Abortion debate creates ‘new era’ for state supreme court races in 2024

The 2024 elections will be dominated by the presidential contest and the battle for control of Congress, but another series of races is shaping up to be just as consequential.

Crucial battles over abortion, gerrymandering, voting rights and other issues will take center stage in next year’s elections for state supreme court seats — 80 of them in 33 states.

The races have emerged as some of the most hotly contested and costliest contests on the ballot since the U.S. Supreme Court overturned Roe v. Wade, eliminating the constitutional right to an abortion. The decision shifted the abortion debate to states, creating a “new era” in state supreme court elections, said Douglas Keith, senior counsel in the judiciary program at the Brennan Center for Justice, which tracks spending in judicial races.

“We have seen attention on state supreme court elections like never before and money in these races like never before,” Keith said.

Heated court races in Wisconsin and Pennsylvania in 2023 handed victories to Democrats and saw tens of millions of dollars in TV ads, offering a preview of 2024. They're also prompting groups to consider investing in states they would not previously have considered.

ABORTION AND GERRYMANDERING TOP ISSUES

At least 38 lawsuits have been filed challenging abortion bans in 23 states, according to the Brennan Center. Many of those are expected to end up before state supreme courts.

The ACLU is watching cases challenging abortion restrictions in Wyoming, Kentucky, Ohio, Utah, Florida, Nevada, Arizona, Nebraska, Georgia and Montana.

“After Roe v. Wade was overturned, we had to turn to state courts and state constitutions as the critical backstop to protecting access to abortion,” said Brigitte Amiri, deputy director at the ACLU’s Reproductive Freedom Project. “And the stakes are unbelievably high in each of these cases in each of these states.”

The ACLU was among major spenders on behalf of Democrats in this year's state supreme court contests in Wisconsin and Pennsylvania.

Another big player in recent court races has been the Republican State Leadership Committee, which has said its focus is mainly on redistricting, or the drawing of political district boundaries. The group called state supreme courts the “last line of defense against far-left national groups,” but didn't say how much it intends to spend on next year's races or which states it's focusing on.

In Ohio, Democrats are expected to cast state supreme court races as an extension of the November election in which voters enshrined the right to abortion in the state constitution. The state has more than 30 abortion restrictions in place that could be challenged now that the amendment has passed.

“The state supreme court is going to be the ultimate arbiter of the meaning of the new constitutional amendment that the people voted for and organized around,” said Jessie Hill, law professor at Case Western Reserve University and a consultant for Ohioans United for Reproductive Rights. “That is a huge amount of power.”

With three seats up for a vote and a current Republican majority of 4-3, Democrats have an opportunity to flip the majority of the court while Republicans will try to expand their control. Hill said the “very high-stakes election” will serve as another test of the salience of the abortion issue in turning out voters.

“We saw an incredible number of voters come out to vote on that amendment and an incredible amount of investment in those campaigns,” Hill added. “I think we’ll see a similar attention and investment in Ohio come next year.”

Redistricting also is likely to be a main focus in the state's supreme court races, given the court will have realigned politically since it issued a series of rulings finding Ohio’s congressional and legislative maps unconstitutionally gerrymandered to favor Republicans, said David Niven, political science professor at the University of Cincinnati. He expects millions of dollars to be spent on those campaigns.

“There’s often little conversation about these races, but they are just so utterly consequential in very tangible, practical ways that touch voters’ everyday lives,” he said.

MAP BROADENS FOR CONSEQUENTIAL RACES

Pending legislative and congressional redistricting cases also could play a role in North Carolina.

Republicans in North Carolina are looking to expand their majority two years after the court flipped from Democratic control in the 2022 election. That flip to a 5-2 GOP majority led to dramatic reversals in 2023 on rulings made by the previous court, which had struck down a 2018 photo voter identification law as well as district maps for the General Assembly and the state’s congressional delegation.

Groups on both sides also are expected to focus on Michigan, where Democrats hold a 4-3 majority on the state Supreme Court. Candidates run without political affiliations listed on the ballot, though they’re nominated by political parties.

