THU JUL 30, 2015 AT 08:29 AM PDT
When we think of important elections in America, typically the list starts with the president, then Congress, governors, etc., while judicial elections are a lower priority for voters. Foreign election observers might even be shocked we elect judges at all, a system that Europeans and our own federal government have largely eschewed. So it may come as a surprise to learn just how important this November’s three state Supreme Court races are in Pennsylvania.These elections are critical not just because Democrats might retake a majority on the high court for the first time in years: They will determine how easy it will be for either party to win the legislature during the next decade. Whichever party controls the court appoints a tie-breaking member to the redistricting commission and most recently, that has been a Republican who voted for partisan gerrymanders. In 2012, that system led to Republicans winning the legislature despite losing the popular vote because they had drawn the maps. The new maps were used for the first time during the 2014 red wave, and Republicans won their largest majorities in generations even though Democrats decisively unseated unpopular GOP Gov. Tom Corbett.
Democratic Gov. Tom Wolf now faces many obstacles from legislative Republicans and this will continue for his entire time in office barring an unforeseeable Democratic wave. Even though President Obama won the Keystone State 52 to 47, Mitt Romney carried 111 of the 203 state House seats and 27 of the 50 state Senate districts. As long as a Republican state Supreme Court keeps the tie-breaking vote for redistricting, Team Red will keep doing everything they can to preserve their majorities in this light blue state.
Our political system is broken when low-turnout, partisan, judicial elections will determine not only the composition of the state’s highest court, but which of the two major parties gets to rig the state legislative election process for 10 years. If we care about advancing progressive policies in Pennsylvania, a state without any ballot initiative process, we absolutely must regain both chambers of the legislature. That task will be tremendously easier under Democratic-drawn maps than Republican-drawn ones, which is why the first step is to retake the state Supreme Court.
Head below the fold for more details about the six candidates running this year, the impact of a potential ballot referendum on judicial retirement age, and how Philadelphia’s mayoral race might affect the court races.
Pennsylvania has a hybrid method for selecting judges. The seven state Supreme Court justices serve 10-year terms and the initial election for a vacancy or interim appointee is conducted on partisan ballot. For re-election, justices simply face a yes or no retention vote without an opponent and these are typically much friendlier to incumbents nationally.
The mandatory retirement age is 70 so we frequently see vacancies arise, with the governor appointing a replacement who is subject to state Senate confirmation. However, legislators in the last session voted to send a referendum to the 2015 ballot that would raise the mandatory retirement age to 75. After being approved by the House in a broad, bipartisan vote this session, all it needs is Senate approval once again and a yes vote from the public, which would seem disposed to support it.
Currently there are three Republicans and two Democrats, with each party having one vacancy. With a Republican-held state Senate, these vacancies have lingered as the party doesn’t want Wolf to appoint a Democratic majority. A deal had been struck to name one Republican and one Democrat to preserve the Republican majority, but it collapsed when the Republican withdrew due to controversy. Two more Republicans hit the mandatory retirement age this decade and it seems likely that the state Senate will likewise try to prevent Wolf from temporarily appointing any Democratic majority.Therefore, 2015 is critical because if Democrats sweep all three seats, they will likely hold the court in 2021 in time for redistricting. Since Democratic Justice Debra Todd is 57, she only faces a retention election in 2017. If our three candidates win this year, Republicans would be hard-pressed to defeat Todd, since only a single Supreme Court Justice in state history has ever lost a retention vote. That was in 2005, when an unpopular state government salary increase led to voters taking out their frustration on Democratic Justice Russell Nigro, who still only lost by two points.
Even if Democrats win just two seats out of three this year, they will win a majority for the time being. If the retirement age is moved to 75, this would likely give Democrats control of the court for the 2022 round of redistricting, barring a death or resignation. Team Blue would only face a single retention election for Todd’s in 2017, since Justice Max Baer’s current term began in 2013. But if the retirement age remains at 70, Democrats would need to win further open seats in 2017, when one Democratic and one Republican seat will be vacant, or 2019 when an additional Republican seat will be vacant. Democrats should thus hope for a sweep of all three seats this year to give them some room for error, but taking two of the three should be enough.
