You might have gotten an ad in the mail recently encouraging you to vote “no” on the three judges facing judicial retention elections. Or perhaps you saw a TV spot with three smiling justices — Christine Donohue, Kevin M. Dougherty and David Wecht — boasting that they are all recommended for retention by the PA Bar Association. Or maybe you saw one scrolling through Instagram, saying that voters can “term limit” these justices. Or on YouTube. Or X.
Pennsylvanians are no strangers to political advertisements. But rarely do they enter the mix when it comes to judicial retention elections — a sleepy, off-season affair Pennsylvanians use to decide if justices on the state’s three appellate courts should serve another 10-year term. Only one judge has ever lost a judicial retention race.
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So why are this year’s state Supreme Court retention races getting so much attention? Well, for one thing, it’s the first time three justices of the same party are up for retention at once. Donohue, Dougherty and Wecht were all elected as Democrats in 2015, flipping the court from Republican to Democratic control. For another, Republicans are trying to seize an opportunity to take back the court.
Both sides are now engaged in a heavy ad campaign to try to flip voters. The stakes are getting higher as we get closer to election day, with Governor Shapiro weighing in and billionaires pouring money into the race.
This marks a significant departure from previous judicial contests in Pennsylvania, where law — rather than spin — used to reign. What we’re experiencing is the trickle-down effect of our national political climate, with all its nihilism and dysfunction. With so much at stake, what does this mean for a judiciary that is supposed to remain above all the politicking of our day?
The vote “no” campaign
Opponents of the candidates running for judicial retention are running a two-pronged campaign: one to drum up support among registered Republicans and one to sway registered Democrats.
On the Republican side, they’re emphasizing how voting “no” supports President Donald Trump’s agenda, a winning issue with most Republican voters. The strategy to swing Democratic voters is a bit more insidious. Retention elections in PA are nonpartisan. Justices don’t run with a “D” or an “R” beside their names on the ballot. Straight ticket voters might not remember a justice’s party affiliations from 10 years ago.
This dynamic presents an opportunity for those who want the justices removed from the court to put out misleading information about their records to try to get voters who are inclined to vote yes to flip.
“They’re trying to trick —and that’s the word — Democrats into thinking that if they vote no, they’ll be protecting democracy and freedoms,” says public affairs executive Larry Ceisler of Ceisler Media.
One mailer says “these justices have a record of siding with sexual predators,” citing the Supreme Court having overturned the conviction of Bill Cosby as an example. But that’s not exactly fair. Cosby’s conviction was overturned on a procedural issue because former Montgomery County DA Bruce Castor, a Republican, promised Cosby he wouldn’t face criminal charges if he cooperated in a civil lawsuit. The court ruled that Cosby’s due process rights had been violated when new MontCo DA Kevin Steele went back on Castor’s promise, and ordered him released from prison.
“They’re trying to trick —and that’s the word — Democrats into thinking that if they vote no, they’ll be protecting democracy and freedoms.” — Public affairs executive Larry Ceisler
Another ad claims “liberal Supreme Court gerrymandered our Congressional districts to help Democrats win.” But it features an image of a gerrymandered map that the justices threw out in favor of one that has low-partisan bias, according to Fair Districts PA, a nonpartisan coalition that advocates for fair maps.
That is no accident. Rather, it’s exploiting an ignorance among Pennsylvania voters about the intricacies of our political system. It is — not to put too fine a point on it — saying the opposite of what actually happened in the court.
As Eugene DePasquale, chair of the PA Democratic Party, says: “Some people call [the mailer] disingenuous; I call it a lie. That’s how low they are going in this campaign.”
In at least one way, the Republicans have proven to be diabolically innovative: Both mailers — and other ads on TV and Instagram — position the retention votes as a way Pennsylvania voters can impose term limits on the court. Term limits are popular with voters at nearly all levels of government. An Annenberg survey found that 68 percent of voters support term limits for the U.S. Supreme Court and 69 percent support a mandatory retirement age.
But in PA, our justices don’t serve lifetime appointments as they do on the U.S. Supreme Court. They face retention elections every 10 years so voters can decide whether or not they can serve another term. They also have to retire at age 75. Donohue, who is 72, will have to retire in three years even if she wins her retention election.
“They are deliberately confusing the federal judiciary with the state judiciary,” Ceisler says.
The vote “yes” campaign
DePasquale says Democrats were expecting contentious retention races this fall and are prepared to mount an aggressive campaign in support of retention for all three justices. They’re emphasizing the justice’s records of supporting access to abortion, ensuring free and fair elections, protecting the environment and supporting equal funding for education. During phone and text banking calls they’re having conversations with people to debunk some of the claims in the “vote no” campaign ads.
In some ways they have the advantage. Only one justice, Supreme Court Justice Russell Nigro, has ever lost a retention election. He left the court after losing a retention race in 2005. The opposition to his retention was “very organic,” Ceisler says, and not partisan. PA voters were angry about legislation that gave the legislature, executive, and judiciary branches of our state government a major pay raise and voters took it out on Nigro’s campaign.
Still, they face some challenges. Most judges coast to retention victories because there isn’t usually a campaign urging voters to vote “no.” This is an off-cycle election year, expected to have low voter turnout, and justices aren’t exactly major political figures with a lot of name recognition. “Most Pennsylvanians can’t name one state Supreme Court Justice,” says J.J. Balaban, partner at Technicolor Political, “let alone all seven.” There are strict rules about what justices can and can’t do while campaigning — including prohibitions on lying or engaging in sensational campaign tactics, like using an image of a jail door or handcuffs.