Two incumbents — one Democrat, one Republican — will be up for election in 2024. The court recently kept former President Donald Trump on the state's ballot, denying a liberal group's request to kick him off. It is currently weighing a high-profile case over a Republican legislative maneuver that gutted a minimum wage hike backed by voters.

2023 RACES A PREVIEW

In Wisconsin, abortion played a dominant role in the 2023 court race, with Democrats flipping the court to a 4-3 majority in a campaign that shattered previous national records for spending in state supreme court elections.

Liberal-leaning Justice Janet Protasiewicz defeated former Justice Dan Kelly, who previously worked for Republicans and had support from the state’s leading anti-abortion groups.

Protasiewicz was targeted with impeachment threats this year over comments she made on the campaign trail about redistricting as Republicans argued she had prejudged what then was an expected case on the state's heavily gerrymandered state legislative districts. Experts say the controversy is an example of how more money and attention have changed the dynamics of many state supreme court races to be increasingly partisan.

Democrats in Pennsylvania added to their majority on the court after a race with tens of millions of dollars in spending. Democrat Dan McCaffery won after positioning himself as a strong defender of abortion rights.

CONTESTED SEATS EVEN IN DEEP RED STATES

It remains to be seen whether abortion rights will play a factor in states where party control isn't at stake. That includes Arkansas, where the court is expected to maintain its 4-3 conservative majority. The seats up next year include the chief justice position, which has drawn three sitting justices.

A fight over abortion could wind up before the court, with a group trying to put a measure on the ballot next year that would scale back a state ban on the procedure that took effect once Roe was overturned.

Abortion rights supporters also aren't writing off longshot states such as Texas and its all-Republican high court, which rejected the request from a pregnant woman whose fetus had a fatal condition to be exempted from the state's strict abortion ban.

In Montana, Republicans have spent huge sums to try to push the court in a more conservative direction. The liberal-leaning court is expected to hear cases related to restrictions on transgender youth and abortion. A landmark climate change case also is pending before the court, which will have two of its seven seats up for election.

Jeremiah Lynch, a former federal magistrate running for the open chief justice position, has cast himself as a defender of the court's independence and has warned voters to expect a barrage of negative advertising. Cory Swanson, a county attorney also running for the post, announced his bid on a conservative talk show and recently vowed to weed out any “radicalized” applicants for law clerks in response to antisemitism on college campuses.

In West Virginia, where conservatives have a current 5-4 majority on the court and two seats will be up for grabs, GOP chair Elgine McArdle said Republicans aim to focus more on judicial races than in years past.

“One area the state party has never really engaged much in is nonpartisan races, including the judicial races," McArdle said. “That won’t be the case this time around.”

Morning Digest: These are the top 10 state supreme court battles of the coming cycle

The Daily Kos Elections Morning Digest is compiled by David Nir, Jeff Singer, Stephen Wolf, Carolyn Fiddler, and Matt Booker, with additional contributions from David Jarman, Steve Singiser, Daniel Donner, James Lambert, David Beard, and Arjun Jaikumar.

Leading Off

State Supreme Courts: In a new story, Daily Kos Elections' Stephen Wolf looks state-by-state at the supreme court elections in 2021-2022 where progressives or conservatives could gain majorities or make major inroads. The federal judiciary grew ever more hostile to voting rights during the Trump era, and the right-wing majority on the U.S. Supreme Court has refused to curtail partisan gerrymanders designed to entrench one-party rule. But at the same time, state courts such as Pennsylvania's have started striking down these gerrymanders and issuing their own decisions defending voting access.

Crucially, these decisions have relied on protections found in state constitutions, meaning that they're insulated from U.S. Supreme Court review (at least for the time being). Almost every state constitution, in fact, offers similar protections—the issue is who's interpreting them. Unlike federal judges, most state supreme court justices are elected to their posts, and while the almost uniquely American practice of electing judges creates serious problems for judicial impartiality, it nevertheless presents progressives with the opportunity to replace conservative ideologues with more independent-minded jurists.

