Election Briefing: the Ohio Supreme Court
The Majority is On the Line—With Huge Stakes for Democracy and Freedom
The stakes could not be higher.
A Cleveland.com column yesterday summarized it so well, so I’ll quote from it at length, then add my own take after:
“The radical right has unfinished business in Ohio. It needs to eliminate any vestige of thoughtful deliberation from the Ohio Supreme Court.”
“the folks in charge of one of the nation’s most morally bankrupt states determined to rid Ohio of Supreme Court justices who don’t believe a judge’s highest priority should be to whatever the MAGA faithful desires.”
“Right-wing extremists, gun manufacturers, polluters and corporate Ohio will spend millions attacking the three Democratic candidates with make-believe arguments that appeal to the white-rage majority that has infected the state’s politics.”
“The court has blatant ethics problems, and any threat to the legislature’s gerrymandered power scares the heck out of them [the legislature].” [My quote]
“Donald Trump twice won Ohio by eight percentage points, outcomes that speak volumes about the state’s voters. Another lopsided Trump win on Nov. 5 might just result in an Ohio Supreme Court that’s an even bigger threat to the state’s future than its loathsome legislature.”
Wow. That’s a lot!
And here’s the problem. It’s all true. Every word of it. Believe all of it.
Read the entire column HERE.
Now let me put my own frame on it.
Three seats on the Ohio Supreme Court are up this November.
The Opportunity:
If the three Democratic candidates for the Ohio Supreme Court win, we flip the majority to create a 4-3 majority Court that will:
Respect the people of Ohio’s will when it comes to democracy and fair districts
Respect the people’s will when it comes to reproductive freedom, and other issues
Respect basic principles of the rule of law and ethics, in a state mired in corruption
Provide a desperately needed check and balance on an extremist legislature
The Risk:
If we lose these races, we get the opposite. Again, no exaggeration.
As the above column ended: the risk this November is an election resulting “in an Ohio Supreme Court that’s an even bigger threat to the state’s future than its loathsome legislature.”
The Proof:
While these words sound dramatic, this is not idle speculation, folks.
Not wild-eyed predictions.
I’m saying this (like that column wrote it) based on the written opinions that the various Justices have written and/or joined in recent years, and how they’ve behaved as actual Justices. We’re talking pages of receipts.
Just a few examples:
Among the Democratic justices running—incumbents Mike Donnelly and Melody Stewart—we have justices who wrote or joined opinions that: 1) struck down every gerrymandered map the legislature brought them, 2) would’ve disallowed last year’s anti-democracy special election in August because that election itself blatantly violated Ohio statute, and 3) stood up to Frank LaRose from rewriting last November’s ballot language on reproductive freedom, which he later admitted was done in consultation with anti-abortion groups.
The current GOP majority on the Court, on the other hand, sided on the exact opposite of these and other issues. And rather being on a needed check and balance on an out-of-control legislature, the majority has made it clear in their own written opinions that Ohio’s gerrymandered legislature—the nation’s most corrupt—can essentially do as it pleases.
Just consider:
On Gerrymandering, the current majority (which was in the minority back then) wrote opinions (dissenting ones) that they supported the FIRST illegal maps (for both Congress and the legislature) that were drawn. That’s right, they went along with the legislature for every single round of the illegal and highly partisan mapmaking, including the ones that were even more blatantly illegal than the ones we are currently stuck with. And the tone of their dissents was angry—livid that the then-Court majority kept siding with the Constitutional language over the lawless legislature.
On Reproductive Freedom, we have a majority court where at least three GOP members filled out surveys saying that Ohio’s women don’t have a right to privacy (abortion or otherwise) under the US Constitution. One Justice equated abortion and Roe v. Wade to slavery and segregation. The GOP Chief Justice once spoke to an anti-abortion group in Toledo around the same time the Court took up a case involving abortion access in Toledo.
And the candidate challenging Justice Donnelly proudly touts the endorsement of the same group (Cincinnati Right to Life) that asked those survey questions above.
Given all this, I ask you: is this the group you want deciding the meaning of the new right to “reproductive freedom” we worked so hard to enshrine in Ohio’s Constitution?
Knowing that it’s the same majority that allowed an August election to take place even though the plain words of Ohio statute clearly forbid statewide special elections in August?
I sure don’t.
On basic ethics….needless to say, as I’ve covered at length in this newsletter, we’ve seen repeated, eye-opening ethical issues with this Court—including a son (DeWine) ruling in his own dad’s cases (on gerrymandering, no less), a Justice (Deters) ruling on a case where he’d been counsel at the lower level (then issuing an inaccurate statement about the proceedings in that case), and a Justice (Deters) being the swing vote in a decision that hid the public expenses of a DeWine family trip (to the Super Bowl)—even though his own senior law clerk was on that trip! Back to that column for the details:
“In January, the Ohio Supreme Court ruled DeWine’s travel records and expenses for a 2022 trip to the Super Bowl were not public record, citing security reasons. Justice DeWine recused himself from the case. Deters, whose clerk (DeWine’s girlfriend) was on the trip, did not, providing the deciding vote in a 4-3 ruling.”
In a state mired in corruption—desperately in need of accountability—do we want a Court so willing to ignore egregious and familial conflicts of interest to be the final decisionmaker on fraught questions of democracy, freedom, governance and corruption? Let alone other issues that matter?
I sure as hell don’t.
Again, as the column said: this November “might just result in an Ohio Supreme Court that’s an even bigger threat to the state’s future than its loathsome legislature.”
