A highly important but barely noticed judicial election will face Pennsylvania voters this November. Three members of the Pennsylvania Supreme Court are up for retention elections. What are retention elections, and what do voters need to know about them?
In Pennsylvania, justices of the state Supreme Court, the highest court in the commonwealth, are elected in traditional, partisan elections for 10-year terms. Candidates run as Democrats and Republicans, and in 2015, three Democrats were elected to the Supreme Court, tipping the political balance of the seven-member Supreme Court to 5-2 in favor of the Democrats. This Democratic-majority court handed down several impactful rulings, most notably striking down Pennsylvania’s Congressional map for illegal gerrymandering in 2018 and permitting a trial against the unconstitutional structure of the state education system earlier this decade.
Now, those three justices—Christine Donohue, David N. Wecht and Kevin M. Dougherty—are standing for retention. Retention elections are different from traditional elections. Retention elections are nonpartisan, meaning political party affiliations will not appear on any ballots. Further, the justices will not face any opponents. Voters will choose “Yes” or “No” on whether they get to keep their seats on the high court. If voters reject the justices, they will vacate their seats and traditional partisan elections will be held to find their replacements. Pennsylvania Gov. Josh Shapiro would appoint temporary justices to fill the interim.
Justices losing retention elections is exceedingly rare. Since 1968, only one justice was voted out of office, Russell Nigro in 2005. Republican organizers in Pennsylvania are looking to give Donohue, Wecht, and Dougherty the infamy of joining the list with Nigro.
Both parties recognize the importance of the Pennsylvania Supreme Court. The Democratic-led court drew ire from President Donald Trump for pushing back against the President’s claims of voter fraud in the 2020 Presidential election. Republicans have long invested in strengthening conservative majorities in the Judicial Branch, from the United States Supreme Court down to local courts across many jurisdictions. Pennsylvania Republicans feel that with a stronger conservative presence on their state’s highest court, attaining their policy goals, including election law, would be extraordinarily easier. Republican Party fundraisers and activists have been dumping time and money into the effort to get voters to say “No” to the three justices. Getting in their way is the anonymity of retention elections. Justice Donohue, when speaking to an audience of potential voters, noted that only 5% of Pennsylvania voters know about the upcoming retention elections.
Democrats are also investing resources into this race. Ken Martin, the chair of the Democratic National Committee, placed the Pennsylvania judicial elections on the same tier as importance as the two biggest races happening nationally this November, the governor’s races in New Jersey and Virginia. Democrat-aligned groups will be spending three million dollars on Pennsylvania judicial races this election season.
The retention elections are the most prominent statewide elections for Pennsylvania voters; most other races will be local municipal elections. Outside of school board and local government races, the other statewide races are for seats on the Pennsylvania Superior and Commonwealth courts, two higher-level courts that sit below the Supreme Court in the Pennsylvania judicial system. The municipal elections this year are incredibly important for many aspects of day-to-day life for students and citizens. Public safety, education, housing, infrastructure and local taxes are all crucial policy issues for towns and communities. They all often have more importance than national or statewide election results. However, state courts affect their issues too, and voters should still cast their vote in favor of or against Donohue, Wecht and Dougherty. Policy battles are often waged in the courtroom, and voters deserve to have a say in who they trust to interpret Pennsylvania state law.
Election Day is Tuesday, Nov. 4. The last day to register to vote is Oct. 20, and the final day to request a mail-in ballot is Oct. 28. Voters can check their registration status online at vote.gov.
