Background
The Supreme Court of Pennsylvania currently has a 5-2 Democratic majority. [1] The court has been Democratic-controlled since 2015, when Donohue, Dougherty, and Wecht won election to their seats. [2]
If voters do not retain a justice, Governor Josh Shapiro can appoint a temporary replacement until 2027 — with approval from two-thirds of the Republican-controlled Pennsylvania Senate — when an election would be held for a permanent replacement. [3] If all three justices are not retained and the Senate does not approve Shapiro's nominees, the court would be split with two Democrats and two Republicans, which the Philadelphia Inquirer claims could leave the court "unlikely to reach majority decisions and could weaken the voice of Pennsylvania's top court going into the 2028 presidential election, when the swing state could decide the next president yet again." [4]
Since retention elections were established in 1968, only one Pennsylvania justice, Russell Nigro in 2005, has not been retained. [5]
Campaign
The justices themselves are not permitted to campaign; however, they have engaged in a speaking tour throughout the state where they asserted that while the law requires partisan elections, they exercise their judicial power without any partisan bias. [6] The Pittsburgh Post-Gazette found the race to be the state's most expensive retention election in history, with outside groups and candidates having raised and spent more than $8 million as of October. [7]
Deborah Gross, executive director of the non-profit Pennsylvanians for Modern Courts, claimed that the significant spending 'perverts the intent of the retention process' by focusing on party affiliation rather than the justices' records. Talking to the Pennsylvania Capital-Star , Gross said, “[i]f someone is not doing their job properly, if they're not showing up for court, if they're doing bad acts, if they have judicial conduct issues. Those are reasons why someone should not be retained.” [8]
The Democratic National Committee announced a "six-figure investment" into the Pennsylvania Democratic Party to help support retaining the 3 judges, [9] with DNC Chair Ken Martin issuing a statement saying that "[t]he Pennsylvania Supreme Court is on the frontlines of decisions related to voting rights, redistricting, abortion protections" and that "[t]he stakes couldn't be higher." [9]
The state and national chapters of the ACLU say they plan to spend $500,000 on a mail campaign to inform voters about the race “and what it means for their civil rights and civil liberties.” The organization's website does not make an explicit case for or against retaining any of the judges. [10]
Conservative activist Scott Presler told Fox News that his PAC, Early Vote Action, is targeting Bucks County — which voted Republican for the first time in almost four decades — by sending 100,000 text messages as part of a campaign that recognizes Charlie Kirk’s birthday. Pressler also stated that the group are producing stickers that say 'I voted in honor of Charlie' with a "really classy photo" of Kirk with his hands together in prayer. [11]
Multiple PACs affiliated with Republican businessman Matthew Brouillette and funded almost entirely by billionaire Jeff Yass — a registered Libertarian — have spent hundreds of thousands on social media ads, mailers, and text messages opposing retaining all 3 judges, telling voters they should “term limit the woke Democrat Pennsylvania Supreme Court.” [12]
Mailer controversy
The Commonwealth Leaders Fund, a Yass-affiliated PAC, was criticized by the advocacy group Fair Districts PA after releasing a mailer claiming that the “liberal Supreme Court gerrymandered our congressional districts to help Democrats win”. The mailer also featured an outdated image of 2 congressional districts from a map that was drawn up by the Republican-controlled state legislature in 2011 and later overturned for partisan gerrymandering that disproportionately benefitted the Republican Party. [12] [13]
After the mailer controversy was publicized, Pennsylvania Democratic Party chair Eugene DePasquale issued a statement condemning “MAGA billionaires” for funnelling money into the election. [14] In late September, the Pennsylvania Working Families Party organized a protest outside Susquehanna International Group, a financial trading company founded by Jeff Yass, criticizing his involvement in the campaign and urging passers-by to "Vote ‘Yes’, not Yass". [14]
The League of Women Voters of Pennsylvania have declined to endorse for or against retention, though they criticized the leading 'No' campaign PACs for misleading voters by including inaccurate information on their campaign mailers. [15] In 2017, the group argued in a lawsuit that Republican-gerrymandered maps violate the state constitution’s guarantee of free and fair elections. The state Supreme Court, which included the 3 justices up for retention, ruled in favor of the claim. [7]
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