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​With 10 major states up for grabs over the next two years, progressives have the chance to flip Ohio's Supreme Court, gain a more solid majority in Montana, and make gains that could set them up to flip conservative-heavy courts in Georgia, Texas, and Virginia later this decade. Meanwhile, Republicans could take control of Democratic-leaning courts in Illinois, Michigan, Minnesota, and North Carolina. Elections in these states could have major implications for efforts to constrain gerrymandering and protect the right to vote over the next decade.

Senate

AL-Sen, AL-Gov: Lt. Gov. Will Ainsworth, whose name had come up as a possible candidate for Alabama's open Senate seat, announced on Friday that he would not join the GOP primary. However, while Ainsworth did not mention next year's race for governor, he did say in a statement that he believes "that God's plan currently calls for me to continue leading on the state, not federal, level of government"—a hint that he could instead run for that post. The current incumbent, Republican Kay Ivey, could seek another term but hasn't yet announced her plans and may, at age 76, opt to retire.

OH-Sen, OH-Gov: Republican Rep. Warren Davidson said over the weekend that he's considering a bid for Ohio's open Senate race and also suggested he could primary Gov. Mike DeWine. In an interview with Fox at CPAC, Davidson criticized DeWine for his "overbearing" approach to fighting the pandemic and said he should have behaved more like Florida Gov. Ron DeSantis. Of course, it's one thing to take jabs at an incumbent unpopular with conservatives when in the most friendly possible environment; it's quite a lot further to challenge him in an actual campaign.

Governors

MA-Gov: Democrat Joe Curtatone announced on Monday that he would not seek a sixth term this fall as mayor of Somerville, a city of 81,000 located just north of Boston, and he once again did not rule out a bid for governor in 2022. Curtatone said his decision was not a "political calculus to a calendar or timeline," adding, "I'm not even thinking about what I may or may want to do."

Back in December, the conservative Boston Herald reported that Curtatone was mulling over a bid against Republican Gov. Charlie Baker, who has not yet revealed his own plans. While Curtatone still hasn't publicly expressed interest, though, one of his longtime advisors did say the mayor was thinking about it. Consultant Mark Horan, who acknowledged that it would have been "extremely difficult" for Curtatone to seek a promotion while also running for reelection, said of a potential gubernatorial run, "It certainly makes sense that he is considering it."

NY-Gov: Democratic Gov. Andrew Cuomo will face an independent investigation into charges that he sexually harassed female members of his staff after a second aide, former health policy staffer Charlotte Bennett, accused him of repeatedly asking her invasive and unwanted questions about her sex life. Following Bennet’s allegations, a third woman, Anna Ruch, said on Monday that Cuomo made an unsought advance on her at a wedding, grabbing her face and asking if he could kiss her before she was able to pull away.

Bennett, who is 25, revealed to the New York Times's Jesse McKinley that the 63-year-old Cuomo, whom she served as an executive assistant, did not touch her but asked her questions like whether "she was romantically involved," "was monogamous in her relationships," "believed if age made a difference in relationships" and "had ever been with an older man." According to Bennett, Cuomo told her "he's fine with anyone above the age of 22." She told McKinley, "I understood that the governor wanted to sleep with me, and felt horribly uncomfortable and scared."

Bennett contemporaneously documented her encounters in text messages with friends and family members. She also reported them to Cuomo's chief of staff in June and was soon transferred to a new position advising on health policy, explaining that she chose not to press for an investigation because she was happy with her new post and "wanted to move on." However, Bennett left her job in November, saying, of Cuomo, "His presence was suffocating. I was thinking that I could recover and have distance but that is so naïve."

Following the Times report on Friday, which came just two days after another former aide, Lindsey Boylan, accused Cuomo of fostering a hostile workplace and kissing her on the mouth without her consent, top Democrats across the state immediately demanded an inquiry. Cuomo sought to head off these demands on Saturday by trying to hand-pick his own investigator, former federal Judge Barbara Jones—a move that was met with instant derision given Jones' close ties to a former top Cuomo aide, Steven Cohen.

