This article is part of a yearlong reporting project focused on redistricting and gerrymandering in Pennsylvania. This is possible with the support of PA spotlight members, including Tribune-Review / TribLIVE and Votebeat, a project focused on electoral integrity and access to voting.
HARRISBURG – A proposal under the Pennsylvania legislature, led by the Republican Party, could soon make the state an extreme case in the country, allowing lawmakers to exercise more control over the state Supreme Court and other appellate courts.
The measure, which may reach voters as early as May, provides for the abolition of state elections for appellate judges and their replacement by disputes in party districts determined by lawmakers and remade every 10 years.
An analysis of 50 states by Spotlight PA and Votebeat, as well as interviews with judicial and academic experts, found that only two other states – Illinois and Louisiana – employ this system, which has increased party campaign struggles and has given special interests and groups of dark money plus a foothold to affect the outcome of the races.
Experts said the change in Pennsylvania could jeopardize public confidence in judges, because they would not respond to a state constituency, but rather to smaller, more localized districts that are more politically homogeneous. This, in turn, can affect the way they govern, undermining the independence of the judiciary and making it appear more political.
“The underlying assumption [of this proposal] is that judicial decisions, judgments and judiciary conduct must reflect some kind of party or ideological majority, ”said Kent Redfield, professor of political science at the University of Illinois Springfield. “It is the antithesis of how judges should rule.”
The proposal – defended by Deputy Russ Diamond of R-Lebanon County, a far-right member of the state legislature – is more like the Illinois system. With its party districts, the state has seen millions of dollars in dark money injected into contentious – even fraudulent – elections as special interests vie for control of the upper court.
“All of this creates circumstances under which you can introduce prejudice or create a situation where you look like prejudice,” said Redfield. “This is not good for the health of democratic institutions.”
Diamond and other Republicans say that the election of district appeals judges, rather than statewide party disputes – as is currently the case – will ensure that the Supreme Court, the High Court and the Commonwealth Court reflect the diverse geography of the state and, therefore, its diverse judicial philosophies.
Currently, the majority of the appellate court’s 31 judges come from the state’s two largest and most democratic urban centers, Allegheny County and Philadelphia.
“We have drafted legislation to solve Pennsylvania’s problems and I don’t know if any other state suffers from this specific problem,” Diamond said in an email.
Critics – including a wide range of legal organizations and good government groups – see the move as a ploy for Republicans to gain more control over the Supreme Court, where most Democrats recently ruled against the Republican Party in electoral and pandemic litigation.
According to Diamond’s proposal, which he has presented at all legislative sessions since 2015, lawmakers would redesign judicial districts every 10 years, as they do for electoral districts. Judicial maps would have to adhere to the same redistricting criteria outlined in the Pennsylvania Constitution, which requires lawmakers to design districts that are roughly equal in population, compact and contiguous, as well as avoid dividing locations “unless absolutely necessary” .
Despite these demands, Pennsylvania lawmakers – who would be in charge of designing the three maps of the court of appeal – produced one of the country’s most messy congressional maps, which the state Supreme Court rejected in 2018.
Since judicial districts would be established by law, the maps would require approval from the governor, according to Diamond.
“I imagine that the courts will also enter into negotiations to establish this plan, which will bring together all three government powers at a time when the community desperately needs this cooperation,” he said.
The way to select judges has been highly debated across the country for decades, with states taking different approaches to nominating judges through merit selection or electing them through party or non-partisan disputes.
Twenty-eight states choose their Supreme Court judges through some combination of a committee that recommends candidates based on merit to the governor or legislature for nomination, at least for an initial bench term, according to the Brennan Justice Center.
Six states, including Pennsylvania, hold party elections and 15 hold non-party elections, with one state – New Mexico – requiring judges to run for party elections after being nominated by the governor.
Four states – Mississippi, Kentucky, Louisiana and Illinois – elect Supreme Court judges by district. The two states that most closely resemble the Diamond proposal, Illinois and Louisiana, hold party district elections, but the lines have remained untouched for decades.
In Illinois, three of the seven Supreme Court judges are elected in Cook County – where Chicago’s heavily democratic county seat is located – and the rest are elected in districts that are supposed to be equal in population. But these districts have not been redesigned since 1963, resulting in unequal populations as residents moved.
After 10 years on the bench, Illinois Supreme Court judges are subject to undisputed withholding elections in their districts for additional 10-year terms, as Diamond is proposing for Pennsylvania.
In 2004, two judicial candidates spent at least $ 8.9 million on their campaigns in Illinois’ Southern Swing district. Lawsuits later revealed that the winning candidate’s campaign, Lloyd Karmeier, was secretly financed in part by State Farm in an attempt to secure a billion-dollar verdict against the company’s revocation.
In 2020, Republicans spent millions of dollars to prevent the Illinois Supreme Court judge Thomas Kilbride, a Democrat and the decisive vote in court, from being withheld for another 10 years. Kilbride was the first state judge to lose a retention bid since the practice was first adopted in 1964, according to media reports.
In Louisiana, Supreme Court justices are elected for 10-year staggered terms in seven districts that have not been redesigned since 2000. All candidates compete in the same primaries, and if no candidate gets more than 50% of the vote, the first two voters advance to the general election.
New England law professor Jordan Singer said that party elections in small geographic districts are an invitation to more campaign “antics” than to a state dispute, because special interests can reach their audiences more restrictively and there is less media markets to consider.
“It really opens the door for special interests and dark money to say, ‘Look, we can get a lot of return on our money by pouring money into this small region of the state, electing our candidate, and then that candidate, hopefully, promoting our interests’”, he said.
This is not to say that excessive spending does not occur in state party disputes. The biggest expense in the Illinois Supreme Court dispute in 2004 was the 2015 Pennsylvania dispute, where candidates running for three seats spent a total of $ 15.9 million, according to the Brennan Center.
Chris Bonneau, professor of political science at the University of Pittsburgh, said that candidates win by higher margins in the judicial districts and that there are fewer disputes because the districts are more politically homogeneous.
Redfield said that district elections would likely produce few candidates that reflect the party or ideological “milieu”, and more those who win by running to the far left or right of their base, especially if the districts are not competitive.
He said that the introduction of ideological advantages, such as redistricting, in judicial elections makes people perceive judges as party actors who are indebted to constituents, rather than impartial judges, impenetrable to outside influences.
“Redistricting becomes a way of ensuring that districts do not unfairly represent people’s interests, implicitly accepting the premise that judges represent people, not the law and the constitution,” he said.
The Pennsylvania Constitution requires amendments to pass the legislature twice in consecutive sessions before being put to the vote. After being approved by the General Assembly last year, Diamond’s measure was approved by a House committee earlier this month, with two Republicans supporting Democrats in voting against.
If both houses pass the measure by February 17, the amendment will appear on the ballot for the May 18 primary election. His next step is a vote in the House floor, although Diamond said on Tuesday that he does not know when the leadership plans to bring the measure to a vote. A spokesman for the majority leader in the House, Kerry Benninghoff, of R-Center County, did not respond to a request for comment.
Jane Cutler Greenspan, a retired Philadelphia Democratic Supreme Court judge appointed by Governor Ed Rendell, said she thought of rural counties that were not like her base when she made decisions that impacted the entire state.
Greenspan, who opposes Diamond’s constitutional amendment, said it would not necessarily be the case if it had been elected by a district.
“If I was in debt to the constituency in Philadelphia, this is where I would vote,” she said. “You will have judges who do not consider other districts.”
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