This photo of the PA Supreme Court is from 2012. Now, three of seven seats are open and three more will open in the next three years.

This photo of the PA Supreme Court is from 2012. Now, three of seven seats are open and three more will open in the next three years.

Why the judicial elections on November 3 can keep Pennsylvania red, or turn it blue

Democrats in Pennsylvania are really, really hoping you care enough to vote on November 3.

Yeah, it’s hard to get people jazzed about voting these days. It’s even harder to get voters to come to the polls to cast ballots for three people to fill open seats on the state Supreme Court. Within the next three years, the state Supreme Court will see more turnover than ever before. Three seats are open now, and three more will become open by 2018. The last time three seats were open on the state Supreme Court in the same year, it was 1704 and the body was still called the Provincial Appellate Court.

Why’s this matter? Who wins this election will control who makes the laws in Pennsylvania in the coming years.

Currently, Republicans control the high court. But the party that elects more justices to the court this November will have a great advantage years down the line in 2022 when it’s time to re-draw the lines that determine who represents you in the state government. Whichever party is in control of the bench at that point can theoretically ensure their party has control of the state legislature.

It’ll come during a pivotal time for Pennsylvania — a time when we could see legislation in the state like fair school funding, drug legalization, prison reform, liquor privatization, discrimination statutes, gun control, and the list goes on and on.

The challenge for candidates and the state parties come November is getting people to come out and vote on the candidates for Supreme Court. Actually getting Pennsylvanians to do that is going to be an uphill battle.

“[Voters] aren’t even paying any attention,” state Republican party chairman Rob Gleason said. “The problem is, people are more interested in the presidential election, which is still 13 months away. There will be a very tepid turnout.”

How we got here

The only state Supreme Court justice who will still be around by 2020 is Debra Todd, a Democrat from Allegheny County. The rest of the members of the (normally) seven-person court will have reached the mandatory retirement age of 70 and will be ineligible for re-election. Here’s a look at the members of the court now:

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Billy Penn

Chief Justice Thomas Saylor – A Republican, who will reach the mandatory retirement age next year.

J. Michael Eakin – A Republican, who will reach the mandatory retirement age in 2018. He might go sooner though — he was one of the judges implicated in the statewide porn scandal, and indicted attorney general Kathleen Kane recently released emails forwarded by him that have been called both racist and misogynistic. The Supreme Court said in a statement that it’s retained a special counsel to investigate.

Correale Stevens – Stevens is a former Superior Court judge and a Republican who was tapped to serve on an interim basis on the court to replace Joan Orie Melvin, who was convicted for using legislative and judicial staffs to perform campaign work. Stevens didn’t win a bid for re-election to the Supreme Court in the May primary, so his seat is up for grabs this November.

Max Baer – A Democrat who must retire in 2017.

Debra Todd – A Democrat who is eligible for re-election in 2017.

The above does not account for two seats: One that was vacated by Philadelphia Republican Justice Ron Castille, who retired in January. The other seat was once filled by Philadelphia Democrat Seamus McCaffrey, who abruptly retired after being implicated in the statewide porn scandal. Both seats are up for grabs this November.

So if Democrats win all three seats in November, they can ensure they retain control of the court until past the redistricting process, even if the Republicans win out for the next three years. (This is assuming a scandal doesn’t force someone out, or a state constitutional amendment changing the mandatory retirement age isn’t passed. Both of those scenarios are possible.)

If Republicans win all three, they’ll have control until at least 2018. But if the votes are split — as in there’s a mix of Democrats and Republicans winning in November — it will be much harder to tell what the future make-up of the court will look like since three more judges are aging out in the next three years.

But here’s how the court could look and swing in the favor of a different party just based on the November election:

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Billy Penn

In addition, Philadelphia Independent Paul Panepinto is in the race. If he’s elected, it could throw things off even more and could make predicting the future make-up of the court even harder.

