These State Judicial Races Will Determine The Future Of Abortion Rights

Hotly contested supreme court elections in Illinois, Michigan, Montana, North Carolina and Ohio are likely to determine the future of abortion rights, voting rights and gerrymandered district maps in those states.

In each court, one political party or ideological bloc holds a one-vote majority on the most pressing issues, including abortion and redistricting. Any change in their makeup in the midterms could lead to the protection or elimination of abortion rights in these states.

Meanwhile, the fate of legislative redistricting is also at stake in North Carolina and Ohio, as courts are fighting with Republican-run legislatures over highly partisan gerrymanders.

In Illinois, Michigan and North Carolina, judges aligned with the Democratic Party hold a 4-3 majority over Republican Party-aligned judges. GOP-aligned judges hold a 4-3 majority over Democrats in Ohio, but one retiring judge has ruled with Democrats on gerrymandering decisions. And in Montana, the court’s 4-3 majority that upheld abortion rights in a 2019 case and protected voting rights in recent years could be flipped.

These judicial majorities are more important than ever since the United States Supreme Court began devolving constitutional issues from federal courts to state courts.

In June, the court’s conservative supermajority ended federal abortion protections when it overturned Roe v. Wade in the Dobbs v. Jackson Women’s Health Organization decision. By revoking the recognition of a federal right to an abortion, the issue of abortion rights would be “returned to the people and their elected representatives,” Justice Samuel Alito wrote.

The decision in Dobbs followed a 2019 decision by the court’s conservatives declaring the federal courts off-limits for constitutional claims of partisan gerrymandering. Instead of federal courts, “​​state statutes and state constitutions can provide standards and guidance for state courts to apply” to resolve partisan gerrymandering complaints, according to Chief Justice John Roberts.

The decisions made state courts the final arbiters of the constitutionality of abortion bans and legislative redistricting. They have already stepped into that role by overseeing divisive redistricting fights and taking on cases examining the role of their state constitutions in granting abortion rights.

Abortions bans in 10 states, including Michigan, Montana and Ohio, are currently blocked by state court orders as they review the constitutionality of the bans.

Meanwhile, legislative district maps in North Carolina and Ohio are operating on a temporary basis after courts rejected maps drawn by each state’s Republican-run legislature.

These developments have caused Democratic Party groups and their allies to spend more money than in previous years to maintain or establish majorities protecting abortion rights.

The Democratic Legislative Campaign Committee, which works to elect Democrats to state legislatures, is spending money on state judicial races for the first time in Michigan, North Carolina and Ohio.

The National Democratic Redistricting Committee, a group focused on legislative and judicial races in states, has invested just over $1 million in the judicial races in Michigan, North Carolina and Ohio by funding state-level allies, including state Democratic Party organizations, and through the group’s own volunteers.

As part of its record $50 million election campaign this cycle, Planned Parenthood is spending millions of dollars through its state affiliates to help candidates in Illinois, Michigan, Montana, North Carolina and Ohio.

“We’re super clear that the path to restore, protect and expand abortion access and ultimately abortion equity runs through the states,” said Sarah Standiford, national campaign director at Planned Parenthood Action Fund. “And I think that’s now more clear to voters than ever before.”

The ACLU, which has long defended abortion rights, is also investing in the judicial elections in Illinois, Kansas, Michigan, Montana, North Carolina and Ohio through its state-level affiliates.

“Folks are seeing this in a new light since the Dobbs decision leaked and came out in late June,” said J.J. Straight, deputy director of the Liberty Division at the ACLU. “The talking points we heard then is that this should go to the states — and that is where it is now.”

With three state supreme court seats up for grabs, Ohio could see the biggest swing in terms of partisan control and policy impact.

The court is currently embroiled in a fight with the GOP-run state legislature and GOP Gov. Mike DeWine over the legislative maps adopted following the 2020 census. The maps were the first drawn since Ohioans voted in favor of a constitutional amendment aimed at limiting partisan gerrymandering. Despite that amendment, Republicans drew a map heavily biased in their favor.