So to get to a victory, Democrats are pulling out the big guns. On October 7, PA Dems released an ad from Governor Josh Shapiro, endorsing the judges and underscoring their role in protecting access to abortion and birth control. His picture is on mailers endorsing the candidates.
Shapiro is the most popular politician in the state and has the highest name recognition. A Quinnipiac poll released this month found he had a 60 percent approval rating. DePasquale jokes, “I’m not sure he’s on Taylor Swift’s level yet, but he’s working to get there.” (The vote yes campaign is also bringing in actual celebrities: Stockard Channing, who played First Lady Abbey Bartlet in the TV show The West Wing, is voicing a judicial retention ad aimed at MontCo voters.)
Balaban cautions that “popularity isn’t transferable.” Still, Shapiro is both popular and non-polarizing. With endorsements, you don’t want to bring in someone who could motivate the other side. If Marjorie Taylor Greene, for instance, came to PA and urged voters to vote “no,” that could push Democrats to the ballot box to vote “yes,” because they don’t like her.
“Part of [Shapiro’s] strength as a surrogate, is that he has the ability to motivate Democrats without polarizing independents and Republicans,” Balaban says.
All or nothing
Political observers predict that all three justices will either win retention or be voted off the court. Campaigns on both sides are using the messaging to either vote “yes” or “no” on all three candidates — not scrutinizing anyone’s individual records. The move to lump all three justices together is strategic on both sides. Voting “yes” or “no” is a simple message for voters.
The justices are campaigning alongside one another, appearing together on podcasts, at town halls and campaign ads. When it comes to the issues shaping the race — fair elections, education, women’s rights — Donohue, Dougherty and Wecht have similar records.
Already, people are worried about the consequences if all three justices lose their retention races. Technically, if a judge loses, the governor can appoint a replacement, subject to senate approval, who would serve until 2027, the next year PA is scheduled to have judicial elections. But DePasquale says “there is zero chance” a pick from Shapiro will get senate approval, especially with the richest Republican in the state — the Main Line’s Jeff Yass — throwing so much money into the race.
“Some people call [the mailer] disingenuous; I call it a lie. That’s how low [Republicans] are going in this campaign.” — PA Democratic Party Chair Eugene DePasquale
That would leave only two Democratic justices and two Republican justices on the court, which would make issuing rulings difficult, if not impossible.
As of the end of September, nearly $7 million had been spent on PA’s Supreme Court judicial retention election. DePasquale expects spending to reach $10 million before the race is over. The funds from the vote “yes” camp are largely coming from attorneys, groups like the ACLU and labor unions. (Dougherty, brother of convicted former union leader John “Johnny Doc” Dougherty, has received the bulk of the support.)
In the “no” camp, outside groups are driving much of the spending. As of early September, the national group Republican State Leadership Committee had spent at least $85,000 on digital ads trying to influence the race, Spotlight PA reported. Groups encouraging voters to vote “yes” have spent or reserved $3.1 million on ads, The Inquirer reported, while those supporting vote no initiatives have spent $1.1 million. One of the groups supporting the vote no campaign is Commonwealth Partners, which is supported by Yass.
Balaban and others expect both groups will ramp up their efforts ahead of election day. The Republican State Leadership Committee and PA GOP did not respond to requests for comments. DePasquale says that Democrats plan to increase ad, text banking, call banking and canvassing efforts.
“I think it’s going to get meaner as we get as we get closer,” Ceisler says. “You can’t spend tens of millions of dollars and it has no effect.”
An end to judiciary nonpartisanship?
Mudslinging, celebrity name-dropping and brutal character attacks used to be reserved for highly contested presidential or senate races of national import. A local judicial retention election — especially one that is purposely designed to be apolitical — shouldn’t be drawing this much negative, partisan attention.
The ugliness surrounding the campaigns in PA is a symptom of a broader political problem: The partisan name-calling popularized by President Donald Trump has infected every level of our politics, including a race where candidates have shed their party affiliations so that Pennsylvanians can judge them solely on their ethics and judicial records. Justices need to be able to issue decisions free from politics. Their job is to interpret state law, not advance a particular political agenda.
The intense advertising surrounding these retention elections threatens our judiciary’s nonpartisanship. Those urging voters to vote “no” don’t have to avoid sensationalism in their advertisements in the same way the justices do. Already, they’ve used emotional images of mothers and children in their mailers and internet ads. Both sides have employed images of shields, urging voters to “protect” the courts. If justices expect partisan attack campaigns, they might feel pressured to rule in partisan ways.
“From this moment on, they’re going to think about politics if they want to serve another term,” Ceisler says.
The three justices on the campaign trail have acknowledged this, stating that at times they issue rulings they don’t personally agree with because they align with what PA law says. Again, it’s not like they have much else to campaign on, given the strict rules that govern how candidates in judicial elections can make their case.
“When I first ran for office I won both the Democratic and Republican nominations in the primary and won on both tickets in the fall,” Wecht said on a podcast from earlier this month. “As far as I’m concerned, there’s no Democratic or Republican result to any case.”
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