Why this matters for redistricting (and other issues)

Because the judges are elected to 10-year terms, the winners of this upcoming election will still be on the bench in 2022 when it again becomes time for redistricting the legislature. This means that the political party and affiliations of the people who are elected now could completely change state politics seven years down the road.

“This particular race will determine the direction for the court for 20 years,” said statewide Democratic party chairman Marcel Groen. “Politically speaking, what makes this the most important is that ultimately redistricting in Pennsylvania is largely controlled by the Supreme Court.”

Gleason said that’s because when the House and Senate Democrats and Republicans (one from each party in each chamber) can’t agree, the Supreme Court appoints someone to break the tie. That person is usually going to be of the same political party that is in control of the court.

Last time redistricting was up for consideration in 2012, the control swung to the Supreme Court because Republicans and Democrats in the state legislature couldn’t come to a decision. The Republican-controlled court sided with the Republicans. In no small part thanks to the lines that make up state House and Senate districts, and we now have a Republican-controlled legislature.

That Republican stronghold on the court can in some ways be felt in how district lines throughout the state are drawn. It’s a case study in gerrymandering, the practice by which legislators draw district lines to ensure that members of their parties get elected to public office by making boundaries around areas that have pockets of people who generally lean one way or the other politically.

If Democrats win two or more seats in this Supreme Court election that’s replacing two Republicans and one Democrat, it could change the districting of the state. In 2022, if Democrats want to re-draw the lines in their favor, a Democratic-controlled Supreme Court could make that possible.

Other bills besides redistricting are also at stake. Besides hot-button issues like gun control and the death penalty, Democratic politicians have expressed concern that if Republicans control the court moving forward, Right to Work legislation could be passed in the state and could dismantle how unions operate, similar to what happened in Wisconsin.

Money, labor and getting out the vote

And that’s where big labor comes in.

Unions are particularly excited about getting Democrats elected to the court, especially David Wecht, from Western Pa., and Kevin Dougherty, the brother of Philadelphia union boss John Dougherty. Johnny Doc’s union, the International Brotherhood of Electrical Workers Local 98, has dumped hundreds of thousands of dollars into getting Doc’s brother elected.

Wecht and Dougherty, who both had ads begin airing on TV’s across the state last week, have — along with fellow Democrat Christine Donohue — raised more than $5 million, according to the most recent campaign finance filings. That’s significantly more than the less than $1.5 million raised by three endorsed Republicans running.

Money and name recognition will matter if voter turnout is low, and some experts and strategists have already conceded that it’s not going to show that people are interested in the upcoming election.

“It would be a departure from history if it did,” said G. Terry Madonna, director of the Center for Politics and Public Affairs at Franklin and Marshall College. “It takes something serious to get people’s attention, and right now… it’s hard to say what’s likely to happen in terms of the public interest. But it’s not likely to be very big.”

Madonna said there’s excitement among interest groups like labor. But interest is hardly widespread. Lynn Marks, the executive director of nonpartisan advocacy group Pennsylvanians for Modern Courts, said one of the reasons voters don’t get into judicial elections is the nature of how they run: Platform-less.

“They’re supposed to make impartial and independent decisions not according to what they said on the campaign trail,” Marks said. “And so it’s difficult, because they don’t run on a platform like, ‘vote for me, because I’m going to espouse lower taxes or push for the abolition of the death penalty.’ That’s not what they’re going to campaign on.”

So what will turnout look like? It could be the most important election in decades. But Madonna said his hopes aren’t high.

“All in all, given the Philly mayoral election or lack thereof and no Pittsburgh mayoral election,” he said, “then I joke and say, ‘if we get 25 percent of registered voters out, break out the champagne.'”

How to learn more

PCN will broadcast and rebroadcast a forum bringing together all seven of the state Supreme Court justices who are taking part in a candidates’ forum Tuesday at Widener University. The field includes three Democrats, three Republicans and one independent. Find more information about the forum here.

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