Not one word of exaggeration in that statement.
We. Can. Win.
So that’s pretty sobering, I know.
But I’m here to offer some hope. Not naive hope. Or false optimism. But some data that will give you hope. That we can seize the opportunity and avoid the risk.
Yes, the crooked legislature changed the rules to add party labels to the ballot (History: these were non-partisan races before that — the parties endorsed candidates, of course, but the candidates were careful to stay above that fray, and the non-partisan ballot presentation (amid other non-partisan judicial races) reflected that non-partisan ethos).
The GOP legislature changed the rules because over the time I was chair of the Ohio Democratic Party, our endorsed candidates crushed their endorsed candidates (including two incumbents) in these Court races. Three D-endorsed candidates won three out of four Supreme Court races in 2018 and 2020 to get ourselves the bipartisan majority that struck down their illegal maps. We elected Justices Stewart and Donnelly in 2018, then elected Jennifer Brunner by 10 points in 2020, even when Trump won Ohio by 8. (That was our Wisconsin moment—they knew it, we knew it).
So yes, they were so embarrassed and frustrated and threatened by this that they decided to do something about it.
Run better candidates? No.
Inform their voters better (as we had done)? No.
No, they couldn’t imagine trying to win these elections fair and square. They were shell-shocked, and after 2020 especially, out of ideas on how to change the outcomes through smarter, better campaigns.
Instead, as they often do, they used government power to alter the rules (all while violating the new Court’s orders). They added party labels to the ballot (since they had been failing to inform their own voters about who their candidates were, they figured a party label would solve that problem for them). And they moved the races way up the ballot, just below the other partisan statewide races (same reason—to keep GOP voters tuned in).
So that was their plan—“court reform” (see, they do it without blinking an eye) not based upon public considerations, but using government to make-up for their failures as a party and candidates.
Did it work?
Well, in 2022, they did win all three Supreme Court races. That is true. So it did seem to work.
But at the same time, they won ALL races in 2022. That’s what happens when the top-of-the-tickets loses by 26 points.
And in that context, I want you to take a look at how the Ohio Supreme Court candidates did under the new GOP rules.
As I said, the Governor candidate (named DeWine) won by 26…but the three Democratic Supreme Court candidates lost by…12, 14, and 12.
Which means that even with the terrible turnout of ‘22, and the fact that they were outspent and attacked, these three candidates lost by 12 to 14 points less than the top of the ticket.
They overperformed dramatically.
And that result also tells us something about Ohio voters: they aren’t quite the partisan-driven people the legislature thought they were.
Think about it: when the 2022 Ohio electorate showed up to the polls, a decent-sized number of Ohio voters voted for Republicans for Governor and other statewide offices, but then voted for the Democratic justice candidates (or didn't vote). A number even voted for Governor DeWine, then chose not to vote for his son Pat DeWine only a few spots down the ballot.
To a significant degree, some voters opted for a healthy mix. For some balance. They crossed over. Even though the GOP assumed they never would.
So did their plan to guarantee that voters would vote a party line all the way through the Justice races work? It may appear that way it in a 26-point blowout year.
But if DeWine had won by 7 points in ‘22, you tell me…the same over-performance by those three Justices could very well have meant that all three Democratic candidates would’ve won.
Just like Justices Donnelly and Stewart did in 2018 (overperforming when Cordray lost by 3.5 points).
And just like Justice Brunner did in 2020 (when Biden lost by 8 points).
It’s no doubt harder than it was in 2018 and 2020, but these ‘22 results do make clear there is a path to victory in these races.
Because good candidates can over-perform.
Because some Ohio voters seek a healthy balance.
And of course, because Ohio voters want to end gerrymandering and protect reproductive freedom and the current majority is on the wrong side of both those issues.
So no, all is not lost. Not even close.
What To Do?
So much.
Get to know out three wonderful candidates for the Ohio Supreme Court.
The two incumbents are among the finest, most honorable public servants I’ve ever known. And who already have a clear history of over performing the top of the ticket.
Judge Lisa Forbes, who I met when she ran for and won an appellate seat in Cleveland, is also a phenomenal candidate. As that column wrote: “It’s hard to imagine a more qualified background than the one Forbes presents to voters,” the Plain Dealer/cleveland.com editorial board wrote of her in February.”
SUPPORT them if you can.
Here are their websites:
INSPIRE OTHERS to support them:
share this newsletter so others know
host an event for them (email me back if you want to do so)
And I’ll keep you posted on other ways as well.
Bottom line:
the stakes of these three races are as big as that column suggests;
the candidates on the Democratic side are as good as it gets;
and if the top of the ticket stays relatively close, the ‘22 data shows there remains a path to victory.
PLEASE do whatever you can to help make it happen.
Ohio’s democracy, and our freedoms, and the rule of law of a badly corrupted state, are truly on the line.
Again, please share this far and wide.
People need to know the stakes, know that we can win, and know they can help make it happen.
A modest proposal: restructure the Ohio judicial system using the framework for a proposed Colorado Good Governance Board. I can't post the meme that would explain the concept. More detail on the Colorado Best Democracy FB page. It would make the judiciary more independent of partisan influence, and switch to Single Transferable Vote (STV) elections in Multi Member Districts.
https://www.facebook.com/share/p/oNkooL2SHPv1MVpV/
Good article however are there any donors which is focusing on supreme court races? because It could given a bigger attention.