By Ben Solis
Gongwer News Service
Just because the Democratic Party has more money and has had recent success in open seats for the Michigan Supreme Court, doesn’t mean the election is wrapped up already for its 2024 nominees, those watching the contest closely said.
Across several interviews, leaders from business and legal organizations, attorneys and strategists said the race remains tight for the open seat created by Justice David Viviano’s pending retirement. The candidates in that race for a full eight-year term are Rep. Andrew Fink (R-Hillsdale) and attorney and University of Michigan professor Kimberly Thomas.
Although some said the tide of the issues at play in the election – reproductive, civil and voting rights – clearly lean in favor of Thomas, others said voters care most about whether a candidate understands the role of being a justice well, and if they can communicate that understanding to voters on the ground.
At present, Democratic Party nominees Thomas and Justice Kyra Harris Bolden, running to complete a partial term, have been able to message on those key issues in statewide advertising with the help of liberal groups, which have flooded their campaigns with cash to get on the airwaves.
The Republicans in the race – Fink, who faces Thomas for the open seat, and Branch Circuit Judge Patrick O’Grady, facing Bolden for the partial term – haven’t been able to catch up to their liberal counterparts in terms of funding or spending, and have had a serious absence of advertising championing their credentials in digital and on TV.
So far, spending by or on behalf of Bolden and Thomas in television, digital and radio advertising has been essentially $4 million to zip for Fink and O’Grady. There’s another $1.6 million in reservations for the Democrats yet to run. Only finally this week did some advertising get reserved for Fink and O’Grady, about $161,000 by the Michigan Farm Bureau in radio ads.
That could change as other groups who have endorsed or supported Fink and O’Grady step in to help fund them and potentially get ads touting the candidates out on the air. Michigan Republican Party Chair Pete Hoekstra said earlier this month he anticipates significant spending to launch helping Fink and O’Grady.
Even with those factors, the race for Viviano’s seat remains a tossup, some said.
Asked if the race was already in the bag for Bolden and particularly Thomas, attorney Mark Brewer, a former chair of the Michigan Democratic Party, said that would be taking the year’s politics in play for granted.
“Nobody should take anything for granted here, but it’s the dynamic that is now very different,” Brewer told Gongwer News Service.
As for the money advantage, Brewer said having a campaign flush with cash doesn’t necessarily portend a win. It was a matter of spending that money intelligently and candidates communicating to voters that the bench would be fairer with them on board.
Thus far, Brewer said the Democratic nominated candidates were outperforming their Republican nominated rivals on that front.
Despite the lopsided advertising situation, leaders from organizations who have endorsed the Republicans, like the Michigan Chamber of Commerce, told Gongwer that the race for the open seat, and even the partial term seat currently held by Bolden, can still be won on the issues and through voter engagement.
The questions then become: how difficult is it to win an open seat versus unseating an incumbent? And why have Democrats been able to secure those seats more frequently within the past decade? And what can history predict about the outcome of the 2024 contest?
As a rule of thumb, open seats are rare and only emerge if a justice decides against reelection, as was the case with Viviano, or reaches the constitutional age limit of 70 years old, prohibiting them from running for reelection.
Incumbent justices have enormous advantages when seeking reelection, and beating an incumbent happens roughly once every 15 years, on average, Brewer said.
“I can count on one hand the number of incumbent justices that have been defeated since the 1980s,” Brewer said. “It can be done, but in terms of impact and the ability to win a seat, an open seat is just so much easier to win. That’s why the stakes are so high when it’s an open seat.”
Just two incumbents have lost in the past 40 years: Justice Clifford Taylor in 2008 and Justice Kurtis Wilder in 2018.
If a particular candidate can win one of those open seats, they then become an incumbent with a much easier path to be reelected eight years later when their term is up.
In 2020, Justice Elizabeth Welch was nominated by the Democratic Party to run for an open seat left vacant by former Justice Stephen Markman reaching the age limit. Welch eventually won alongside former Justice Bridget McCormack, who sought reelection to her seat on the bench.
Collectively, they faced Republican-nominated candidates Mary Kelly and Court of Appeals Judge Brock Swartzle, who were defeated in the general election that year. Not only did the Democrats hold their incumbent justice in McCormack, but they gained a seat, flipping high court from a conservative majority to a liberal majority – a first for the court in decades.
The 2022 race demonstrated the advantages of incumbency. The liberal Justice Richard Bernstein and the conservative Justice Brian Zahra were both up for reelection and appeared as incumbents on November ballots.
The nominated challengers were Bolden and attorney Paul Hudson, who came in third and fourth, respectively, behind Bernstein and Zahra, who both retained their seats. Bolden was within 2 percentage points of Zahra but couldn’t overcome his incumbency advantage.
