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Filed 8:00 p.m.
11.06.2020

“Law and Order” Still Reigns in State Supreme Court Elections

A Nevada state supreme court candidate was one of very few nationwide to run on a message of reform. Most campaigns leaned on “tough on crime” strategy yet again.

Defense attorney and state assemblyman Ozzie Fumo spoke at a hearing in Clark County District Court in 2013 in Las Vegas, Nev. Ethan Miller/Getty Images

The campaign ad starts in a familiar way: grainy, black-and-white images set to ominous music, then a flash of bright red text. But the 30-second TV spot, paid for by Nevada state supreme court candidate Ozzie Fumo, a defense attorney and state assemblyman, is anything but ordinary.

“Doug Herndon committed prosecution misconduct,” the narrator alleges of Fumo’s opponent. “He hid evidence that caused an innocent man to spend 22 years in jail.” The ad focuses on Herndon’s role in prosecuting Fred Steese, who was wrongly convicted of murder despite evidence showing he was in another state at the time.

An ad like Fumo’s, criticizing a candidate for keeping someone in prison, is practically unheard of in state supreme court elections. Judicial hopefuls are often maligned for being too soft on crime, or for letting sexual offenders off easy.

An ad paid for by Nevada state supreme court candidate Ozzie Fumo highlights the role of his opponent, Doug Herndon, in prosecuting Fred Steese, who was wrongly convicted of murder.

But the ad didn’t work—Fumo lost by 10 points to District Judge Herndon. Across the country, being tough on crime remains the primary line for many judicial campaigns. And that political pressure extends beyond Election Day—research shows that elected judges are more likely to hand down harsher sentences and uphold the death penalty in an election year.

With the exception of Fumo’s campaign, this year’s nationwide crop of state supreme court races looked much like they always have—expensive, dark-money-filled contests between political groups trying to prove their candidate is the most merciless toward violent criminals. The tone of the elections stayed the same, even after a summer of mass protests about racism in the criminal justice system. And these state judicial races are increasingly an outlier, since prosecutorial elections and even some sheriffs’ races have started hinging on progressive reform.

This year in Michigan, for example, the state Chamber of Commerce hailed judicial candidate Mary Kelly for locking up a predatory bus driver in one ad, contrasting footage of a child riding a bike with a clanging cell door. In Illinois, a dark money group called the “Clean Courts Committee” asked “WHAT KIND OF JUDGE RELEASES CHILD RAPISTS?” Illinois Justice Thomas Kilbride ran footage of him fist-bumping a group of all-White, all male law enforcement officers. The Ohio Democratic Party called out two judges for letting “abusers and their enablers off the hook.” And in North Carolina, a Paul Newby supporting banjo-player sang “criminals best beware” in one TV spot, while police with hounds chased masked thieves through a field.

Staff at the Brennan Center have been monitoring ads in judicial elections for over 20 years. “[We wondered], would the national reckoning over our criminal justice system finally find its way into state supreme court elections?” said Douglas Keith, who works with the center’s Democracy Program. “By and large the answer is no. The worst cliches of campaign tactics from decades past in other contexts are just really sticky in judicial elections.”

An ad paid for by a dark money group called the "Clean Courts Committee" attacked Judge David Overstreet, who ran for the Illinois State Supreme Court.

It’s hard to say whether these messages won elections, since many races had “tough-on-crime” rhetoric coming from both sides. But there’s evidence these messages trickle down into judges’ behavior on the bench. “The more frequently television ads air during an election,” a 2015 analysis showed, “the less likely state supreme court justices are, on average, to rule in favor of criminal defendants.”

While state supreme courts aren’t responsible for meting out original sentences in criminal cases, they are called upon to rule on contentious criminal appeals. They also rule on civil appeals and are often the deciding factor for disputes over legislative redistricting, which draws significant political spending for an-otherwise down-ballot race.

Many of these ads are paid for by political action committees that don’t have to disclose their donors. The groups use names like “Protect Our Kids” and focus on judges’ rulings in criminal cases, though they are often funded by business interests or political groups with a stake in civil decisions.

Overall, it appears that less money was spent on TV ads in state supreme court elections this year than experts predicted. Some of that money might have gone to online advertising, which is harder to track. But races in states like Ohio, Illinois and Michigan still saw multi-million dollar spending on TV ads.

And the soft-on-crime attacks weren’t just from dark money groups. In Ohio, candidates’ own campaigns, the state Democratic party and the Republican State Leadership Committee (a national organization and high spender in such races) all paid for ads criticizing an opponent’s decision in a criminal case. Two ads were so misleading the state bar association called for both sides to take them off the air.

“Rhetoric like this serves to erode public confidence in our system and perpetuates what we believe to be widespread misperceptions about the role of judges in our system of Government,” wrote Paul Hervey, chair of the Ohio State Bar Association. “It is wrong and a disservice to the voters of Ohio to in any way suggest that any of the candidates for Supreme Court this cycle are on the side of child predators.”