The Third Branch: How the 2018 Midterms Will Reshape State Jurisprudence

By Owen Voutsinas-Klose
Owen Voutsinas-Klose  is a sophomore at the University of Pennsylvania studying Politics, Philosophy and Economics and minoring in Legal Studies and History in the College of Arts and Sciences.
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State courts play a vital role in serving as a check on legislatures and administering justice against companies and individuals accused of wrongdoing.  Unlike at the federal level, many states elect most or all of their highest court justices. Seven states, including North Carolina and Pennsylvania, elect justices to their highest courts.  Twenty states hold partisan judicial elections at all trial court levels. [1]

The election of judges remains controversial.  It was initially a method of holding jurists to account, yet there were issues raised with it then too. Alexis de Tocqueville during his travels in America warned that “these innovations will, sooner or later, have disastrous results.”  Because of these systems, as well fierce fights on the state level over medicaid expansion, voting rights and gerrymandering, the 2018 elections will prove pivotal for state jurisprudence on critical issues. [2]

Thanks to a recent state supreme court decision, the next Governor of Florida will have the opportunity to fill three seats on the state’s court.  In a GOP dominated state, liberal justices have an effective majority on the court. This has been used to strike down measures supporting charter schools, limiting medical malpractice claims, and Florida’s death penalty law.  These measures have significant impact on key Democratic constituencies, including trial lawyers and teachers unions. Yet the three liberal justices will see their terms elapse in 2019, allowing a future GOP governor to solidify a court majority for years to come.  This raises the stakes of the current race between Democrat Andrew Gillum and Republican Ron DeSantis on a number of key issues important to both parties.

In Arizona, teachers unions have taken aim at a jurist who struck a union backed amendment from the November ballot.  The amendment would have raised taxes on high income earners from over 4% to 8%, using the money to pay for education.  Yet the union backed coalition’s language supplied to petition signers explaining the measure stated that the increase would be in “percent,” rather than “percentage points.”  Accordingly, the court struck the language from the ballot. In retaliation, Arizona Education groups have poured money into defeating two justices who ruled against them in retention elections.  These elections determine whether a justice appointed by the Governor should remain on the court. In the history of the state of Arizona, no justice has ever not been retained. This election has consequences for the future of education funding in Arizona, and could make justices more fearful of striking misleading ballot propositions. [3]

In North Carolina, Democrats have a majority on the State Supreme Court.  This has been used to stymie laws passed by the GOP legislature that stripped Democratic Gov. Roy Cooper of powers.  In retaliation, the legislature has threatened to increase the size of the court to remove the Democratic advantage, and has placed a measure on the November ballot removing the Governor’s power to fill judicial vacancies.  NC elects the state’s highest court under nonpartisan elections, and the state’s Republicans have passed a measure to make the races partisan in the hopes that Democratic justices will be unseated. Voter rights advocate Anita Earls (D) is running against incumbent Barbara Jackson (R) in the race, with a third Republican Chris Anglin also on the ballot.  If Anglin is able to win, she will increase the Democratic majority on the court and force the legislature to add even more seats. [4]

These races are critical to national issues in the age of Trump, spanning from partisan redistricting to voting rules.  The outcomes will have wide reaching consequences outside of each state’s borders, and will shape policies for decades to come.   


[1] “Partisan Election of Judges.” Ballotpedia, ballotpedia.org/Partisan_election_of_judges.
[2] “The Trouble with Electing Judges.” The Economist, The Economist Newspaper, 23 Aug. 2014, www.economist.com/united-states/2014/08/23/the-trouble-with-electing-judges.
[3] Flaherty, Joseph. “Teachers Target Arizona Supreme Court Justices in Elections After Tax Ruling.” Phoenix New Times, 26 Oct. 2018,
[4] O'Connor, Jessa. “Judicial Elections, Constitutional Amendments You'll See On The November Ballot.” WFAE, www.wfae.org/post/judicial-elections-constitutional-amendments-youll-see-november-ballot.

​Photo Credit: Wikimedia Commons

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