How Do State Supreme Court Elections Work? (Plus What to Watch For This Year)

So far this election year, we’ve previewed the gubernatorial, state legislative, and ballot measure elections. In addition to the handful of other statewide offices up for election, state supreme court justices are often overlooked on state ballots. While federal judges are appointed and are not directly subjected to voters on election day, the methods of selecting judges in the states vary substantially by jurisdiction. 

In 12 states, state supreme court justices are appointed by governors or state legislatures (a nominating commission may also be involved). In those states, justices are not up for election at any point. But in 38 states, justices to the state’s highest court must either run for election to the job against other candidates or they must go to the voters in a retention election, which is a yes-or-no vote to keep a sitting justice on the court. Of the 38 states where supreme court justices must face voters, 18 states hold partisan elections where only one nominee is put forward for each major political party. Candidates in 13 states run in non-partisan elections where party affiliation is not listed on the ballot. And Michigan uniquely combines partisan candidate selection with a nonpartisan general election.

This year, 83 of the 344 state supreme court seats are up for election in 33 states. State supreme courts are deciding key hot-button issues, particularly for reproductive health and redistricting cases. As a result, recent state supreme court elections have shattered spending records — over $100 million in 2022, which is nearly twice the spending in any prior midterm cycle.

State supreme court races to watch this year include Michigan, where two seats are up for election with liberals holding a 4-3 majority. If conservatives win both seats, they’d flip the majority going forward. Republicans also hope to replace two retiring justices in Montana with more conservative jurists. Republicans have criticized the Montana Supreme Court for upholding abortion rights in the state and overturning a law that would have barred election-day voter registration. And in Ohio, where lawmakers recently adopted a rule to place party affiliation next to judicial candidates' names on the ballot, three justices are running for reelection this year. Two of those seats are held by liberal justices and the third by a conservative justice. Conservatives currently hold a 4-3 majority on the Ohio Supreme Court, so Democrats would need to win all three to flip the majority. 

A change in majority on a state supreme court can be significant for public policy and the political makeup of the state. For example, judicial elections recently shifted a 4-3 liberal majority to a 6-1 conservative majority in North Carolina. The new Court majority quickly reversed recent decisions on redistricting and a voter identification law. In Wisconsin, after Democrats flipped a seat on the Court last year, the new liberal majority struck down a Republican gerrymander, leading to new maps that will provide competitive Assembly elections for the first time in over a decade.

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This article appeared in our Morning MultiState newsletter on June 3, 2024. For more timely insights like this, be sure to sign up for our Morning MultiState weekly morning tipsheet. We created Morning MultiState with state government affairs professionals in mind — sign up to receive the latest from our experts in your inbox every Tuesday morning. Click here to sign up.