Another important reason to go all in for 2015 is that Philadelphia holds its mayoral election this year, but won’t again until 2019. Even when the general election in Philadelphia has been uncompetitive in years like 2007 and 2011, this 85 percent Obama city typically sees higher turnout relative to the state than non-mayoral years. Although Democratic ex-City Councilman Jim Kenney looks set for a blowout victory and the sample size from recent history is nonetheless small, we should still expect slightly better relative turnout from Philadelphia voters than in 2013 or 2009.You can see a clear pattern of this in action in the above chart, where Democrats on average won the most votes in years Philadelphia had mayoral elections and lost it in the years they did not. In addition to Philadelphia there are smaller cities and counties holding local elections, but none will have as large of an impact as a city with one-eighth of the state’s residents.
In the May primary, Democratic candidates beat Republican candidates by an 11.1 percent margin. While that may sound fantastic, Democrats had a 14.4 point two-party voter registration edge at the time (primaries are closed). Furthermore, Philadelphia’s Democratic mayoral primary was modestly competitive, boosting turnout there considerably to 13.2 percent of the statewide total, which is unlikely to be replicated in November. Regardless, Democrats still have a solid chance at winning each of the three seats.
The three candidates for the Democrats are Philadelphia Court of Common Pleas Judge Kevin Dougherty, in office since 2001, Judge David Wecht, first elected in 2011, and Judge Christine Donohue, who first won in 2007. Wecht and Donohue are from Pittsburgh’s Allegheny County and currently serve on the state Superior Court. (That body, along with the Commonwealth Court, is elected statewide and functions as the intermediate appellate courts, giving Pennsylvania a rather unique state court system.)
Wecht previously won his last election by 9 points in 2011, while Donohue’s 2007 race saw her on the ballot with two other Democrats against three Republicans. She won the most votes with 19.4 percent despite two Republicans winning the other two seats and Democratic candidates only narrowly winning the popular vote for that race combined because of Donohue.
The three Republicans are Adams County Court of Common Pleas Judge Michael George, who first won in 2001, Superior Court Judge Judy Olson, and Commonwealth Court Judge Anne Covey. Olson is also from Allegheny County and was first elected in 2009, while Covey is from Bucks County and was elected in 2011. Olson’s last election saw her compete for one of four seats where she took first with 15 percent while Republican candidates edged out the Democrats 53 to 45 to sweep all four seats. Covey last won by 4.2 points in 2009.
Democrats have reasons for optimism this year. Democrats Wecht and Donohue were both highly recommended by the state bar, while Dougherty had raised considerably more money than the other five candidates prior to the primary. Furthermore, Republican Covey was asked by the state Bar Association to drop out of this year’s race over a campaign advertisement from 2011, or face rejection, making her the only candidate in the race they actively recommended against. The remaining candidates were all recommended by the bar, but only Wecht and Donohue earned the highest recommendation level.
Throwing a potential wrench into the mix is Republican Philadelphia Common Pleas Judge Paul Panepinto, who did not even run in the statewide May primary. While Pennsylvania’s onerous ballot access laws typically block minor party candidates in Supreme Court elections, Panepinto has gathered enough signatures to make it onto the ballot as an independent. Unlike Covey, he was actually recommended by the Bar Association.
It’s not entirely clear how having an additional Republican with less baggage running as an independent would affect the race, but it would be unusual for Democrats to not win at least one seat given the dynamic with Covey and possible split votes if Panepinto runs. The biggest question in this race is whether Democrats win all three seats, or at least two out of three if the retirement age amendment passes.
We will have to wait until November to find out, but Democrats should be salivating at the prospect of controlling redistricting for a state legislature they’ve nearly been shut out from the past two decades. Aside from a brief period between 1992 and 1993, Democrats haven’t controlled the governorship and the legislature since 1978; by contrast, the GOP ran the entire state government from 2011 until Corbett left office early this year. Control of the state government would give progressives enormous opportunities in a large state, but we’ll need to win this November if we want to the chance to make real change in Pennsylvania.