The state supreme court ruled repeatedly, by a 4-3 vote each time, that the GOP-drawn maps violated the constitution’s anti-gerrymandering language. Chief Justice Maureen O’Connor, a Republican, sided with the court’s three Democrats in each instance. But O’Connor is retiring and the seat could flip to a Republican who would likely vote differently.

The race for the chief justice seat is between current Justices Jennifer Brunner, a Democrat, and Sharon Kennedy, a Republican who voted to uphold the gerrymandered maps.

Two Republican-held seats are also up. Justice Pat Fischer, a Republican, faces Democratic appellate Judge Terri Jamison and Justice Pat DeWine, a Republican and the son of the governor who refused to recuse himself from judging his father’s chosen legislative map, is being challenged by Democrat Marilyn Zayas, who is also an appeals court judge.

Since Ohio’s current district maps will only be in effect through the 2024 election, the question of whether the state’s Republicans can continue to gerrymander legislative maps in their favor will certainly continue to come before the court.

Additionally, the court will certainly rule on the constitutionality of Ohio’s ban on abortions after the sixth week of pregnancy. A lower court temporarily suspended the state’s ban as it found it likely that the Ohio Constitution protects the right to an abortion. The case is almost certain to wind up before the state supreme court in the future.

From a governor’s race to a ballot initiative, practically every election in Michigan this November is about abortion. That is also true of the two state supreme court seats up for grabs in races that are ostensibly nonpartisan, though candidates are chosen by political parties.

The Michigan Supreme Court is currently split with four Democrat-backed and three Republican-backed justices. Democrats flipped control of the court in 2020 after picking up two seats. They hope to not only defend their majority but increase it further.

Justice Richard Bernstein, who is backed by Democrats, and Republican-backed Justice Brian Zahra are the two incumbents running for reelection in 2022. Challenging them are state Rep. Kyra Harris Bolden, who is backed by Democrats, and appellate lawyer Paul Hudson, who is backed by Republicans. All of the candidates run on the same ballot with the top two vote-getters winning.

Gov. Gretchen Whitmer, a Democrat, and abortion rights advocacy groups are behind two separate lawsuits asking the court to invalidate the state’s 1931 abortion ban law. That law is temporarily suspended as the state courts review its constitutionality.

This may all become moot if Michigan voters approve a ballot initiative that would enshrine abortion rights into the state constitution. All polls show that the initiative is headed toward passage. If Republicans win both seats and flip control, however, they could potentially work to limit the initiative or overturn it altogether.

In addition to the impact on cases before them, the Michigan judicial elections also provide the prospect of electing the first Black woman, Bolden, to the state’s top court.

Aside from Ohio, few states can claim the kind of divisive and partisan recent battles between a state judiciary and state legislature that North Carolina can.

Most recently, the North Carolina Supreme Court, which is split with four Democrats and three Republicans, ruled that the Republican-run state legislature’s congressional district map was an illegal partisan gerrymander and adopted a more balanced map in February. The decision infuriated Republicans, who promised to spend more money than ever before in their bid to win control of the court.

Those groups are now spending millions to boost the bid of GOP law professor Trey Allen’s campaign to defeat incumbent Democratic Justice Sam Ervin IV and, in the race for an open seat on the court, Republican Richard Dietz over Democrat Lucy Inman, both of whom are appellate court judges. Republicans only need to win one of two seats to gain a majority on the court.

Republicans in the state legislature have already filed a lawsuit in state courts to reverse the supreme court’s prior decision on their legislative district maps. If Republicans flip the court, they could rule in favor of gerrymandered maps that give a heavy advantage to their own party.

But that’s not all the court could change if it flips. The Democratic majority on the court has issued numerous decisions in recent years on criminal justice and voting rights that would be in jeopardy if Democrats lose in November.