In a rare climb-down reflecting his precarious position, Cuomo quickly reversed course on Sunday and asked state Attorney General Tish James and Chief Judge Janet DiFiore to jointly name an independent attorney to investigate the allegations. James, however, instantly shot down that proposal as well, saying that her office alone has the legal authority to handle the matter. (And though James didn't mention it, DiFiore was appointed to her position leading New York's highest court, the Court of Appeals, by Cuomo.)

Remarkably, Cuomo backed down a second time later that same day and said he would refer the matter outright to James, which he did the following day. James promised to hire an outside law firm to lead the probe and pledged she would "oversee a rigorous and independent investigation."

Cuomo's response to the substance of Bennett's charges has also differed markedly from how he reacted to Boylan's accusations, which he simply denied entirely. On Sunday, in a statement that referenced Bennett but not Boylan, Cuomo said, "I now understand that my interactions may have been insensitive or too personal and that some of my comments, given my position, made others feel in ways I never intended," and added a no-pology: "To the extent anyone felt that way, I am truly sorry about that."

Bennett rejected Cuomo's remarks as insufficient on Monday, saying in a statement that the governor "has refused to acknowledge or take responsibility for his predatory behavior." She also offered encouragement to other women who might come forward.

Whether or not in response to Bennett’s entreaty, Ruch did just that. On Monday, she told the New York Times that, after she thanked the governor for making a toast on behalf of her newly married friends, Cuomo swiftly placed his hand on her bare lower back. A friend photographed the ensuing moments, in which Cuomo placed both hands on Ruch’s cheeks and, says Ruch, asked, “Can I kiss you?” Ruch’s friend says Cuomo kissed Ruch on the cheek as she removed herself from his grasp. A Cuomo spokesperson “did not directly address Ms. Ruch’s account,” says the Times, only directing reporters back to the Sunday statement described above.

While a number of prominent Democrats have said Cuomo should resign if James' investigation inculpates him, a growing chorus has called for him to leave office immediately. A telling example came from Rep. Kathleen Rice, who tweeted, “The Governor must resign” shortly after the Times published Ruch’s story. In 2010, Rice was Cuomo’s preferred candidate to succeed him as attorney general, though she lost the Democratic primary to Eric Schneiderman.

If Cuomo were to leave office early, he would be succeeded by Lt. Gov. Kathy Hochul, a former congresswoman who is serving her second term as Cuomo’s number two.

House

NC-11: In a new report from BuzzFeed, two more women, Caitlin Coulter and Leah Petree, have publicly accused freshman Republican Rep. Madison Cawthorn of sexually harassing them while they attended Patrick Henry College in 2016 and 2017. Previously, three women (including two by name) came forward in the summer of 2020 to charge Cawthorn with similar acts both before and during his time at Patrick Henry.

Several other students also told BuzzFeed that Cawthorn had developed a reputation for predatory behavior despite his brief enrollment at the school (he was there for just over a semester), and two dorm leaders also confirmed that they'd warned women about him.

NJ-02: Democratic Assemblyman Vince Mazzeo has announced he'll run for a competitive state Senate seat that's open this fall due to a Republican retirement, which probably takes him out of the running for a challenge to Republican Rep. Jeff Van Drew. Win or lose in November, it'd be unlikely that Mazzeo would want to immediately turn around and run another tough race.

OH-16: With the support of his old boss, former Donald Trump aide Max Miller has entered the GOP primary against Rep. Anthony Gonzalez, who was one of 10 House Republican who voted to impeach Trump in January. Miller, a Marine Corps reservist, hails from a family of prominent Jewish philanthropists in the Cleveland neighborhood of Shaker Heights but only recently moved into Gonzalez's 16th District, which lies to the west, south, and east of the area where Miller grew up (yes, it's that hideously gerrymandered).