Bolden was later appointed to the bench by Governor Gretchen Whitmer when McCormack decided to resign from the bench before her term was over.
She now holds the incumbency by appointment advantage, but the 2018 race for the Supreme Court showed that advantage doesn’t always ensure victory.
That year, current Chief Justice Elizabeth Clement was up for reelection, as was Wilder, who had been appointed by then Governor Rick Snyder a year earlier to fill the shoes of retired Justice Robert Young Jr. Wilder, who was then a Court of Appeals judge, completed the rest of Young’s term and was seeking a full eight-year term on the court.
Clement was appointed by Snyder in 2017 to replace then Justice Joan Larsen, who was appointed to the 6th U.S. Circuit Court of Appeals by former President Donald Trump.
In 2018, the Democratic Party nominated attorneys Samuel Bagenstos and now Justice Megan Cavanagh, the latter of which hails from the Cavanagh political dynasty – her father Michael Cavanagh served as the chief justice of the high court in the early 1990s and her uncle, Jerome Cavanagh, was one of Detroit’s most popular but later controversial mayors.
Despite his advantage as an incumbent, Wilder lost the race to Cavanagh, even as Clement kept her seat.
In 2014, Cavanagh’s father announced his retirement, leaving a seat open on the bench. That year, Zahra was an incumbent running for reelection to serve an eight-year term. Justice David Viviano was running as an incumbent to fill the remainder of his term after being appointed by Snyder to fill a vacancy created by the Justice Diane Hathaway’s resignation.
Bernstein, an attorney at the time with his family law firm, and Judge William Murphy were nominated by the Democrats, whereas Zahra and Court of Appeals Judge James Redford were nominated by the GOP.
Zahra won the lion’s share of the vote total in a five-way race, but Bernstein sailed to victory 8 percentage points ahead of Redford to win a seat on the bench.
In 2012, McCormack was nominated by the Democrats in the race to replace former Justice Marilyn Jean Kelly, who was prohibited from seeking reelection due to her age. Markman sought and won reelection to his seat, but McCormack bested her challengers to replace Kelly.
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Dems dominated due to party structural changes
Years before voters started laying the groundwork for the current liberal high court majority, the bench was dominated by appointees from former Governor John Engler.
At the time, the Democratic Party wasn’t paying that much attention to judicial races.
Brewer said that changed when he was chair, as the party sought to undo some of the “damage” of the Engler court.
“Whether it was civil rights, voting rights, environmental rights, consumer rights, I mean, they were just awful,” Brewer said. “I tried to start to change the culture of the party to pay more attention to these races.”
Several outcomes flowed from those efforts, Brewer said. The party created an earlier endorsement convention, which allowed its consensus candidates to start statewide campaigns and fundraising efforts prior to the party formally nominating them in August.
“You can’t run an effective statewide campaign if you’re not nominated until the end of August. It’s just not possible these days,” he said. “So, really embedded in the culture of the Democratic Party now is this idea that we need to reach early consensus on candidates, and that helps every candidate.”
That culture shift was apparent this year, as the Democrats had very early consensus on Bolden and Thomas, which meant they were able to get their campaigns up and running, raise money, travel the state and focus on the general election, knowing they were going to be nominated in August.
The Republicans did not hold early endorsement conventions this year due to party infighting and a lack of clarity on who was the rightful party chair. A nominating convention was held in August, in which Fink and O’Grady became the nominees for the 2024 race.
Brewer said a lack of early consensus on the GOP side may have disadvantaged Fink and O’Grady, but particularly helped Thomas in running for the open seat.
The overall disarray in the Republican Party also created funding challenges in the partisan races this year, not just the nonpartisan Supreme Court race. Contrast that with the organizational advantage of the Democrats, which has allowed them to raise and spend more money.
“A lot of this is due to the Democratic Party’s work and the candidates’ work, but the Republicans have dug themselves a real hole by nominating people late and not having the resources,” Brewer added. “It’s a complete turnaround from the Engler era.”
Jim Holcomb, president and CEO of the Michigan Chamber, agreed that the Democratic Party’s structure over the last few cycles has been stronger than the Republican Party’s in the Supreme Court races and have had a better go at turning out voters and educating them on the issues – including the basics of finish the ballot on the nonpartisan backside.
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Dem Supreme Court candidates also winning on the issues
The court’s ideological shift in recent years also tracked some of the ideological shifts in Michigan’s typically purple electorate, said Merissa Kovach, political director with the ACLU of Michigan.
“We have seen, objectively, in the last decade or so, an ideological shift in the court over the last several years, and we’ve seen that in the most recent elections,” she said. “As folks step off of the court, those candidates who are nominated by the Democratic Party on the ticket tended to be more favorable to voters.”
The race for the Supreme Court is inherently nonpartisan, but the Michigan Constitution’s call for those candidates to be nominated by the political parties often skews the race through a clear political lens.
