State Judges on the Hot Seat

Though much of the attention to November’s elections is focused on races that will determine control of Congress and state capitals, surprising turmoil is brewing in Washington State over judicial contests. Races typically described as dull and predictable are drawing unusual scrutiny in the Evergreen State, where circumstances have put five of the state supreme court’s nine seats up for grabs in a single election.

With controversy raging over a court challenge to a new state income tax that opponents say violates Washington’s constitution, 15 candidates crowded into the judicial races, including four challengers to the court’s chief justice. Also drawing opponents are two justices, neither with previous judicial experience, appointed by Governor Bob Ferguson to replace retiring judges in seats up for election this year.

It’s been 16 years since an incumbent justice lost a Washington Supreme Court race, but the calculus may be different in 2026. A poll earlier this year found dissatisfaction with the court, with just 41 percent approving its performance.

Special circumstances have thrust Washington’s judicial elections into the spotlight, but it is hardly alone. In recent years—and especially since the U.S. Supreme Court’s Dobbs decision, which overruled Roe v. Wade and returned abortion policy to the states and elected lawmakers—state supreme court races have become more closely watched, fiercely contested, and expensive. With 32 states holding supreme court elections this year, 2026 may mark a milestone in the evolution of judicial politics.

Increasingly, voters understand that state supreme courts don’t just rule on flashpoint cultural issues. They also arbitrate redistricting, election disputes, and fundamental questions of state governance. The growing attention to these elections is, in some ways, simply catching up with the courts’ influence. Over the years, liberal state courts have done far more than the U.S. Supreme Court to expand progressive notions of a “living constitution” and “positive rights,” including mandates on housing and education spending. Meanwhile, in many states where political control has shifted to Republicans over the last two decades, courts led by originalist jurists have pared back some of these gains. The result is a widening divide between red and blue states on everything from taxing and spending to public order and citizen rights. Courts have enabled—or sometimes blocked—these transformations, which is why they have become battlegrounds in state elections.

Part of the growing debate arises because courts often change ideological orientation more slowly than the rest of a state government. In some states, judges serve longer terms than other elected officials, so shifts in the governor’s mansion or state legislature aren’t immediately reflected on the state’s highest court. Judicial elections may also differ from other races, taking place outside general election cycles or appearing on nonpartisan ballots that leave voters unsure of candidates’ party or ideological orientation. As a result, these races are often marked by low turnout or “undervotes,” in which voters cast ballots for other offices but skip judicial contests, a pattern that tends to benefit incumbents and delay changes in a court’s composition.

Even so, America has witnessed a gradual, long-term makeover of state high courts that has flipped control of many judiciaries. Some Democrats and liberal commentators have attributed the changes to Republican efforts involving “dark money” and other backroom politics. Much of the shift, though, simply reflects a reshaping of the state political map. In the early 1990s, about 65 percent of all state supreme court justices were Democrats, in part reflecting the party’s dominance of state politics. In 1993, for instance, 30 states had Democratic governors, and 16 had Democratic “trifectas,” with the party controlling the governor’s mansion and both houses of the legislature. Republicans enjoyed trifectas in just three states. Today, Republicans hold 26 governorships, and in 23 of those states, hold complete control of the legislature, too. Not surprisingly, the courts have changed with them. About 60 percent of state supreme court justices now lean Republican, according to Ballotpedia. The shift has not been entirely one-way: Democrats have recently made gains of their own, establishing new court majorities in several states.

Supreme court elections have become not only more visible and contentious but also costlier. A 2023 Wisconsin race that gave liberals control of the state supreme court for the first time in 15 years also set a campaign-spending record, at $51 million. Nearly $29 million of that came from groups outside the candidate campaigns, including $6.3 million from left-leaning A Better Wisconsin and $5.6 million from business lobbying group Wisconsin Manufacturers & Commerce. Just two years later, another Wisconsin judicial race shattered that record with $100 million in spending, including $28.3 million raised by liberal candidate Susan Crawford (who ultimately won the seat) and $15.1 million by opponent Brad Schimel. Spending by outside groups outpaced that of the candidates themselves. Groups like America PAC, A Better Wisconsin, Americans for Prosperity, and the ACLU Voter Education Fund poured some $57 million into the race. Though critics have derided this expenditure, one consequence has been a rise in turnout in state judicial elections.

While Wisconsin’s races have attracted the most money, spending records have fallen in other states since 2023. Driven in part by the Dobbs decision, outside spending surged into Pennsylvania in 2023 for the race between Democrat Daniel McCaffery, the ultimate winner, and Republican Carolyn Carluccio. Of the $27 million expended on the race, $16.6 million came from outside groups. Since then, other states, including Montana and Oklahoma, have also set records for campaign spending on judicial races.

