In 2021, Ohio lawmakers decided to put partisan labels on state Supreme Court and appellate court races. Over the past two cycles, Democratic Supreme Court nominees have performed surprisingly well despite Republican dominance. In 2018, Democrats won both seats, and in 2020, the party won one more.
After these races, Republicans still controlled the court but had just a single majority. The state’s Republican-majority legislators then turned judicial races into partisan contests. Republicans have done much better since then.
In 2022, Republicans have selected all three races on the ballot. This year they did it again.
State Sen. Bill DeMora, D-Columbia, wants to return to an earlier system in which judicial races were a nonpartisan affair. Given the GOP’s robust control over every lever of state government and its recent electoral success, it’s unlikely he’ll win many supporters, something DeMora himself alluded to in his testimony.
“Thank you for allowing me to testify on Senate Bill 201,” DeMora told the committee, “the third bill today that I assume has no chance of getting anything more than a cursory three minutes in the spotlight.”
The DeMora case and Republican opposition
DeMora argued that the reason this year’s Ohio Supreme Court elections were the most high-priced in state history is because they were reduced to “proxy fights between Democrats and Republicans.”
State Supreme Court races attracted hundreds of thousands of dollars from out-of-state donors who supported candidates on both sides of the aisle. DeMora argued that these donations were intended to safeguard partisan profits, not to support an individual judge.
“It used to be that our judicial races were a competition between individuals who had different opinions on how to interpret the law,” he said, “and now it’s just a big money chat, just like any other partisan race.”
DeMora added that the inclusion of partisan IDs did more than just change the mood on the high courts. It also discourages participation in judicial races one step below.
“Two weeks ago, 25 appellate court positions were also selected,” DeMora said. “Only four of these races were run in the entire state.”
Despite DeMora’s complaints, state Sen. Rob McColley, R-Napoleon, argued that the change led to greater participation in these judicial races. He explained that before the inclusion of partisan labels, many voters simply did not vote in Supreme Court races.
“In 2018, the top voter in Supreme Court races would have been 79%,” he said. “In 2022, after this change, that number increased to almost 98% of voters who cast ballots at the top of the ballot in Supreme Court races.”
DeMora persisted, arguing that the enhance in turnout had at least as much to do with ballot placement (the partisan labeling law also put judicial races at the top of the ballot) as with party designation.
McColley added this in a 2014 study by the Bliss Institute63% of respondents indicated lack of information about the candidate as the main reason for not voting in the judicial elections.
“When they dug deeper, the most common answer when asked what information you wanted was party affiliation,” McColley said. “That’s why I think we provided more information to voters, and as a result, millions more cast their ballots in this election.”
The problem was that McColley’s memories were wrong. According to voters, the most significant information was about the candidate’s professional experience and his views on crime. Of the six types of information pollsters asked about, partisan affiliation came in last.
Sen. Theresa Gavarone, R-Bowling Green, argued that the way to eliminate bias is to make judges independent, which to her knowledge no one has done.
“We have a partisan primary, and then to turn around and pretend we’re not partisan at all seems disingenuous,” she said.
“It disrupts transparency and this is information voters want to know,” Gavarone continued. “Are you proposing that we go back and suddenly pretend we are not partisan when it comes time for a general election, when people already have a choice and can now run as independents?”
DeMora has said he would welcome abolishing partisan primaries and party designations in general elections, not to mention even broader changes to reduce partisanship.
“I wouldn’t mind if all judges were not racially biased,” he said. “Let them be appointed for a certain number of terms, and like other states, if they do a good job, they will be reappointed by an entity, whether it be a judicial council, other judges, or a nonpartisan or non-judicial council, or a governor.
How the states stack up
Even if DeMora’s proposal is unlikely to catch on, he’s not wrong that Ohio is an exception. According to A Brennan Center Review of State Policyonly seven of them elect state Supreme Court justices and appellate court judges in partisan elections. Twice as many Supreme Court justices serve on a nonpartisan basis, but most states employ a nomination process.
Although states can be divided into several broad categories, their processes offer a true “laboratory of democracy” – a a rat’s nest of subtle differences in selection, confirmation and retention this means almost as many different approaches as there are countries.
Among jurisdictions that rely on appointments, most give the job to the governor, but Virginia and South Carolina left the decision to state lawmakers. In states where the governor has this honor, they can’t just pick whoever they want. Most states appoint a nominating commission to shortlist candidates, and several require that the governor’s election also be subject to a confirmation vote in the state legislature.
As for additional conditions, most states require sitting judges to run if they want to keep their seats, but partisan elections are uncommon – only five states employ them. The largest share is in the 18 states that hold unopposed retention elections. Similar to Ohio’s referendum, in this model the incumbent judge appears on the ballot and voters decide whether or not to retain him. In another 13 states, elections are nonpartisan.
Researchers have found that putting party labels on the ballot is not just a matter of partisan advantage. In 2011 studylaw professors Michael Kang and Joanna Shepherd showed that elected judges were more likely to rule in favor of a particular business interest as that industry’s contribution to their campaigns increased. But importantly, when they untangled their data to compare partisan elections with nonpartisan elections, they found a clear difference.
“Campaign contributions from business groups are associated at a statistically significant level with court decisions affecting business interests only in party electionsbut not non-partisan,” they wrote.
They argued that the role of parties in judicial elections is “crucial” to understanding the relationship between contributions and decisions.
“In other words,” they wrote, “what matters is not just the amount of campaign money in question but the level of party involvement in judicial elections.”
Follow the OCJ reporter Nick Evans on Twitter.
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