As candidates often talk about their judicial philosophies, those philosophies can be viewed as the potential political leanings and biases they might have toward key issues like reproductive rights, civil rights and voting rights.
Bolden, O’Grady and Thomas discussed their philosophies in a recent forum hosted by the League of Women Voters. Fink discussed his judicial philosophy in an interview with Gongwer before the August nominating convention.
With those lines drawn, even in a nonpartisan race, groups like the ACLU of Michigan have been working to ensure voters understand where the candidates stand on rights issues.
The ACLU in September announced a plan to spend $2.3 million on an education campaign around three key Michigan House races and the Supreme Court contest – with the lion’s share of that funding going toward the high court.
Kovach said then that campaign was nonpartisan and did not favor any of the candidates, but that it would note their clear difference on issues like abortion and civil liberties issues.
On the ACLU’s national website, the group notes that Bolden and Thomas have both been endorsed by groups supporting the legal right to an abortion. The Michigan chapter’s website also notes various issues the high court recently ruled on protecting various rights near and dear to the group.
Voting rights and reproductive rights were protected by the Supreme Court when it decided to place the Proposal 2 and Proposal 3 of 2022 on the ballot. The court in 2022 ruled discrimination protections in the Elliott-Larsen Civil Rights Act applied to LGBTQ people.
A recent court rule issued last year required all state court judges and their staff to use a person’s chosen pronouns and names if changed, a big win for nonbinary and transgender people who engage with the court, including attorneys. This year, the court ruled that the adopt and amend scheme by a previous state Legislature was unconstitutional, protecting the right to direct democracy without interference from opposition lawmakers.
The ACLU of Michigan does not say on this webpage which of the candidates in the 2024 race would align with those decisions, but what do those rulings have in common? They were all decided by the high court’s liberal majority.
Reporters asked how the group can call the initiative nonpartisan when it was supporting rights issues that are typically in the ideological wheelhouses of Democrats.
Kovach said the ACLU has championed those rights for a long time, and didn’t view those issues from a partisan lens. Kovach said during its original announcement that the ACLU has championed those rights for a long time, and didn’t view those issues from a partisan lens.
In an interview with Gongwer, she clarified that protecting reproductive rights remains the ACLU’s top issue and has been so since the organization’s inception.
Kovach said she could only speculate on why Michigan voters have tracked with support for those rights in recent years, but a real shift in Michigan’s electorate and their awareness of that issue was her immediate observation.
“Fifteen years ago, what we knew was that the right to abortion was extremely popular, however, I think the sense was among voters that it was a protected right because of Roe v. Wade,” Kovach said. “It didn’t need to be top of mind when voting because we had federal protections. And that was good.”
Even as the group worked with Democratic legislators to shore up reproductive rights, few were bold on the issue and spoke about it front and center, Kovach said.
Waves of attacks on abortion and reproductive rights that ramped up in 2019 led to the fall of Roe due to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
The issue now reigns in the minds of many voters, and also politicians running on protecting those rights.
Much of the messaging around Bolden and Thomas has been in the vein of protecting the Supreme Court’s ruling on the issues and respecting the constitutional amendment that made reproductive freedom the law of the land in Michigan.
“I don’t think that’s necessarily just the party taking the lead there. I think they are taking cues from voters who feel abortion has always been a very important issue,” Kovach said. “It’s deeply personal, but I think because it was not under threat, it just really wasn’t rising to the forefront.”
As the Democratic candidates and their allies have been messaging on those issues, the GOP candidates have also been messaging on issues that they believe will help them win over voters in 2024.
Both Fink and O’Grady described themselves as potential rule of law justices, with Fink going as far to describe himself as a constitutional originalist. His main argument has been the current bench does not have the letter of the law and the meaning of the text of relevant laws at the forefront in its decision making.
“Instead, it seems to me that left-wing policy priorities are at the forefront of the resolution of the cases,” Fink told Gongwer in August.
The argument clearly resonated with Republican delegates who gave him the nod at the party’s summer convention, but it’s unclear if the call for greater balance or a complete rebalancing of the court’s majority can top a hot button issue like reproductive rights.
“Their candidates are both not just (anti-abortion), but extremely so,” Brewer said. “They’re both endorsed by Right to Life. This climate where choice has become such big issue, they already started out behind. They just start out in a terrible issue position because of the type of candidates (the GOP) nominated.”
There’s also a potential gender advantage there, Brewer noted, with the Democrats nominating two women as their candidates and the GOP nominating two men.
Holcomb said those issues have made it a bit of an uphill climb for the Republican candidates to cut through the clutter. He also said that Fink’s argument can and will resonate with voters.
