BETHLEHEM, Pa. — Pennsylvania's normally quiet Supreme Court judicial retention questions will be one of the most closely watched political races in the country this Election Day.
Voters are being asked in straight-forward yes or no questions if Justices Christine Donohue, Kevin Dougherty and David Wecht should be allowed to have second 10-year terms on the high court.
The three Democrats were first elected to the high court in 2015. Over the past decade, they have weighed in on high-profile cases involving reproductive rights, mail-in ballots, COVID-19 mask policies and gerrymandered political districts.
The court also ruled against President Donald Trump's campaign in several lawsuits it filed following the 2020 election, including rulings that mail-in ballots should be counted and that the state's mail-in ballot law was legal. The decisions contributed to Joe Biden carrying Pennsylvania and winning the presidential election.
Since Pennsylvania adopted its current judicial election method in 1968, nearly every Supreme Court justice seeking retention has kept their job regardless of party. The one exception was Justice Russell Nigro, whom frustrated voters rejected after lawmakers awarded themselves, the governor and judges raises in 2005.
But that hasn't stopped conservative lobbyists from spending millions of dollars in bids to persuade voters to ditch the three Democratic justices this year. That in turn has led liberals to pump millions more into the race to support their candidates.
In some ways, the retention questions mirror the high-profile campaign blitz in Wisconsin's Supreme Court race earlier this year. A swing seat on the bench was up for grabs, prompting political action committees and lobbyists to pump almost $57 million into the race. Combined with the $43.4 million the candidates spent on their campaigns, the race became the most expensive state Supreme Court campaign in American history.
"We're in a brave new world where every election is going to be, in a place like Pennsylvania, fought for because everyone considers the state so important."Christopher Borick, Muhlenberg College political science professor
The political spending in Pennsylvania hasn't reached those heights yet, but it's still an unprecedented amount for a Pennsylvania retention race.
The Brennan Center for Justice reported that the candidates, allies and opponents have have spent an estimated $9.1 million in TV ads alone as of Thursday. About $7.5 million of that amount has come from liberal political action committees, which have argued that a yes vote would protect elections and preserve abortion rights in Pennsylvania.
That estimate doesn't include millions more spent on mailers, yard signs and other other forums of political messaging.
'Brave new world'
Christopher Borick, a professor of political science at Muhlenberg College, said Pennsylvania's and Wisconsin's statuses as swing states are what's driving the investment. The states are typically viewed as competitive in statewide and federal elections, making control of their Supreme Courts a top political priority. Given how close presidential races tend to be in the two states, the deciding factor in an election could come down to a Supreme Court ruling, he said.
"People can't even remember ads for these things because they're so rare, at least historically," Borick said of Pennsylvania's judicial retention questions. "We're in a brave new world where every election is going to be, in a place like Pennsylvania, fought for because everyone considers the state so important."
Some of the ads have drawn strong pushback for their misleading messaging or for adopting language typically associated with the opposing side.
A mailer circulated by the Commonwealth Leaders Fund accused liberal justices of gerrymandering Pennsylvania's congressional districts to help Democrats win. But the map featured on the mailer was one that the Supreme Court struck down in 2018 for unlawfully favoring Republicans. The map, adopted in 2011, drew national derision for its partisan nature and tortured borders.
What if? ...
Similarly, many yard signs urging voters to vote no on retention have adopted the No Kings language that Democrats have used to criticize Trump. The signs do not state who paid for them, but Scott Pressler, a conservative activist associated with Early Vote Action PAC, has posed with the yard signs on social media.
If the no vote wins out, Donohue, Dougherty and Wecht would lose their seats on the bench, leaving four sitting Supreme Court Justices split along partisan lines.
Gov. Josh Shapiro could nominate three candidates to hold the seats temporarily until 2027, when there would be a new election. However, the Republican-controlled state Senate would have to approve the nominees, and there's no guarantee that would happen.
Shapiro and the Senate frequently do not see eye-to-eye. Pennsylvania's 2025-26 budget is four months late as Senate Republicans have balked at Shapiro's initial $51.5 billion spending plan.
More than $2 billion separate the two sides in the most recent budget spending proposals. The inability to reach a deal has resulted in billions of state tax dollars from being disseminated to school districts and county governments.
