Morning Digest: Don't overlook the other really big state Supreme Court battle this year

Pennsylvania Democrats have held a majority for a decade. That could end.

The Pennsylvania state capitol, home to the state Supreme Court (credit: Dough4872 / CC BY-SA 4.0)

Leading Off

PA Supreme Court

Pennsylvania will host a titanic battle this November that will determine whether Democrats retain control of the state's highest court—or whether Republicans can undo that majority, forged in a momentous election 10 years ago.

The outcome of that decade-old confrontation has had a profound effect on state politics that's still felt today. Led by Democratic justices, the Pennsylvania Supreme Court brought an end to partisan gerrymandering that Republicans had long used to cement their power. It also held fast against efforts by Donald Trump and his supporters to subvert the results of the 2020 election, and it will soon resolve a long-running dispute over ballot access that has affected thousands of voters.

That transformation came about after Democrats seized the opportunity to flip three open seats on the court on a single election night in 2015. With heavy funding from labor unions and trial attorneys, a trio of Democratic judges—Christine Donohue, Kevin Dougherty, and David Wecht—ran the table and secured 10-year terms, bringing to an end a long stretch that had seen Republicans in charge for all but two years since 2001.

Democrats have successfully defended their hard-won 5-2 majority ever since, but the contest this fall will unfold under a very different set of rules than those used 10 years ago. Rather than running against actual opponents, all three justices will instead face "retention" elections, in which voters are asked whether they'd like to keep each incumbent in office for another term.

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Historically, very few judges have ever failed to win retention, in Pennsylvania and elsewhere. But as polarization surges to ever more extreme levels, operatives may have an easier time getting voters to equate a "yes" or "no" vote with a particular party's interests—though notably, the justices won't be identified with party labels on the ballots.

Republicans also won't have to worry about fielding any candidates, with their attendant flaws, in these statewide contests. Instead, they'll be able to devote their resources to attack ads seeking to tar the incumbents with any unpopular theme associated with Democrats writ large. Judicial conduct rules, by contrast, restrict the justices from engaging in the sort of bare-knuckled politics common to most elections; they'll instead have to rely on outside groups to run negative ads hammering the "no" side.

Those groups are certain to play a big role once again on both sides given the immense impact the Supreme Court has had—and continues to have—on the Keystone State.

Just two years after Democrats retook the bench, the court ruled that partisan gerrymandering violated the Pennsylvania constitution and struck down the state's congressional map, which Republicans had drawn to give themselves a 13-5 majority despite the state's evenly divided nature. A replacement map drawn by the court instead reflected Pennsylvania's swing-state status, with Democrats and Republicans each winning nine seats apiece in the 2020 elections.

That same year, Trump and his allies brought an avalanche of lawsuits in both the state and federal courts in Pennsylvania seeking to overturn his loss in the state. Virtually all were rejected, including several by the state Supreme Court. Desperate appeals of those decisions to the U.S. Supreme Court went nowhere.

Pennsylvania's high court struck another blow against rigged maps in 2021. Unlike the state's congressional districts, which are normally drawn by lawmakers, maps used to elect members of the legislature are prepared by a state commission equally divided between the parties.

The state Supreme Court, however, chooses a tiebreaking member, who, in previous decades, had signed off on lines that were heavily tilted toward the GOP. This time, however, the court tapped a retired university chancellor named Mark Nordenberg who agreed with Democrats that the state House map needed a major revamp.

The final result was a plan that, much like the congressional map adopted a few years earlier, yielded an almost perfect split. Whereas Trump had carried 109 districts under the previous boundaries versus just 94 for Joe Biden, the new map gave Biden a 102-101 edge. In 2022, the first elections held using that map likewise resulted in Democrats winning a 102-101 majority—the first time they'd done so since 2008.

Many more decisions in the voting rights arena await the court, including one years-long conflict over a 2019 law requiring voters to sign and date the envelopes they use to return mail ballots.

Many ballots are rejected because they lack such a date, which critics say violate the state constitution as a needless burden. (Election officials don't actually rely on these handwritten dates to determine eligibility.) Lower courts have agreed with opponents of this provision, but Republicans have appealed. On Friday, the Supreme Court said it would hear the case, which could finally resolve the matter sometime later this year.

In November, though, voters will have the chance to set the court in a new direction, but even if Donohue, Dougherty, and Wecht are all rejected by voters, a Republican takeover would not be guaranteed. Rather, the seats of any defeated justices would be declared vacant, temporarily reducing the court to a 2-2 deadlock.

Democratic Gov. Josh Shapiro would have the power to name replacements, but his nominations would require the support of two-thirds of the state Senate—a chamber that Republicans currently control 27-22. Barring a deal, then, it's possible any vacancies could remain unfilled until the 2027 elections, when they'd go before voters again as open seats.