“There’s a lot of people who look at the court and say, ‘I want to the court to be a good umpire. I want you to call balls and strikes,’” Holcomb said. “They want judges who respect the separation of powers. That the Legislature and under the Capitol dome is where policy should be debated. When you get to the court, it should be about the rule of law. … It shouldn’t be about legislating from the bench.”
Talking to voters directly about those issues is the best way to get those arguments to start resonating.
“I want to hear about ethics on the court, and ethics to me is respecting the separation of powers, the role under our Constitution for the judicial branch and making sure they adhere to that,” Holcomb said. “We don’t need a Super Legislature in black robes. What we need is an impartial arbiter of the law.”
Brewer said much the same, saying most voters, whether they consider themselves conservatives or progressives, and especially attorneys, want justices who will be impartial and fair when they present their arguments before the bench.
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Dems continue to have money and spending advantage
Face-to-face voter interactions may be a key strategy for the both the Democrats and Republicans in the race, but it’s hard for candidates to get their names out there without smart advertising, Kovach said.
That becomes even more difficult when the money just isn’t there for one side of the race.
“I think it’s the unfortunate fact of campaigns and elections these days. It’s so expensive to get your message out there. And what’s unique about the Michigan Supreme Court is, it has traditionally been – as with all our judgeship races – below the radar,” Kovach said. “They’re not as well recognized. They’re in the nonpartisan section of the ballot. There’s less education out there on what the impact of the court has on everyone’s day-to-day lives in Michigan, versus some of the other, more partisan races on the ballot.”
Republicans will have an uphill climb to get their messaging out based on post-nominating convention campaign finance reports.
Democratic candidates were far ahead in terms of cash on hand about a month out from the November general election.
Thomas had $168,883 cash on hand, and Bolden had $261,903 cash on hand, giving the liberal candidates a combined $430,768. Bolden raised $171,740 during the reporting period and $1.31 million for the cycle thus far. Thomas raised $180,103 in campaign contributions during the reporting period and a little more than $1 million over the course of the election cycle.
Fink and O’Grady were behind. The incumbent representative had $25,928 cash on hand and O’Grady had $56,051, bringing the GOP candidates to a combined $81,979 cash on hand. Fink raised $60,390 during the post-convention period and $160,647 overall through the cycle.
O’Grady raised $82,049 during the reporting period and $103,839 over the election cycle.
AdImpact data shows that from September 1 through the election, Thomas and Bolden and groups supporting them have spent or reserved $5.7 million on advertising. Fink and O’Grady have reserved nothing.
Leadership at the top affects how much money races in down ballot and in nonpartisan races have to spend, said John Sellek of Harbor Strategic.
“When you have a Republican governor at the top, that always means there’s a lot more fundraising that takes place,” Sellek said. “The Republicans are showing what happens when you don’t have a Republican governor at the top of the ticket, but also when the party selected a complete disaster as its chair.”
Sellek was referring to the selection of former MIGOP Chair Kristina Karamo, who was ousted this year and replaced with Hoekstra after a brutal intraparty fight. Karamo’s alleged mismanagement of the party was a key reason for her ouster.
“It set the party back a long way, and I think Chairman Hoekstra made a valiant effort to get things back on track,” Sellek said. “But there’s no way that he was going to be able to raise the kind of funding to match the Democrats this time around.”
With Trump on the ticket, that could be different, but it will take an effort from him and other top Republicans to turn out low propensity voters and make them interested and educated enough to flip the ballot to the nonpartisan section and make Republican-nominated
selections.
Sellek noted that Trump came out in support of O’Grady recently, so that could help.
That said, Sellek said he wasn’t convinced the spending thus far for the Democrats will be as impactful as they might believe.
“Even though I know that Representative Fink and Judge O’Grady would take a $2 million media buy right now, like the Democrats took from the ACLU,” Sellek said. “When you match that up to the noise that’s in the atmosphere caused by the presidential race, the U.S. Senate race, the congressional races, that barely registers, even at the congressional level, that amount of money.”
To burn in one message in the Detroit media market costs about $2 million, Sellek noted, and the cost of that is accelerating rapidly.
“TV stations are having the times of their lives,” he added. “Even when the ACLU announced that $2 million buy, I know they said they were going to do some mail and digital, as well. That all by itself would barely buy one round of 30-second ad to talk about two candidates statewide in one market. They’re not necessarily peeing into the wind, but they are definitely stirred up in the tornado or hurricane, as it were.”
The messaging on reproductive rights may also get lost in the shuffle since that message has been talked about up and down the ballot.
“It just kind of blends in,” Sellek said. “There’s nothing special in any of the Supreme Court messaging, and that’s really been challenge in all these races since the Supreme Court races really started being politicized, going back to the Taylor and Markman and Young era. Then, some of the spending stood out, but even then, it was hard to really get people’s attention.”
