State Courts Become a Battleground for Voter Suppression

There have been 253 bills in 43 states to restrict voting all over unfounded allegations of rampant voter fraud. The real battle will take place in our courts, particularly in state supreme courts. To accomplish this, Republicans across the country all have come up with the same game plan, stacking state supreme courts. The only states that hold a Republican majority have tried this. Arizona, unfortunately, has not been spared. Gov. Ducey signed legislation (H.B. 2537) expanding the Arizona Supreme Court in 2016. At the time, Gov. Ducey promised Arizonans “swift justice” signing the bill he also promised.

FALSE: A larger court would be more efficient. Former Arizona Supreme Court Justice Scott Bales, who served as chief justice said, “we weren’t unable to do the work that we had when the court was only five justices.”

At the time, Chief Justice Robert Brutinel said, “the increase to seven justices from five made the high court less efficient because it now means more justices and their law clerks review draft opinions before they’re issued.” Brutinel shared Bales’ assessment that five justices would be able to handle the workload.”

FALSE: An expanded court would issue more opinions. Of the four justices Ducey has appointed to the court through a combination of judicial retirements and expansion, all have been conservative. Arizona Republican State Senator J.D. Mesnard said at a committee hearing that “expanding the court from five to seven justices would spread that power out to more people.”

FALSE: A bigger bench would allow for more diversity. Then-State Sen. Katie Hobbs, D-Phoenix, contended his real motive was not efficiency or diversity but to “stack the Supreme Court” with conservative picks. Ducey said at that time that he aims to appoint “constitutional conservatives,” who support small government and individual rights, and “textualists,” who interpret laws based on their literal meaning. Ducey left out that when it comes to expanding state courts, most states specify bench sizes in their constitutions, meaning that, unlike in Arizona, expansions could only happen with voter approval.

Governor wants a conservative court

When Governor Ducey visited Oro Valley, I asked him why he wanted to remove Arizona and four other Western states from the jurisdiction of the 9^th Federal Appeals Court in San Francisco. He replied that he wanted “a more conservative court for Arizona and four other states.”

This, of course, was completely different from what his spokesperson said a few months before in the paper “that the Governor only wanted to have a different appellate court for Arizona to speed court cases up for the district.” It seemed strange at that time that Gov. Ducey thought increasing the Arizona Supreme Court would increase efficiency, create more diversity and issue more options. But for the 9^th federal appeals court, he wanted a separate conservative court for Arizona and four other states.

Unfortunately, Arizona is not the only state that hopes to restrict voting by stacking their state supreme courts and making sure all challenges to their gerrymandering, motor voter laws, and ballot harvesting are thrown out.

Across the South, Republican lawmakers are changing election laws, expanding the number of justices, adding term limits, and challenging appointments to create high courts more likely to uphold their legislation. Meanwhile, outside political groups are spending millions to help conservatives win high court seats.

• North Carolina: The Republican-controlled Legislature changed the way incumbent State Supreme Court justices are elected. Previously, incumbents faced contested elections every eight years, but the new law altered the process and how the Governor appoints them.

• Georgia wanted to expand the seven-member court by two seats. The state House voted in favor of the proposal despite the fact there was no credible substantive case on the merits of expanding the Georgia Supreme Court’s size.

• Florida State House members passed a bill on Feb. 24 seeking to impose 12-year term limits on Florida Supreme Court and Court of Appeals justices.

In states where voters elect Supreme Court judges, millions of dollars are being spent on reshaping the courts for years to come. Spending by national groups overwhelmingly favors judges on the right and is primarily aimed at maintaining or improving the courts’ responses to Republican and corporate interests

Republicans in the Arizona State Legislature have introduced 22 bills this session that restrict voting or increase the Legislature’s power over elections. It still comes down to one thing. How will the courts decide?