The announcement makes Miller the first notable Republican to join the race, but former state Rep. Christina Hagan has also hinted at her interest. However, she's said she might instead choose to seek Democratic Rep. Tim Ryan's 13th District, depending on how redistricting turns out.

TX-06: Republican Brian Harrison, who served as chief of staff to former Trump Health and Human Services chief Alex Azar during his disastrous handling of the COVID pandemic, announced Monday that he could compete in the May 1 special election to succeed the late GOP Rep. Ron Wright. Politico wrote last month of the now-candidate, "In the West Wing, a handful of his detractors derisively referred to Harrison as 'the dog breeder'—a reference to the labradoodle-breeding family business that he helped run prior to joining the Trump administration." More on that here.

Meanwhile, The Hill reports that former Trump spokesperson Katrina Pierson also plans to run. The filing deadline is Wednesday, so we'll have a full-line up for the all-party primary very soon.

WY-AL: State Rep. Chuck Gray just filed paperwork with the FEC ahead of a possible primary challenge to Republican Rep. Liz Cheney, though he has yet to speak publicly about his interest. Gray's name surfaced last month when a poll for Donald Trump's super PAC included him. His Twitter bio only describes him as a member of the legislature, not a congressional candidate, though his feed is mostly filled with attacks on Cheney. Another GOP lawmaker, state Sen. Anthony Bouchard, is already running.

Legislatures

Special Elections: Tuesday brings the busiest special election night of the year so far, with three races on deck in Alabama, California, and Connecticut.

AL-SD-26: This Democratic Montgomery-based seat became vacant when former Sen. David Burkette resigned last year. Burkette did not cite a reason for his resignation at the time, but was arrested and sentenced to a year of probation just a few weeks later because of a campaign finance violation.

Democratic state Rep. Kirk Hatcher will take on Republican William Green, a minister. Alabama is a difficult state to wrangle data from, so we don't have presidential results for this district. Based on prior results for races here, though, this is a strongly Democratic district. Burkette twice defeated Republican DJ Johnson here in 2018; once in a special election by an 89-10 spread and again later in the year in the regular election 80-20.

Republicans have a 26-7 edge in this chamber with this and one other seat vacant.

CA-SD-10: This South Los Angeles-area seat became vacant when former Democratic Sen. Holly Mitchell was elected to the Los Angeles Board of Supervisors last year. Three Democrats and two Republicans (plus two non-major party candidates) are vying to replace Mitchell in this strongly Democratic seat that backed Joe Biden 84-12 in 2020, according to data from Los Angeles County.

The Democrats are Assemblymember Sydney Kamlager, Culver City Council Member Daniel Lee, and Apartment Association of Greater Los Angeles President Cheryl Turner, while businessman Joe Lisuzzo and business consultant Tiffani Jones are the Republicans. Community organizer Ernesto Huerta is representing the Peace and Freedom Party and Army veteran Renita Duncan is running without a party affiliation as an independent candidate.

Unlike other California elections, where the top two candidates advance to the next round even if one candidate wins a majority, special elections can be won in the first round if the leading candidate takes more than 50%. If no candidate does, though, a runoff will be held on May 4.

Democrats currently hold a 30-9 supermajority in this chamber, with just this seat vacant.

CT-SD-27: This seat located in Stamford became vacant when former Democratic Sen. Carlo Leon resigned to join the administration of Gov. Ned Lamont. The candidates for this race were selected by their parties, and Democrats nominated state Rep. Patricia Miller while Republicans tapped attorney Joshua Esses.

This is a safely blue district that Hillary Clinton won 66-30 in 2016. Democrats control this chamber 23-12, with just this seat vacant.

Mayors

Boston, MA Mayor: Republican Gov. Charlie Baker signed legislation on Friday that would avert a special election in the event that Mayor Marty Walsh resigns before March 5 to become U.S. secretary of labor. The regularly scheduled nonpartisan primary for a four-year term will still take place in September, and the two candidates with the most votes will compete in the November general election.