Gongwer News Service
Just because the Democratic Party has more money and has had recent success in open seats for the Michigan Supreme Court, doesn’t mean the election is wrapped up already for its 2024 nominees, those watching the contest closely said.
Across several interviews, leaders from business and legal organizations, attorneys and strategists said the race remains tight for the open seat created by Justice David Viviano’s pending retirement. The candidates in that race for a full eight-year term are Rep. Andrew Fink (R-Hillsdale) and attorney and University of Michigan professor Kimberly Thomas.
Although some said the tide of the issues at play in the election – reproductive, civil and voting rights – clearly lean in favor of Thomas, others said voters care most about whether a candidate understands the role of being a justice well, and if they can communicate that understanding to voters on the ground.
At present, Democratic Party nominees Thomas and Justice Kyra Harris Bolden, running to complete a partial term, have been able to message on those key issues in statewide advertising with the help of liberal groups, which have flooded their campaigns with cash to get on the airwaves.
The Republicans in the race – Fink, who faces Thomas for the open seat, and Branch Circuit Judge Patrick O’Grady, facing Bolden for the partial term – haven’t been able to catch up to their liberal counterparts in terms of funding or spending, and have had a serious absence of advertising championing their credentials in digital and on TV.
So far, spending by or on behalf of Bolden and Thomas in television, digital and radio advertising has been essentially $4 million to zip for Fink and O’Grady. There’s another $1.6 million in reservations for the Democrats yet to run. Only finally this week did some advertising get reserved for Fink and O’Grady, about $161,000 by the Michigan Farm Bureau in radio ads.
That could change as other groups who have endorsed or supported Fink and O’Grady step in to help fund them and potentially get ads touting the candidates out on the air. Michigan Republican Party Chair Pete Hoekstra said earlier this month he anticipates significant spending to launch helping Fink and O’Grady.
Even with those factors, the race for Viviano’s seat remains a tossup, some said.
Asked if the race was already in the bag for Bolden and particularly Thomas, attorney Mark Brewer, a former chair of the Michigan Democratic Party, said that would be taking the year’s politics in play for granted.
“Nobody should take anything for granted here, but it’s the dynamic that is now very different,” Brewer told Gongwer News Service.
As for the money advantage, Brewer said having a campaign flush with cash doesn’t necessarily portend a win. It was a matter of spending that money intelligently and candidates communicating to voters that the bench would be fairer with them on board.
Thus far, Brewer said the Democratic nominated candidates were outperforming their Republican nominated rivals on that front.
Despite the lopsided advertising situation, leaders from organizations who have endorsed the Republicans, like the Michigan Chamber of Commerce, told Gongwer that the race for the open seat, and even the partial term seat currently held by Bolden, can still be won on the issues and through voter engagement.
The questions then become: how difficult is it to win an open seat versus unseating an incumbent? And why have Democrats been able to secure those seats more frequently within the past decade? And what can history predict about the outcome of the 2024 contest?
As a rule of thumb, open seats are rare and only emerge if a justice decides against reelection, as was the case with Viviano, or reaches the constitutional age limit of 70 years old, prohibiting them from running for reelection.
Incumbent justices have enormous advantages when seeking reelection, and beating an incumbent happens roughly once every 15 years, on average, Brewer said.
“I can count on one hand the number of incumbent justices that have been defeated since the 1980s,” Brewer said. “It can be done, but in terms of impact and the ability to win a seat, an open seat is just so much easier to win. That’s why the stakes are so high when it’s an open seat.”
Just two incumbents have lost in the past 40 years: Justice Clifford Taylor in 2008 and Justice Kurtis Wilder in 2018.
If a particular candidate can win one of those open seats, they then become an incumbent with a much easier path to be reelected eight years later when their term is up.
In 2020, Justice Elizabeth Welch was nominated by the Democratic Party to run for an open seat left vacant by former Justice Stephen Markman reaching the age limit. Welch eventually won alongside former Justice Bridget McCormack, who sought reelection to her seat on the bench.
Collectively, they faced Republican-nominated candidates Mary Kelly and Court of Appeals Judge Brock Swartzle, who were defeated in the general election that year. Not only did the Democrats hold their incumbent justice in McCormack, but they gained a seat, flipping high court from a conservative majority to a liberal majority – a first for the court in decades.
The 2022 race demonstrated the advantages of incumbency. The liberal Justice Richard Bernstein and the conservative Justice Brian Zahra were both up for reelection and appeared as incumbents on November ballots.
The nominated challengers were Bolden and attorney Paul Hudson, who came in third and fourth, respectively, behind Bernstein and Zahra, who both retained their seats. Bolden was within 2 percentage points of Zahra but couldn’t overcome his incumbency advantage.
Bolden was later appointed to the bench by Governor Gretchen Whitmer when McCormack decided to resign from the bench before her term was over.
