Capital-Star Q&A: DNC Chair Ken Martin says Pa. Supreme Court election stakes are high

As torrential rain fell in Philadelphia Thursday morning, Democratic National Committee Chairman Ken Martin was preparing to rally labor and ward leaders for a get out the vote campaign in support of three state Supreme Court justices seeking second terms.

Justices Christine Donohue, Kevin Dougherty and David Wecht were elected as Democrats to the commonwealth’s top court in 2015. Under the state constitution, they must win voters’ approval to stay on the bench in a nonpartisan “yes” or “no” retention election. If they’re not retained, their seats would be open in a competitive 2027 Supreme Court election.

Reflecting a national trend toward more politicized judicial elections across the country, as-yet untold amounts of third-party money are flooding the airwaves, internet and mailboxes with ads. They urge Pennsylvanians either to keep Donohue, Dougherty and Wecht as reliable guardians of fundamental rights or to cast them out as activist judges legislating from the bench.

In an interview with the Capital-Star, Martin said lavish spending in judicial campaigns, such as the $30 million that Elon Musk, the world’s richest man, poured into last year’s Wisconsin Supreme Court election, polarizes what historically have been nonpartisan elections. Martin describes it as an effort by conservatives to buy court seats in an end run on democracy.

 James Markley, a spokesperson for the Pennsylvania GOP, said it was “comical” to him that Martin described the conservative-backed “vote no” campaign as an affront to democracy. 

“People going to the polls and voting ‘yes’ or ‘no’ on the justices is the very definition of the democratic process,” Markley said, adding that efforts supporting the justices, such as Democratic Gov. Josh Shapiro appearing in TV ads, have been just as partisan.

Only one state Supreme Court justice has lost a retention election in 2005, when Justice Russell Nigro was voted off the bench in the backlash over the legislature’s midnight vote to give themselves and state judges pay raises. But even that election was low-key compared to this year’s advertising blitz.

“I think what’s different this time is that just about every Pennsylvanian has been touched by the decisions of this Supreme Court,” Markley said. He noted the justices participated in decisions to count mail-in ballots that arrived after the deadline in the 2020 presidential election and to uphold former Gov. Tom Wolf’s COVID-19 pandemic lockdown that shuttered businesses across the state.

“There are still a lot of people who are still really angry about this,” Markley said. “They can go and make a difference so something like this doesn’t happen again.”

Martin spoke with the Capital-Star about why the Democratic National Committee is investing resources to support Donohue, Dougherty and Wecht and how the outcome of the race will affect the lives of Pennsylvanians for more than a decade to come.

(This interview has been lightly edited for length and clarity.)

To begin, why does the party see this as a race to dedicate resources, your resources?

The stakes are very high in these races here. What we’ve seen, unfortunately in recent years, is attempts by far right billionaires to buy Supreme Court seats around the country … so they can do an end around state legislatures and governors and basically the will of the people in terms of direct representation.

It’s easier for them to buy Supreme Court seats than to flip majorities as an example, right? But what they’re doing is they’re then legislating from the bench, which is, you know, obviously unseemly and unheard of in this country … It’s happening now, and unfortunately, we’re seeing it more and more in this country.

And so what does that mean for Pennsylvanians? Well, it means that their rights are under attack. Things like their right to make their own decisions over their health care, for women to make decisions over their body, and voting rights are under attack. Everything from redistricting and education funding and everything else that comes before the courts.

What you want is fair-minded independent judges on the bench who are going to take their job seriously, which is to not legislate or push an agenda, but actually base their decisions on the rule of law and base their decision on legal precedent, not on politics.

What do you see as the immediate and longer-term consequences of the non-retention of any or all of the three justices?

I think that abortion rights in this state would be in jeopardy. I think voting rights would be in jeopardy. I think education funding would be in jeopardy. You know, Pennsylvania has the longest Equal Rights Amendment in the country, and I think that would be in jeopardy.

Again, people have to ask themselves, why are far right conservative billionaires spending the type of money they are to try to buy Supreme Court seats? And it’s very clear, right? It’s because they want to push their far right agenda.

How could this election affect Pennsylvania’s representation in Congress over the next decade?

I think it’s critical. Just a couple weeks ago in the U.S. Supreme Court, there were arguments over Louisiana v. Callais … where it’s fairly likely that they’ll gut Section Two of the Voting Rights Act … around racial gerrymandering. 

Currently, the courts have said “yes,” even as recently as a couple years ago, that Section Two is valid and should be enforced, thereby prohibiting racial gerrymandering, racial redistricting. And now, with that, likely to be struck down in 2032 during the next reapportionment, there will be no guardrails on redistricting. 

Then it will be up to the courts and the state legislatures to decide, absent any federal guidance right or the Voting Rights Act, how they’re going to draw the line. So the import of this court is even more important later than it is now in terms of redistricting. There’ll be no guardrails now, and it will be likely up to the Pennsylvania Supreme Court to rule on these matters. And that’s why who sits on the court really matters.

Do you see Pennsylvania’s Supreme Court having an outsize effect on national politics, depending on which way the balance goes?

Pennsylvania is a critical battleground state and a swing state for both parties, and so anything that happens here, certainly has a huge impact on national politics. But you know, the reason we’re here is … because of what would happen if these justices aren’t retained, and you essentially sell these seats to the Republicans and the conservative movement.

One of my concerns is, if they prevail here, they’re going to take this playbook all over the nation, and they’re going to try to run the same play in every state. We’ve already seen them try that over many years now, and they’re going to continue regardless. But if they’re successful here, they’ll be emboldened, and so we need to fight them each and every step of the way. I’m pretty bullish on our chances here.

I’ve been here a lot over the last eight months that I’ve been chair, and I can tell you, there’s a lot of energy on the ground out there for the vote yes campaign. And the one thing that I think that differentiates the two campaigns here is one is spending a lot of money on TV and mail, and the other is spending a lot of time and money on organizing, getting out there and talking to voters face to face, on the phones, texting, doing the grassroots organizing and having the conversations with voters that are going to matter.

What kind of questions are you hearing from people when you go out door knocking?

Earlier in the year, there was sort of a lot of confusion. People weren’t really paying attention. But you know, given the amount of money and ads and mail and conversations on the doors they’ve been having, most folks at this stage of the game understand what this election is about. 

I think they’re smart enough to understand that if you’re a billionaire, and you’re investing as much money as you are, why would you be doing that? And I don’t think people feel like his argument, or these other folks who are investing in this election, their argument is salient.

Is having an elected High Court is a good thing for Pennsylvanians?

What we’ve seen in the last couple decades now is a politicization of the courts and a politicization of local offices like school boards and county boards and city councils. And there was a day, when I grew up, you didn’t see the type of partisanship involved in judicial races or school board races.

And now, all these races have been politicized, and the amount of money that’s being spent on judicial races, I don’t think it’s what our founders of this country or the framers of the Constitution ever envisioned.

The judiciary is supposed to be completely independent and not involved in politics … so I don’t think it’s right to be honest with you, but that’s not up to me. That’s up to each state and other jurisdictions to decide how they’re going to elect or appoint their judges. But for me, it certainly seems unseemly to me to be honest with you. The fact that they have become partisan, is not a good thing, I think, for our democracy.

Is there a way to put the brakes on it?

Part of it is getting people in Congress who are willing to pass things like the Freedom to Vote Act and John R. Lewis Voting Rights Act. Both of those bills would have actually started to unwind some of what we’re talking about here by creating uniform election laws around the country and … limiting the role of outside dark money in our politics is a big part of it. It’s an interesting question to be honest with you, one I don’t know how to solve.