The emergence of an increasingly liberal Wisconsin Supreme Court through costly elections underscores the rising stakes of judicial races. Earlier this year, Democrats expanded their majority on the court to 5–2. One effect is a new challenge to Act 10, the landmark 2011 law signed by then-Governor Scott Walker that limited public-sector unions’ collective bargaining rights and ended automatic deduction of union dues. That law helped end the hiring and firing of teachers by seniority and allowed school districts to reject a costly health plan run by a union-owned insurer, saving hundreds of millions of dollars. A study by two business-school professors found that the law also improved student test scores by freeing administrators from collectively bargained mandates and thereby enabling schools to target resources more effectively.

Now, however, the state supreme court’s transformation into a solidly liberal body has given public-employee unions hope of overturning Act 10. A new challenge is working its way through the courts, and a county judge has already ruled that the law violates the state constitution’s equal-protection clause—even though he had signed a petition calling for Walker’s resignation after Act 10 became law and declined to recuse himself from the case.

The case has yet to reach the state supreme court, but one justice, Janet Protasiewicz, elected in 2023, has already said she thinks the law is unconstitutional. (It’s worth noting that Act 10 has survived numerous local and federal court challenges since its enactment.) “Wisconsinites will suffer” if Act 10 gets overturned, Walker has argued. “The law made the government more effective, efficient and accountable to the people.”

The 2022 court elections in North Carolina, the most expensive in state history, offer another example of how state policy can change with a court’s composition. The races, focused on issues ranging from reproductive rights to claims that Democratic judges were “soft on crime,” changed the court from a 4–3 Democratic majority to a 5–2 Republican one. Several fundamental changes in the interpretation of state law followed, including on voter ID. In December 2022, after the election but before the new justices took their seats, the Democratic majority struck down voter-ID requirements that voters had approved in a 2018 constitutional referendum, ruling that they violated the state constitution’s equal-protection guarantees. Five months later, the new Republican majority reversed that decision, holding that the amendment, approved by 55 percent of voters, was not discriminatory.

Democrats in the Tar Heel State can set the stage for a comeback this November, when Democratic justice Anita Earls faces reelection. Sarah Stevens, a Republican member of the state’s House of Representatives, who says she believes in “strict construction of the constitution,” is challenging her. Though the race cannot flip the court, an Earls victory would put the majority within reach in two years, when three Republican justices face reelection.

In Montana, ostensibly nonpartisan judicial elections are growing increasingly intense as the Republican majority that dominates state government squares off against the state supreme court. Since Republicans won the governorship and both legislative chambers in 2021, the court has overturned several laws they passed, including one to end Election Day voter registrations and another to ban “gender-affirming care” for minors. The state senate majority leader, Tom McGillvray, has called the court “a de facto executive branch in the judicial branch.”

The philosophical divide has even shown up in court decisions. In a recent dissent, two conservative judges contended that the majority, in departing from precedent, had jettisoned “long-established governing authority” and filled the vacuum “with its own preferences to weaponize the law” against Republican legislators. Against this backdrop, a potential swing seat is on the ballot in November, with one of the liberal justices declining to run for another term. One candidate, district court judge Dan Wilson, has described himself as “a judicial conservative who will follow the law and not legislate from the bench.” His opponent, district court judge Amy Eddy, has pledged to keep judicial elections nonpartisan and is backed by several liberal groups in the state.

Montana is also one of two states, along with Kansas, where voters are deciding this year how to select supreme court judges, hence Eddy’s promise. A citizens’ initiative on the November ballot would enshrine nonpartisan judicial elections in the state constitution, effectively blocking Republican legislative efforts to shift to partisan elections.

The debate over partisan versus nonpartisan judicial elections has intensified over the last decade, with North Carolina and Ohio switching to partisan races. Supporters of Montana’s current system, in which party affiliations do not appear on the ballot, argue that it keeps politics out of the judiciary and encourages voters to focus on a judge’s legal competence and “vote for the person, not the party.” Advocates of partisan elections counter that party affiliation gives voters useful information about a judge’s likely philosophy and ideological leanings. As a Wisconsin Law Review article maintains, without party labels, “interest groups and others can more easily shape voters’ perceptions of a judge by publicizing isolated rulings.”

Kansas voters rejected an August referendum that would have replaced the current system, in which a nominating committee of lawyers recommends candidates to the governor, with judicial elections. Kansas Senate President Ty Masterson, a critic of the existing system, says that, though the process is supposed to be nonpartisan, “it’s just politics veiled by a commission, and we should stop pretending. Direct elections make the political dynamic explicit, not hidden in backrooms by bar members who think they’re better than the rest of us.” By contrast, retired Supreme Court Justice Carol Beier called the current system “fair and impartial for every citizen.”

Appointed Kansas Supreme Court justices do face voters when their six-year terms end. They must then undergo a “retention” election, an unusual process in which the justice runs unopposed and faces a simple up-or-down vote. This year, 14 states are holding judicial retention elections. For decades, such votes were largely uncontroversial, with most justices easily returned to the bench. But reflecting the increasingly heated environment surrounding judicial elections, even retention campaigns have grown more contentious.