She now holds the incumbency by appointment advantage, but the 2018 race for the Supreme Court showed that advantage doesn’t always ensure victory.
That year, current Chief Justice Elizabeth Clement was up for reelection, as was Wilder, who had been appointed by then Governor Rick Snyder a year earlier to fill the shoes of retired Justice Robert Young Jr. Wilder, who was then a Court of Appeals judge, completed the rest of Young’s term and was seeking a full eight-year term on the court.
Clement was appointed by Snyder in 2017 to replace then Justice Joan Larsen, who was appointed to the 6th U.S. Circuit Court of Appeals by former President Donald Trump.
In 2018, the Democratic Party nominated attorneys Samuel Bagenstos and now Justice Megan Cavanagh, the latter of which hails from the Cavanagh political dynasty – her father Michael Cavanagh served as the chief justice of the high court in the early 1990s and her uncle, Jerome Cavanagh, was one of Detroit’s most popular but later controversial mayors.
Despite his advantage as an incumbent, Wilder lost the race to Cavanagh, even as Clement kept her seat.
In 2014, Cavanagh’s father announced his retirement, leaving a seat open on the bench. That year, Zahra was an incumbent running for reelection to serve an eight-year term. Justice David Viviano was running as an incumbent to fill the remainder of his term after being appointed by Snyder to fill a vacancy created by the Justice Diane Hathaway’s resignation.
Bernstein, an attorney at the time with his family law firm, and Judge William Murphy were nominated by the Democrats, whereas Zahra and Court of Appeals Judge James Redford were nominated by the GOP.
Zahra won the lion’s share of the vote total in a five-way race, but Bernstein sailed to victory 8 percentage points ahead of Redford to win a seat on the bench.
In 2012, McCormack was nominated by the Democrats in the race to replace former Justice Marilyn Jean Kelly, who was prohibited from seeking reelection due to her age. Markman sought and won reelection to his seat, but McCormack bested her challengers to replace Kelly.
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Dems dominated due to party structural changes
Years before voters started laying the groundwork for the current liberal high court majority, the bench was dominated by appointees from former Governor John Engler.
At the time, the Democratic Party wasn’t paying that much attention to judicial races.
Brewer said that changed when he was chair, as the party sought to undo some of the “damage” of the Engler court.
“Whether it was civil rights, voting rights, environmental rights, consumer rights, I mean, they were just awful,” Brewer said. “I tried to start to change the culture of the party to pay more attention to these races.”
Several outcomes flowed from those efforts, Brewer said. The party created an earlier endorsement convention, which allowed its consensus candidates to start statewide campaigns and fundraising efforts prior to the party formally nominating them in August.
“You can’t run an effective statewide campaign if you’re not nominated until the end of August. It’s just not possible these days,” he said. “So, really embedded in the culture of the Democratic Party now is this idea that we need to reach early consensus on candidates, and that helps every candidate.”
That culture shift was apparent this year, as the Democrats had very early consensus on Bolden and Thomas, which meant they were able to get their campaigns up and running, raise money, travel the state and focus on the general election, knowing they were going to be nominated in August.
The Republicans did not hold early endorsement conventions this year due to party infighting and a lack of clarity on who was the rightful party chair. A nominating convention was held in August, in which Fink and O’Grady became the nominees for the 2024 race.
Brewer said a lack of early consensus on the GOP side may have disadvantaged Fink and O’Grady, but particularly helped Thomas in running for the open seat.
The overall disarray in the Republican Party also created funding challenges in the partisan races this year, not just the nonpartisan Supreme Court race. Contrast that with the organizational advantage of the Democrats, which has allowed them to raise and spend more money.
“A lot of this is due to the Democratic Party’s work and the candidates’ work, but the Republicans have dug themselves a real hole by nominating people late and not having the resources,” Brewer added. “It’s a complete turnaround from the Engler era.”
Jim Holcomb, president and CEO of the Michigan Chamber, agreed that the Democratic Party’s structure over the last few cycles has been stronger than the Republican Party’s in the Supreme Court races and have had a better go at turning out voters and educating them on the issues – including the basics of finish the ballot on the nonpartisan backside.
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Dem Supreme Court candidates also winning on the issues
The court’s ideological shift in recent years also tracked some of the ideological shifts in Michigan’s typically purple electorate, said Merissa Kovach, political director with the ACLU of Michigan.
“We have seen, objectively, in the last decade or so, an ideological shift in the court over the last several years, and we’ve seen that in the most recent elections,” she said. “As folks step off of the court, those candidates who are nominated by the Democratic Party on the ticket tended to be more favorable to voters.”
The race for the Supreme Court is inherently nonpartisan, but the Michigan Constitution’s call for those candidates to be nominated by the political parties often skews the race through a clear political lens.
