Dark blue states have more than half of the court elected in a $1 million race; light blue states have at least one justice elected in a $1 million race; dark gray states do not use elections to select judges. Source: Brennan Center for Justice
In its latest report on state supreme court elections, the Brennan Center for Justice identified several disturbing new developments, including record-shattering spending by interest groups, a parallel rise in "dark money," and more million-dollar supreme court races than ever before.
The Brennan Center has been tracking and analyzing state supreme court elections in the 28 states that elect supreme court justices since 2000. The new report examines the 2015-16 supreme court election cycle, and for the first time, includes an in-depth analysis of donor transparency among interest groups.
Nationwide, overall spending totaled an estimated $69.3 million, including candidate fundraising and outside spending by interest groups and political parties — the second highest spending level (adjusted for inflation) since 2000.
Outside spending by interest groups reached never-before-seen levels in this period, as political action committees, social welfare organizations, and other non-party groups spent a record $27.8 million, making up an unprecedented 40 percent of overall supreme court election spending (as compared with only 29 percent in 2013-14).
The increase in outside spending has resulted in what researchers call "a stunning lack of transparency," as only 18 percent of interest groups' outside expenditures could be easily traced to transparent donors. For the remaining spending, donors were undisclosed (known as "dark money") or hidden behind donations from one group to another, making it difficult or impossible to identify the original funding source ("gray money").
Such secrecy risks leaving voters uninformed about who is seeking to shape state high courts, and leaves litigants (and often even judges) without the tools to identify potential conflicts of interest.
The Brennan Center reports that there were more million-dollar supreme court races than ever before: 27 justices were elected in races in which $1 million or more was spent, compared with the previous high of 19 justices in 2007-08.
A greater number of justices elected in high-dollar races means more potential conflicts of interest and heightened pressure on all judges to curry favor with wealthy interests who can subsidize the increasingly high cost of a future election.
In 1999, only seven states had at least one sitting justice who had been involved in a $1 million race at some point during his or her tenure. By the start of 2017, that number had risen to 20 states, and fully a third of all elected judges on the bench had run in at least one $1 million-plus election. Researchers conclude that, nationwide, "politicized state supreme court elections are no longer the exception, but the rule."
Researchers also examined campaign ads in judicial elections, and found not only unprecedented levels of spending on television ads but also that more ads were negative (35 percent) than in other recent election cycles (21 percent in 2013-14). The negative ads were overwhelmingly paid for by outside groups, while only 15 percent of candidates' own ads had negative content.
More than half of all negative television ads during the 2015-16 cycle criticized judges for their judicial rulings, often in misleading and provocative ways. An ad in Washington State's 2016 supreme court election, for example, criticized a judge seeking reelection as "enabl[ing] child predators" and "letting dangerous people do dangerous things."
The report warns that ads targeting judicial decisions threaten judicial independence, citing a growing body of research that suggests that fears about election attacks can impact how judges rule in cases, particularly on criminal justice issues.