The abortion debate creates a ‘new era’ for state Supreme Court races in 2024

(Matt York/Associated Press)

The abortion debate creates a ‘new era’ for state Supreme Court races in 2024

Abortion, 2024 elections


Dec. 29, 2023

The 2024 elections will be dominated by the presidential primary and the battle for control of Congress, but a new set of races will be just as consequential.

Crucial battles over abortion, gerrymandering, voting rights and other issues will take center stage in next year’s elections, with the Supreme Court set to have 80 seats in 33 states.

The races have become some of the most contentious and expensive elections since the U.S. Supreme Court overturned Roe v. Wade, which eliminated the constitutional right to abortion. The decision shifted the abortion debate to the states, creating a new era for state Supreme Court elections, said Douglas Keith, a senior adviser at the Brennan Center for Justice’s judicial program, which tracks spending on judicial races.

We’ve seen attention on the Supreme Court elections like never before and money in these races like never before, Keith said.

Heated judicial contests in Wisconsin and Pennsylvania in 2023 delivered victories to Democrats and saw tens of millions of dollars in TV ads, offering a preview of 2024. They also prompted groups to consider investing in states they previously lacked had thought.


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

The ACLU is reviewing 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 a crucial backstop to protect access to abortion, said Brigitte Amiri, deputy director of the ACLU’s Reproductive Freedom Project. And the stakes are incredibly high in each of these cases in each of these states.

The ACLU was one of the top donors on behalf of Democrats in the state Supreme Court races in Wisconsin and Pennsylvania.

Another major player in the recent lawsuits has been the Republican State Leadership Committee, which has said its main focus is on redistricting, or drawing political district lines. The group called state supreme courts the last line of defense against far-left national groups, but did not say how much it plans to spend on next year’s races or which states it is targeting.

In Ohio, Democrats are expected to launch Supreme Court races on the heels 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 will be the final arbiter of the meaning of the new constitutional amendment that the people voted for and organized around, said Jessie Hill, a law professor at Case Western Reserve University and an advisor for Ohioans United for Reproductive Rights. That’s an enormous amount of power.

With three seats up for a vote and a current Republican majority of four

– Unpleasant

3. Democrats have an opportunity to flip the court’s majority, while Republicans will try to expand their control. Hill said the high-stakes election will serve as another test of the salience of the abortion issue in picking voters.

We saw an incredible number of voters come out to vote on that amendment and an incredible amount of investment was made in those campaigns, Hill added. I think there will be similar attention and investment in Ohio next year.

Redistricting is also likely to be a major focus of the state Supreme Court races, as the court will have reshuffled politics since issuing a series of rulings finding that Ohio’s congressional and legislative maps were unconstitutionally gerrymandered to to favor Republicans, said David Niven, a political science professor at the University of Cincinnati. He expects millions of dollars will be spent on these campaigns.

These races are often little talked about, but they are simply so consequential in very tangible, practical ways that they touch voters’ daily lives, he said.


Pending legislative and congressional redistricting cases could also come into play in North Carolina.

North Carolina Republicans want to expand their majority two years after the court wrested from Democratic control in the 2022 elections. That shift to a 5-2 Republican majority led in 2023 to dramatic reversals of rulings by the previous court, which had struck down a 2018 voter ID law, as well as district maps for the General Assembly and the congressional delegation. stands.

Groups on both sides are also expected to focus on Michigan, where Democrats have a 4-3 majority on the state Supreme Court. Candidates run for office without political affiliations listed on the ballot paper, although nominated by political parties.

Two incumbents, one Democrat and one Republican, will be elected in 2024. The court recently retained the former president


Trump on the state’s vote, rejecting a liberal group’s request to impeach him. Currently, a high-profile case is weighing against a Republican legislative maneuver that nullified a voter-backed minimum wage increase.


In Wisconsin, abortion played a dominant role in the 2023 court battle, with Democrats carrying the court to a 4-3 majority in a campaign that shattered previous national records for spending on Supreme Court elections.

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

Protasiewicz was the target of impeachment threats this year over comments she made on the campaign trail about redistricting, while Republicans argued she had pre-empted what was then an expected case in the state’s heavily gerrymandered legislative districts. Experts say the controversy is an example of how more money and attention have changed the dynamics of many races on the state Supreme Court to make it increasingly partisan.

Pennsylvania Democrats expanded their majority on the court after a race involving 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 role in states where party control is not at stake. That includes Arkansas, where the court is expected to retain its 4-3 conservative majority. Next year’s seats include the chief justice position, which has produced three sitting justices.

A fight over abortion could end up in court, with one group trying to put a measure on the ballot next year that would roll back a state ban on the procedure that took effect after Roe was overturned.

Abortion rights advocates are also not opting out

small chance

states like Texas and the all-Republican Supreme Court, which rejected the request of a pregnant woman whose fetus had a fatal condition to be exempt from the state’s strict abortion ban.

In Montana, Republicans have spent enormous sums trying 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. There is also a major climate change case pending in the court, which will make two of the seven seats available for elections.

Jeremiah Lynch, a former federal magistrate who is running for the open position of chief justice, has cast himself as a defender of the court’s independence and warned voters to expect a barrage of negative advertising. Cory Swanson, a district attorney who is also running for the position, announced his bid on a conservative talk show and recently vowed to bar all radicalized candidates for clerks in response to anti-Semitism on college campuses.

In West Virginia, where conservatives currently hold a 5-4 majority on the court and two seats are up for grabs, GOP Chair Elgine McArdle said Republicans want to focus more on judicial races than in recent years.

“One area that the state party has never really addressed is nonpartisan races, including the judicial races,” McArdle said. That won’t be the case this time.


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