On Nov. 4, Pennsylvania voters will have the opportunity to decide whether or not to retain three Pennsylvania Supreme Court justices in a race that has drawn increased national political attention.
The election of Democratic Justices Christine Donohue, David Wecht, and Kevin Dougherty comes as judicial retention elections across the country face increasing scrutiny. The Daily Pennsylvanian spoke with civil liberties organizations, legal experts, and scholars to understand the long-term implications of the race.
In the past, retention elections in Pennsylvania have not been seen as competitive or noteworthy races, according to University of Pennsylvania Carey Law School Senior Fellow David Rudovsky.
Rudovsky said in an interview with the DP that, historically, 99% of judges in Pennsylvania have been retained.
He emphasized, though, that judicial retention election races have taken on a new, “politicized” front in which opposing parties have encouraged voters to vote against judges, “often with a lot of false information about how they voted.”
So far, millions of dollars have been spent on campaigns and advertising. The Wisconsin State Supreme Court race drew over $100 million in spending.
“It reflects what is going on in this country in terms of political divisiveness and judges who now have to, interestingly, run on their record,” he said.
He also stated that the issues brought before the judges can contribute to the politicization of their retention.
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“The whole system has become very politicized in the last few years in terms of state Supreme Court justices because they rule on election issues, they rule on criminal justice issues, they rule on all the kinds of hot button points that split this country,” Rudovsky said.
Penn Carey Law David Berger Professor for the Administration of Justice Kermit Roosevelt also told the DP that the “partisan composition” of the Court is “at stake” — and could impact future rulings on various issues.
“If you’re concerned about abortion rights, there’s no federal constitutional right to abortion anymore,” Roosevelt said. “But under Pennsylvania’s constitution, as interpreted by the Pennsylvania Supreme Court, there is, [but] that could change if you get a Republican majority.”
In addition to abortion questions, the court has the final say on many consequential issues, ranging from election administration to minority and workers’ rights.
“You’ve got the whole question of mail-in ballots and when they can be counted and received when there’s a slight error in which you wrote down,” Rudovsky said. “You’ve got all those issues percolating. Certainly, the issues of abortion, rights of minorities, and so on and so forth come before the court. A lot of what they decide is on those issues.”
Election administration questions could prove to be crucial in upcoming national races, Roosevelt explained, adding that the court has the final say in how those elections are run.
“States conduct presidential elections, and there have been plenty of disputes in Pennsylvania about how those elections can be run and which votes are valid, and the Pennsylvania Supreme Court ends up often deciding those questions,” he said. “If you’re concerned about how the Pennsylvania election is going to be run, the composition of the Pennsylvania Supreme Court is important to that, too.”
Danitra Sherman, the deputy advocacy and policy director of the American Civil Liberties Union of Pennsylvania, similarly underscored the significance of the state judiciary, telling the DP that Pennsylvania rulings can impact subsequent rulings nationwide.
“Our state court … is worried about issues that are happening here within the state, but I think it’s also important to … talk about policies and setting precedent,” Sherman said. “It also can influence what is happening on a greater scale, whether it’s at the national level or in other states when it comes to the various issues.”
Both Sherman and Roosevelt discussed the importance of voting in retention elections and encouraged the Penn community to vote.
“This election could have lots of consequences that will affect you, affect everyone else, and affect the nation,” Roosevelt said. “If you care about any of those things, voting is important.”
Sherman contended that judges’ 10-year terms make retention elections particularly significant. Within that time frame, she said, the judges will eventually rule on an issue that impacts every individual.
“While folks are living their best life or worried about school or not feeling like there is much to worry about now, who is to say that — come five or 10 years from now — there isn’t going to be an issue that you are impacted from,” Sherman said.
Rudovsky echoed the importance of voting, emphasizing that the judicial elections deserve the same attention as state legislative and federal elections.
“In the same way they’re concerned about who the governor is and who their representatives are, and whether Republicans or Democrats or whatever, [voters] should understand that the judges and the justices, particularly on the Supreme Court, have an impact on those issues as well,” Rudovsky said.
