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Money is pouring into state judicial campaigns this year

SCOTT SIMON, HOST:

Congressional and gubernatorial campaigns get a lot of attention during midterm elections, and of course, they raise a lot of money. But this year, state judicial races have also attracted a lot of donations. Why? Douglas Keith is an attorney at the Brennan Center for Justice, and he joins us now.

Thanks so much for being with us.

DOUGLAS KEITH: Thanks for having me.

SIMON: Almost $100 million, we're told, was funneled into state Supreme Court campaigns in 2020. Any reason to think that's lower this year and what's attracting interest?

KEITH: Well, this year, the spotlight on state Supreme Courts is brighter than it has ever been. And that's in big part the result of U.S. Supreme Court decisions in which the court has essentially punted big questions to the state courts. So on things from abortion to redistricting, questions that folks may be used to being decided by the U.S. Supreme Court, it'll be state Supreme Courts that are asked whether state law or the state constitution protects particular rights or democratic institutions.

SIMON: Illinois, North Carolina and Ohio - a lot of spending there.

KEITH: The one thing we can look to predict whether a state Supreme Court election is going to attract a lot of money and attention is whether the partisan or ideological majority on that court is up for grabs. And those three states, the majority will be decided by this election. And in each of those three states, there have been high-profile rulings recently that are attracting a lot of attention and a lot of interest in who is going to control a majority on those courts.

SIMON: Mr. Keith, is this necessarily bad? I mean, isn't this just democracy and a reflection of public interest?

KEITH: So judicial elections were adopted, you know, a century or more ago in some states as a reform tactic. The idea was judges were being picked behind closed doors and smoke-filled rooms, and elections were supposed to add transparency to the process, bring them out into the sunshine. But the way this money is coming in to judicial elections today does nothing for transparency. A lot of the money in some states, more than half, more than 75% of all the money that will come in, comes from super PACs and other opaque groups that don't tell voters where their money's coming from. And so voters can't assess who's trying to sway their votes or who's trying to influence who sits on their courts. Voters don't know when their judges have major conflicts of interest.

SIMON: Well, you mentioned major conflicts of interest. Could that be a company that can anticipate having business before the court?

KEITH: Absolutely. One of the big groups of spenders that we see in judicial elections is businesses that know how important these courts are to their bottom lines. And so they try and influence who sits on the courts so those courts will be more friendly to them when they or their peers come before the court. Now, these groups are also very good at hiding their identity from voters. And so even if they're getting involved in judicial elections, to that extent, voters may never know.

SIMON: As you note, an elective judiciary came into being as a reform idea. Is what's beginning to happen, does that renew an argument for an appointive judiciary?

KEITH: There are absolutely better systems of picking judges than the way modern judicial elections are operating. There are states that use commissions with broad, diverse sets of voices from across the state to vet and recommend judges for appointment by governors. There's also the option for states, even if they keep elections, to only elect judges to single lengthy terms. So once they're on the bench, they're no longer subject to these political pressures that research shows can actually influence their decision-making.

SIMON: I mean, I remember going in to vote in Illinois, and there was, you know, a huge list of judges to vote for or against. And, forgive me, the only way I would know their names, and I was a crime reporter, is if I'd been in their courtroom or if they'd been indicted for something themselves.

KEITH: This is another important feature of judicial elections for everyone to be aware of. While these elections are held, often the public has very, very little information about who these judges are. And that's part of the spending story, too. Lots of these groups, they will spend millions in a judicial election race or even, you know, half a million dollars, which it can look small when you compare it to a Senate race that's happening at the same time. But because voters know so little, because there's so little news about these races, there's a pretty small price tag to have a pretty big influence on these elections. And these sophisticated political groups, they know that.

SIMON: Douglas Keith of the Brennan Center for Justice, thanks so much.

KEITH: Thanks so much for having me. Transcript provided by NPR, Copyright NPR.

Scott Simon is one of America's most admired writers and broadcasters. He is the host of Weekend Edition Saturday and is one of the hosts of NPR's morning news podcast Up First. He has reported from all fifty states, five continents, and ten wars, from El Salvador to Sarajevo to Afghanistan and Iraq. His books have chronicled character and characters, in war and peace, sports and art, tragedy and comedy.
Tamara Keith has been a White House correspondent for NPR since 2014 and co-hosts the NPR Politics Podcast, the top political news podcast in America. Keith has chronicled the Trump administration from day one, putting this unorthodox presidency in context for NPR listeners, from early morning tweets to executive orders and investigations. She covered the final two years of the Obama presidency, and during the 2016 presidential campaign she was assigned to cover Hillary Clinton. In 2018, Keith was elected to serve on the board of the White House Correspondents' Association.