to the destruction of state records.” As for the right to contract, Karmeier wrote, “While parties are generally free to make their own contracts, this court has long held that when a conflict exists between a contract provision and state law, as it clearly does in this case, state law prevails.”

In his dissent, Justice Thomas Kilbride wrote that the court’s decision that the collective bargaining agreement violated state law foreclosed the possibility of the city of Chicago and the FOP meeting in order to renegotiate the contract to ensure better compliance with state law. He wrote, “I believe the parties should be allowed to meet and negotiate in accordance with the arbitrator’s directive. This court could retain jurisdiction and remand for negotiations. After proceeding with negotiations, it would be warranted for this court to review the status of any agreement.”

In response to the decision, FOP President John Catanzara said, “It goes against every ounce of logic there is… the contractual rights that were in our collective bargaining agreement for the better part of four decades were set in stone.” He said he is instructing the union’s lawyers to see if there is a way to take the case to the U.S. Supreme Court.

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