As candidates often talk about their judicial philosophies, those philosophies can be viewed as the potential political leanings and biases they might have toward key issues like reproductive rights, civil rights and voting rights.
Bolden, O’Grady and Thomas discussed their philosophies in a recent forum hosted by the League of Women Voters. Fink discussed his judicial philosophy in an interview with Gongwer before the August nominating convention.
With those lines drawn, even in a nonpartisan race, groups like the ACLU of Michigan have been working to ensure voters understand where the candidates stand on rights issues.
The ACLU in September announced a plan to spend $2.3 million on an education campaign around three key Michigan House races and the Supreme Court contest – with the lion’s share of that funding going toward the high court.
Kovach said then that campaign was nonpartisan and did not favor any of the candidates, but that it would note their clear difference on issues like abortion and civil liberties issues.
On the ACLU’s national website, the group notes that Bolden and Thomas have both been endorsed by groups supporting the legal right to an abortion. The Michigan chapter’s website also notes various issues the high court recently ruled on protecting various rights near and dear to the group.
Voting rights and reproductive rights were protected by the Supreme Court when it decided to place the Proposal 2 and Proposal 3 of 2022 on the ballot. The court in 2022 ruled discrimination protections in the Elliott-Larsen Civil Rights Act applied to LGBTQ people.
A recent court rule issued last year required all state court judges and their staff to use a person’s chosen pronouns and names if changed, a big win for nonbinary and transgender people who engage with the court, including attorneys. This year, the court ruled that the adopt and amend scheme by a previous state Legislature was unconstitutional, protecting the right to direct democracy without interference from opposition lawmakers.
The ACLU of Michigan does not say on this webpage which of the candidates in the 2024 race would align with those decisions, but what do those rulings have in common? They were all decided by the high court’s liberal majority.
Reporters asked how the group can call the initiative nonpartisan when it was supporting rights issues that are typically in the ideological wheelhouses of Democrats.
Kovach said the ACLU has championed those rights for a long time, and didn’t view those issues from a partisan lens. Kovach said during its original announcement that the ACLU has championed those rights for a long time, and didn’t view those issues from a partisan lens.
In an interview with Gongwer, she clarified that protecting reproductive rights remains the ACLU’s top issue and has been so since the organization’s inception.
Kovach said she could only speculate on why Michigan voters have tracked with support for those rights in recent years, but a real shift in Michigan’s electorate and their awareness of that issue was her immediate observation.
“Fifteen years ago, what we knew was that the right to abortion was extremely popular, however, I think the sense was among voters that it was a protected right because of Roe v. Wade,” Kovach said. “It didn’t need to be top of mind when voting because we had federal protections. And that was good.”
Even as the group worked with Democratic legislators to shore up reproductive rights, few were bold on the issue and spoke about it front and center, Kovach said.
Waves of attacks on abortion and reproductive rights that ramped up in 2019 led to the fall of Roe due to the U.S. Supreme Court’s decision in Dobbs v. Jackson Women’s Health Organization.
The issue now reigns in the minds of many voters, and also politicians running on protecting those rights.
Much of the messaging around Bolden and Thomas has been in the vein of protecting the Supreme Court’s ruling on the issues and respecting the constitutional amendment that made reproductive freedom the law of the land in Michigan.
“I don’t think that’s necessarily just the party taking the lead there. I think they are taking cues from voters who feel abortion has always been a very important issue,” Kovach said. “It’s deeply personal, but I think because it was not under threat, it just really wasn’t rising to the forefront.”
As the Democratic candidates and their allies have been messaging on those issues, the GOP candidates have also been messaging on issues that they believe will help them win over voters in 2024.
Both Fink and O’Grady described themselves as potential rule of law justices, with Fink going as far to describe himself as a constitutional originalist. His main argument has been the current bench does not have the letter of the law and the meaning of the text of relevant laws at the forefront in its decision making.
“Instead, it seems to me that left-wing policy priorities are at the forefront of the resolution of the cases,” Fink told Gongwer in August.
The argument clearly resonated with Republican delegates who gave him the nod at the party’s summer convention, but it’s unclear if the call for greater balance or a complete rebalancing of the court’s majority can top a hot button issue like reproductive rights.
“Their candidates are both not just (anti-abortion), but extremely so,” Brewer said. “They’re both endorsed by Right to Life. This climate where choice has become such big issue, they already started out behind. They just start out in a terrible issue position because of the type of candidates (the GOP) nominated.”
There’s also a potential gender advantage there, Brewer noted, with the Democrats nominating two women as their candidates and the GOP nominating two men.
Holcomb said those issues have made it a bit of an uphill climb for the Republican candidates to cut through the clutter. He also said that Fink’s argument can and will resonate with voters.