The Democratic-majority court has limited prison sentences for minors, made it harder to purge jury pools of Black people, and freed some death row prisoners from a law that limited their ability to challenge their convictions due to racial bias.

On voting rights, the court prevented Republicans from seizing control of running elections in the state and imposing an onerous voter identification requirement.

The court’s decisions on voting rights and partisan gerrymandering could all become moot if the U.S. Supreme Court agrees to affirm the independent state legislature theory that North Carolina Republicans are asking them to adopt in the case of Moore v. Harper. If the high court fully sides with the state GOP, the courts would no longer be able to rule on the constitutionality of legislative district maps or state election laws.

And then there is abortion. North Carolina currently allows abortion up to 20 weeks of pregnancy, but if Republicans win a legislative supermajority they could pass a harsher ban over Democratic Gov. Roy Cooper’s veto and a GOP-controlled court could uphold it.

In the two ostensibly nonpartisan races for the Montana Supreme Court, abortion and election law also take precedence.

In 2019, the state’s highest court upheld its 1999 precedent protecting abortion rights in the state by a 4-3 vote. All of the justices who ruled in that decision are still on the bench today, but two are up for reelection in November.

Justice Ingrid Gayle Gustafson, who is backed by Democrats, faces GOP-backed former state lawmaker James Brown. Meanwhile, Justice James Rice, backed by Republicans, faces Billings-based attorney Bill D’Alton, who is backed by Democrats. Republicans would need to win both races to flip the majority on the court.

Montana has long bucked national trends as a rare state where voters still split their tickets. Despite voting for every Republican presidential candidate going back to 1996, the state elected Democratic governors to serve from 2005 to 2020.

But the state swung hard to the right in the 2020 election with Republicans taking control of every statewide office by wide margins. They have since tried to solidify their victories by passing voting restrictions aimed at making it more difficult for Democratic Party constituencies like students and Native Americans to vote.

Election law is another area where the judicial elections will matter a lot. In September, the court ruled that voting restrictions, including an end to same-day voter registration and more stringent voter identification rules, passed by the GOP in 2021 were unconstitutional.

If Republicans win a majority on the court, the legislature would likely repass these restrictions and see them upheld.

Republicans would take control of the Illinois Supreme Court if they win both of the seats up for grabs in November.

Republican incumbent Justice Michael Burke is being challenged by Democratic appellate Judge Mary O’Brien. In an open-seat race, Mark Curran, the Republican former Lake County sheriff, is running against Democratic circuit court Judge Elizabeth Rochford.

Both judicial districts were redrawn following the 2020 census to be more favorable to Republicans.

The stakes may not be as high in these races as in the other states where abortion rights could go away with the flip of the court. That’s because the solidly Democratic state legislature passed — and Democratic Gov. J.B. Pritzker signed — legal protections for abortion rights prior to the Supreme Court’s overturning of Roe v. Wade.

That doesn’t mean control of the court doesn’t matter. Anti-abortion litigants continue to challenge the state’s abortion protections and other reproductive rights laws in state courts. And there are sure to be new issues that arise as Illinois stakes its place as a safe haven for abortion-seeking travelers coming from states where the procedure is now banned.

Both Burke and Curran have attended events hosted by the anti-abortion group Right to Life in the past. Curran also celebrated after seeing the leak of the Supreme Court’s Dobbs decision in May.

“I never thought I would see this day,” Curran posted on Facebook. “This is why we voted for Trump.”

Planned Parenthood Illinois Action is working with other local groups to mobilize opposition to the two GOP candidates. They have produced and run television ads, sent direct mail, and are door-knocking to make sure voters know about where the candidates stand in these lesser-known races.

“We cannot take things for granted,” said Brigid Leahy, vice president of Planned Parenthood Illinois Action. “All the progress that’s been made, that could go away if we’re not careful.”