Two years ago, Oklahoma voters ousted Supreme Court Justice Yvonne Kauger, who had served on the court for 40 years. Two other justices who, like Kauger, had been originally appointed by Democratic governors, narrowly won retention in that election. The issue, according to the Oklahoma Council of Public Affairs, a conservative group, was that, “Despite Oklahoma’s conservative reputation, the Supreme Court often leans liberal.” This year, four Oklahoma justices face retention votes. While Republican governors appointed all four, one, Richard Darby, has drawn criticism from some conservatives for his decisions, including one denying a Catholic charter school the right to open and another invalidating an Oklahoma law requiring mail-in ballots to be notarized. Whether conservatives mount a campaign against him remains to be seen.

Progressives, meanwhile, have targeted justices facing retention in swing states where court rulings have limited abortion access. In Arizona, where liberal groups failed to oust two conservative justices appointed by former Governor Doug Ducey in 2024, another Ducey appointee, Justice John Lopez, faces retention this year. Progressive groups may also enter judicial races in Alabama, Florida, Georgia, North Dakota, Oklahoma, and Texas.

Even in contested judicial races, incumbents historically enjoy an advantage, as voters are far less likely to change course than in races for governor or the legislature. Michigan may test that pattern in 2026. Though a competitive state that has voted for Donald Trump in two of the last three presidential elections, its supreme court today favors Democrats by a 6-to-1 margin, partly because Governor Gretchen Whitmer, a Democrat, appointed two sitting justices to complete the terms of jurists who resigned. In November, two Democratic judges, including Whitmer appointee Noah Hood, face contested elections. Republicans have nominated Oakland County Circuit Court Judge Michael Warren, a constitutional law professor at Wayne State and the cofounder of Patriot Week, a website devoted to America’s “first principles.” Their candidate for the other seat is Circuit Court Judge Casandra Morse-Bills, a former prosecutor who, in her speech accepting the GOP’s nomination, said that “a judge’s job is not to create the law, not to bend it to personal views, and not to follow political pressures,” but to “apply the law as it is written and to protect the constitution.”

The outcome may depend on the broader political environment in a state with a virtually even split between Democratic and Republican voter registrations and a highly contested governor’s race, along with a U.S. Senate race, in November. If Republicans make headway, they could be positioned to flip the court in coming years.

Because of their low profile, judicial elections are rarely seen as bellwethers of political change in a state. One intriguing question is whether Washington’s five supreme court races will prove an exception. Long liberal-leaning, Washington has drifted further left since Republicans lost control of the state senate in 2017. The Evergreen State’s supreme court has effectively led the charge, with rulings on everything from liberalization of drug possession to taxation to support for race-conscious standards in school admissions. The court has also stymied efforts by moderates and conservatives to take issues directly to voters. Earlier this year, the judges ruled that a referendum to repeal the state’s new “millionaire” tax couldn’t proceed because the tax is “necessary to the functioning of government,” forcing opponents instead to put an initiative on the November ballot that would effectively bar the tax. A Ballotpedia study of the court’s decisions since 2013 found that 74 percent of cases “coded as progressive received decisions that were favorable, and 16 percent received unfavorable decisions.” By contrast, 86 percent of conservative-coded cases received unfavorable outcomes.

A glimmer of change may be on the horizon. Two years ago, heavily backed Democratic trial attorney Sal Mungia won an open supreme court seat with just 50.5 percent of the vote against GOP-backed district court judge Dave Larson. Now retired from the district court, Larson is running again, this time against Justice Theo Angelis, appointed to the court in April by Governor Bob Ferguson. Larson, one of several moderate or right-leaning candidates challenging the court’s leftward tilt, finished a close second to Angelis in the four-candidate August primary and will face him in November. In another potentially consequential race, Mason County Superior Court Judge David Stevens, backed by the state GOP and the Washington Council of Police and Sheriffs, won his primary for an open supreme court seat and heads into November in a strong position.

These races have been the focus of a state group called Full Court Press, which says that it wants “to bring balance to our state’s judicial system.” One of its goals is to convert the many voters who show up at the polls but don’t pull the lever for any judicial candidate because they lack information. “Voters who skip this election, they are handing the court to progressive activists,” Seattle talk-show host Jason Rantz says about the upcoming elections. “Judge races are notorious for undervotes, people leaving them blank because they don’t know the candidates, and those blank votes almost always benefit the incumbent.”

What Rantz describes is a nagging problem in our selection of state high court judges. For years, good-government types have promoted nonpartisan elections and other efforts to keep “politics” out of the courts—such as having judges selected from lists drawn up by commissions composed of lawyers. Meanwhile, however, in some states, these nonpartisan votes have been plagued by low turnout, which has entrenched incumbents, while increasingly politicized state and national associations of lawyers have sparked controversy with their judicial recommendations.

While there is no one-size-fits-all solution to state elections, it’s clear that some of the scrutiny and reforms of recent years are answering a need that the current system has revealed. What the movement toward partisanship and open campaigning has brought to judicial elections is more voter attention and, in some places, higher turnout. The debate over how to elect judges is likely to gather more momentum in coming years. It’s a debate worth having.