“There’s a lot of people who look at the court and say, ‘I want to the court to be a good umpire. I want you to call balls and strikes,’” Holcomb said. “They want judges who respect the separation of powers. That the Legislature and under the Capitol dome is where policy should be debated. When you get to the court, it should be about the rule of law. … It shouldn’t be about legislating from the bench.”
Talking to voters directly about those issues is the best way to get those arguments to start resonating.
“I want to hear about ethics on the court, and ethics to me is respecting the separation of powers, the role under our Constitution for the judicial branch and making sure they adhere to that,” Holcomb said. “We don’t need a Super Legislature in black robes. What we need is an impartial arbiter of the law.”
Brewer said much the same, saying most voters, whether they consider themselves conservatives or progressives, and especially attorneys, want justices who will be impartial and fair when they present their arguments before the bench.
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Dems continue to have money and spending advantage
Face-to-face voter interactions may be a key strategy for the both the Democrats and Republicans in the race, but it’s hard for candidates to get their names out there without smart advertising, Kovach said.
That becomes even more difficult when the money just isn’t there for one side of the race.
“I think it’s the unfortunate fact of campaigns and elections these days. It’s so expensive to get your message out there. And what’s unique about the Michigan Supreme Court is, it has traditionally been – as with all our judgeship races – below the radar,” Kovach said. “They’re not as well recognized. They’re in the nonpartisan section of the ballot. There’s less education out there on what the impact of the court has on everyone’s day-to-day lives in Michigan, versus some of the other, more partisan races on the ballot.”
Republicans will have an uphill climb to get their messaging out based on post-nominating convention campaign finance reports.
Democratic candidates were far ahead in terms of cash on hand about a month out from the November general election.
Thomas had $168,883 cash on hand, and Bolden had $261,903 cash on hand, giving the liberal candidates a combined $430,768. Bolden raised $171,740 during the reporting period and $1.31 million for the cycle thus far. Thomas raised $180,103 in campaign contributions during the reporting period and a little more than $1 million over the course of the election cycle.
Fink and O’Grady were behind. The incumbent representative had $25,928 cash on hand and O’Grady had $56,051, bringing the GOP candidates to a combined $81,979 cash on hand. Fink raised $60,390 during the post-convention period and $160,647 overall through the cycle.
O’Grady raised $82,049 during the reporting period and $103,839 over the election cycle.
AdImpact data shows that from September 1 through the election, Thomas and Bolden and groups supporting them have spent or reserved $5.7 million on advertising. Fink and O’Grady have reserved nothing.
Leadership at the top affects how much money races in down ballot and in nonpartisan races have to spend, said John Sellek of Harbor Strategic.
“When you have a Republican governor at the top, that always means there’s a lot more fundraising that takes place,” Sellek said. “The Republicans are showing what happens when you don’t have a Republican governor at the top of the ticket, but also when the party selected a complete disaster as its chair.”
Sellek was referring to the selection of former MIGOP Chair Kristina Karamo, who was ousted this year and replaced with Hoekstra after a brutal intraparty fight. Karamo’s alleged mismanagement of the party was a key reason for her ouster.
“It set the party back a long way, and I think Chairman Hoekstra made a valiant effort to get things back on track,” Sellek said. “But there’s no way that he was going to be able to raise the kind of funding to match the Democrats this time around.”
With Trump on the ticket, that could be different, but it will take an effort from him and other top Republicans to turn out low propensity voters and make them interested and educated enough to flip the ballot to the nonpartisan section and make Republican-nominated
selections.
Sellek noted that Trump came out in support of O’Grady recently, so that could help.
That said, Sellek said he wasn’t convinced the spending thus far for the Democrats will be as impactful as they might believe.
“Even though I know that Representative Fink and Judge O’Grady would take a $2 million media buy right now, like the Democrats took from the ACLU,” Sellek said. “When you match that up to the noise that’s in the atmosphere caused by the presidential race, the U.S. Senate race, the congressional races, that barely registers, even at the congressional level, that amount of money.”
To burn in one message in the Detroit media market costs about $2 million, Sellek noted, and the cost of that is accelerating rapidly.
“TV stations are having the times of their lives,” he added. “Even when the ACLU announced that $2 million buy, I know they said they were going to do some mail and digital, as well. That all by itself would barely buy one round of 30-second ad to talk about two candidates statewide in one market. They’re not necessarily peeing into the wind, but they are definitely stirred up in the tornado or hurricane, as it were.”
The messaging on reproductive rights may also get lost in the shuffle since that message has been talked about up and down the ballot.
“It just kind of blends in,” Sellek said. “There’s nothing special in any of the Supreme Court messaging, and that’s really been challenge in all these races since the Supreme Court races really started being politicized, going back to the Taylor and Markman and Young era. Then, some of the spending stood out, but even then, it was hard to really get people’s attention.”
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