On a windy October day in a suburb north of Philadelphia, Republican activist Scott Presler stood outside the Bucks County government center.
Presler and members of his Republican grassroots organization, Early Vote Action, have combed towns across Pennsylvania in recent months, setting up booths stacked with pamphlets and flyers that instruct people on how to fill out their mail-in ballots.
But Presler is not simply working to boost voter turnout in the Nov. 4 election.
Presler is making the pitch to voters to remove three justices on the Pennsylvania Supreme Court: Kevin Dougherty, Christine Donohue and David Wecht.
“These people have been on your Supreme Court since 2015,” Presler said during a conversation with a local GOP chair. Presler declined to speak with a reporter.
“They locked you down during COVID,” Presler continued. “They stole your 2020 election. They gerrymandered your maps, and they’re anti-women because they allowed Bill Cosby to go free.”
Each of the justices was originally elected as a Democrat and has staunchly defended the impartiality of their rulings.
“The moment we were elected — when we put that black robe on — we hung up that partisan title, and we have watched ourselves accordingly,” Dougherty said, during a rare public forum in September at a northern Philadelphia school auditorium.
The nonpartisan Pennsylvania Bar Association is supporting all three justices for retention.
And Democratic Party officials, including Pennsylvania’s popular governor, Josh Shapiro, have lined up to back them.
“They’ve proven we can count on them to protect a woman’s access to abortion and birth control and stand up for all our freedoms,” Shapiro said in a video ad. “Vote yes for a Supreme Court that protects us.”
Abortion rights have taken the lead in the pro-retention campaign, as the U.S. Supreme Court’s 2022 ruling overturning Roe v. Wade has put the power of deciding abortion access into the states’ hands. The political arm of Planned Parenthood is supporting the judges with a six-figure mailer campaign.
Pennsylvania’s Constitution requires state Supreme Court justices to run in partisan elections to win a seat. Then they are subject to a retention vote every ten years. On the back of this year’s municipal election ballots, voters will see a simple “Yes” or “No” choice for each justice, asking whether to keep them on the bench.
Judges elected as Democrats hold a 5-2 majority on the court over their Republican counterparts.
Unprecedented attention
State supreme court elections used to be quiet affairs. A Supreme Court justice hasn’t lost retention in the commonwealth since Russell Nigro in 2005, and political analysts widely regard his removal as attributable to voter anger over a pay raise passed by the General Assembly earlier that year.
But as donors and activists realize just how many decisions state supreme court justices make on issues from education and voting access to abortion and labor law, these races have grown louder.
“There was a successful no vote in a retention election in Oklahoma last year (and) in Illinois back in 2020, so these races are getting more attention in this polarized environment,” said political scientist Stephen Medvic, of Franklin & Marshall College in Lancaster.
Earlier this year, President Donald Trump and tech billionaire Elon Musk attempted, but failed, to flip the liberal majority on the Wisconsin Supreme Court.
Medvic’s colleague, Berwood Yost, is the director of F&M’s Center for Opinion Research, which polled voters on Pennsylvania’s retention election.
Yost and his researchers found Democrats largely said they’d vote in favor of the justices, while Republicans leaned toward opposing them. Yost’s poll also showed that half of the respondents were undecided.
“Despite the importance that our courts play, normally most voters don’t even turn out,” Yost said, noting odd-year elections typically draw about one-third of registered voters to the polls. “I think it’s going to be higher this year because of the spending.”
More than $8 million had either been spent or was committed to be spent on the retention question as of mid-October. Medvic and Yost agree that’s a record for a retention election in Pennsylvania.
What’s the message?
The “no” campaign is spending big on mailers and digital ads painting the justices as too “radical,” highlighting a range of past rulings from ones that upheld the state’s mail-in ballots to the court’s support for government-ordered lockdowns during COVID.
State Republican Party Chair Greg Rothman, a Cumberland County state senator, claims the judges’ rulings were politically charged.
“We think judges should be judges, and legislators should legislate, and that the courts should not be making the laws or inserting themselves into public policy where the Legislature could act instead,” Rothman said.
During the justices’ forum in Philadelphia, Donohue stressed their independence from party affiliations after they’re first elected.
“Our personal views, our political views, our religious views, are left on the wayside,” Donohue said.
Ads funded by Pennsylvania’s richest man, Jeffrey Yass, criticize the judges’ 2018 ruling that forced a redrawing of the state’s congressional map.
Wecht took particular issue with those ads when asked at the forum.
“We took away a prized possession of some highly partisan actors in our system who had created a flamboyantly gerrymandered map,” Wecht said.
The 2018 ruling resulted in a new map chosen by the state Supreme Court that reversed the number of Republican members of the U.S. House from 13 to 9. Following gains in 2024, Republicans currently outnumber Democrats in the House delegation, 10 to 7.
The mention of the redistricting ruling in this year’s retention campaign comes amid a nationwide push, prompted by Trump but eliciting a responding movement from Democrats, to redraw their congressional maps to politically benefit whichever party has majority control of the state government.
Pennsylvania’s divided Legislature has prevented such a redistricting fight in the commonwealth this year.
Losing their seats
If a justice loses retention, then the governor would appoint a replacement to fill that seat until the next odd-year election. Any appointee would need the Republican-led Senate’s approval.
A loss from all three justices would leave the court tied between two liberal and two conservative judges. Yost and Medvic predicted that the outcome could stall the court for years, anticipating that Shapiro and Senate GOP leadership would disagree on nominees.
Shapiro, Senate Republicans and House Democrats are in the middle of a months-long budget impasse with no end in sight.
Read more from our partners at WITF.