If the U.S. Senate confirms federal appeals court judge Brett Kavanaugh to the U.S. Supreme Court, it would reshape the court into one that is less likely to protect fundamental democratic rights. President Trump's nominee will likely face questions at his confirmation hearing about his 2012 decision to overturn the U.S. Department of Justice's determination that a South Carolina voter ID law discriminated against voters of color. As voting rights reporter Ari Berman warned, Kavanaugh's ascension would result in "the most extreme court on civil rights issues since the days of Jim Crow."
That would shift the burden of protecting voting rights to state supreme courts. Nearly every state constitution includes a general right to vote, which is often broader than the right to vote under the U.S. Constitution.
However, elected state courts are more vulnerable to political pressure than appointed federal judges, and their decisions are easier to overturn through constitutional amendments.
In recent years, the supreme courts of Arkansas, Florida, and North Carolina have struck down voter ID laws or gerrymandered election districts. Since those decisions, all of these courts have faced threats to their independence from conservative legislators and special interest groups that support voter ID and other voter suppression measures.
For example, the legislatures in Arkansas and North Carolina have approved constitutional amendments for the November ballot that would overturn court decisions. Both states have also seen a flood of money in their recent supreme court elections from secret-money groups and the Republican State Leadership Committee (RSLC), a D.C.-based group that among other things supports voter ID laws and helps state legislators gerrymander election districts.
At the same time, legislators in Florida and North Carolina have proposed constitutional amendments giving them more control over judicial appointments. If passed, they would leave the highest courts in both states vulnerable to court-packing schemes. The Florida court packing scheme is not connected to the amendments that are on the ballot in that state.
The judiciary branch was created expressly to be independent from political pressure, as judges are supposed to decide cases based on the facts and law — not politics. The scope of someone's constitutional rights is not supposed to depend on whether a state legislature or a majority of voters agrees.
Money floods judicial races
At the same time legislatures have been targeting state courts, secret-money groups have been investing millions of dollars to elect conservative judges. In Arkansas for example, spending in recent state supreme court elections has been dominated by the Judicial Crisis Network (JCN), a political nonprofit that's also spending millions of dollars to get Trump's nominees on federal courts.
JCN is part of the right wing's long-term effort to get conservative, pro-business Republican judges on the bench. The group is linked to the Koch brothers' network of secret-money foundations, and its lead funder is the Wellspring Committee, a major conservative funding source that does not disclose its donors. JCN has attacked judges for their ties to lawyers who represent injured people, and it has supported judges who later ruled to uphold limits on lawsuits.
JCN is also a reliable donor to the Republican State Leadership Committee, along with tobacco company Reynolds American, Koch Industries, and large corporations that often have business before state courts. The RSLC's largest donor in 2016 — by far — was the U.S. Chamber of Commerce, the largest pro-business lobbying group in the country.
In the recent Arkansas Supreme Court primary, JCN and the RSLC spent more than $1 million combined. The groups' ads were criticized for misleading voters, and a judge even blocked a JCN attack ad, ruling that it was libelous. Among the ads aired by the RSLC was one attacking an Arkansas Supreme Court justice for joining in a ruling to strike down the state's 2013 voter ID law.
The RSLC has amped up its spending in state judicial elections in recent years. Back in 2014, as the North Carolina Supreme Court was hearing a lawsuit challenging a legislative redistricting map that the RSLC helped draw, the group gave more than $1 million to a conservative outfit that played a prominent role in that year's state supreme court election. The RSLC's donation helped fund a widely criticized ad attacking an incumbent justice who — just over a month after winning her re-election — dissented when the court upheld North Carolina's 2011 redistricting map.
The RSLC has been crucial to Republicans' current dominance of state legislatures. In 2010, the group worked to elect Republican majorities in state legislatures, then helped those legislatures gerrymander election districts to benefit Republicans. The post-2010 maps drawn by Republicans in Alabama, North Carolina, Texas, and Virginia were eventually found by courts to have discriminated against black or Latino voters.
Having spent millions to get their judges on state courts, the RSLC recently acknowledged that Trump's takeover of the federal judiciary will force voting rights activists to "focus their litigation strategies on redistricting into state level courts."
Politicians v. the courts
State courts also face pressure from legislatures with the power to pack the courts, limit judicial authority, and change how judges are chosen to inject more politics and partisanship.
North Carolina legislators have tried all of these things in recent years. Their power grabs followed court rulings that have struck down the Republican-controlled legislature's discriminatory voting laws, gerrymandered election districts, and a law that would have given legislators control over the state elections board.
For example, the North Carolina General Assembly repealed a popular and effective public financing program for judicial elections in 2013 that had led to unprecedented diversity on appellate courts and eliminated the need for judicial candidates to raise large campaign contributions. The legislature also made judicial elections partisan and shrank the state Court of Appeals to prevent appointments by the Democratic governor.
And in 2016, after North Carolina voters elected a progressive Supreme Court justice and ended conservative control, Republican lawmakers proposed a plan to add two seats to the court and allow the lame-duck Republican governor to quickly fill them. Legislators backed down after public outcry.
Republican lawmakers recently laid the groundwork for another state Supreme Court-packing plan by introducing a constitutional amendment — one of six on the November ballot — that would essentially let the legislature choose judges for vacant seats. North Carolina and Arkansas are also voting on amendments to add voter ID requirements to their state constitutions.
The Florida Supreme Court, which in 2015 struck down the legislature's congressional maps for violating the state constitution's ban on partisan gerrymandering, could also be reshaped by court packing after the November election. Gov. Rick Scott, a Republican who's now running for U.S. Senate, has argued that he has the authority to appoint replacements for three justices who are leaving office the same day as he is due to the state's mandatory retirement age for judges.
This is not the first time in recent years Florida's courts have faced a packing threat. In 2011, state legislators considered a constitutional amendment to increase the number of justices so Scott could appoint conservatives and shift the court's ideological balance. Legislators backed down amid public opposition. However, they did approve a different proposed amendment that — like the pending North Carolina amendment — would have given legislators control over choosing judges. It was overwhelmingly defeated by the voters.