By LAUREN GIBBONS and SIMON D. SCHUSTER
MLive and Michigan Campaign Finance Network
LANSING (Oct. 29, 2020) —
With the balance of the Michigan Supreme Court at stake this election, an array of outside groups are pouring millions into getting nominees' names in front of voters.
Two of the seven seats on the Michigan Supreme Court are up for election — the seat currently held by state Supreme Court Chief Justice Bridget Mary McCormack and Justice Stephen Markman’s seat, which he will vacate at the end of the term under the state’s mandatory retirement requirements for justices.
Although Michigan Supreme Court seats are nonpartisan on the ballot, candidates are nominated at party conventions. If Democratic nominees win both seats, they would have a majority on the court for the first time since 2010. Republican nominees currently hold a 4-3 majority.
Outside groups supporting both the Democratic and Republican nominees are significantly outspending the campaigns they’re backing, continuing a longstanding trend in state Supreme Court races around the country.
And with less than a week to go before Election Day, groups supporting Democratic-nominated candidates have outpaced Republican-leaning groups in spending on television advertisements and political mail, which can be crucial in raising name recognition for nonpartisan candidates.
McCormack and fellow Democratic nominee Elizabeth Welch have benefitted from more than $4 million in outside spending, while Republican nominees Brock Swartzle and Mary Kelly have received about $1.3 million combined, according to campaign finance data filed with the Michigan Secretary of State.
For some supporters of McCormack and Welch, the stakes rose after a blockbuster Supreme Court decision stripped Gov. Gretchen Whitmer of her emergency authority to issue orders responding to the COVID-19 pandemic without the legislature. The decision to overturn the 1945 law from which Whitmer drew her authority was a 4-3 vote split between Republican-nominated and Democratic-nominated justices.
“I think this decision around the governor’s powers is a precursor to what people can expect if we don’t change the makeup of this court,” said Lonnie Scott, executive director of Progress Michigan. “Healthcare, women’s rights, LGBT rights — it all literally hangs in the balance.”
Democrats nominated McCormack and Welch, a Grand Rapids-area attorney, for the seats, and Republicans nominated longtime St. Clair County Prosecutor Mary Kelly and Court of Appeals Judge Brock Swartzle.
Other candidates in the race include Green Party nominee Susan Hubbard and Libertarian Party nominees Kerry Morgan and Katherine Nepton.
The title of “Justice” next to McCormack’s name on the ballot has long conferred benefits — the reelection rate for incumbent judges is high. Political veterans interviewed by the Michigan Campaign Finance Network and MLive say because McCormack’s seat on the bench is viewed as relatively safe, tying McCormack and Welch together could help the Democratic Party pick up an additional seat on the court.
A number of super PACs — political action committees that can raise unlimited amounts of money for political spending independent of individual candidates or causes — have dropped big sums in support of state Supreme Court candidates.
The leading super PAC supporting both the Democratic-nominated candidates, Justice For All, represents a coalition of groups including the Michigan Association for Justice, an organization that has long been an ally of Democrats. Some of the group’s ads use identical graphics as campaign spots.
A potpourri of liberal groups and law firms have contributed more than $2.6 million to Justice For All since the PAC was formed in May. Several contributors are dark money organizations that aren’t required to disclose their donors under Michigan law. Justice For All spent nearly $1.3 million on mailings across Michigan so far this cycle, and no other PAC has spent more independently supporting Supreme Court candidates this year.
Justice For All spokesperson Caitlin O’Rourke said special interest groups have long spent heavily in Supreme Court races to get “anti-consumer, anti-environment, anti-worker” justices on the state’s highest court. Justice For All is hoping to tip the scales this cycle, she said.
“Keeping Chief Justice Bridget Mary McCormack and electing Elizabeth Welch will create more balanced and fair courts,” she said.
O’Rourke said the coalition is also focused on educating voters about the nonpartisan section of the ticket and the important role justices play in setting state policy, specifically citing the decision to curtail Whitmer’s emergency powers during the COVID-19 pandemic. She said Justice For All plans to continue working on Supreme Court races in future cycles.
“Decisions made by the Supreme Court have a much bigger impact on the lives of Michiganders than nearly anything else on the ballot,” she said.
Another group supporting Democratic nominees, the Michigan Liberation Action Fund, lists a home in Hamtramck as its mailing address, but is funded exclusively from donors outside Michigan. They’ve spent more than $450,000 on mailers.
The Progress Michigan Political Action Fund, which previously invested in Justice Megan Cavanagh’s election bid in 2018, also made buys for political mail and ads supporting McCormack and Welch. Their latest ad prominently features a quote from the late U.S. Supreme Court Justice Ruth Bader Ginsburg.
McCormack and Welch appear side-by-side in nearly every commercial and mailer, almost as though they’re running mates. Liz Boyd, McCormack’s campaign spokesperson, said it was a natural decision.
“The Chief Justice has known Elizabeth Welch for 10 years,” Boyd said in a statement. “Elizabeth is hard-working, smart, and a creative problem solver who is known for working with all kinds of people. These two candidates were nominated by the same party and the fact that they are working together and pooling resources makes total sense, especially in a time of pandemic.”
McCormack’s campaign claimed ignorance of the outside groups supporting her candidacy.
On the Republican side, Kelly has been backed primarily by a super PAC controlled by the Michigan Chamber of Commerce, which has spent about $600,000 in her favor, more than three times what her campaign has spent to date. The PAC has spent $200,000 on Swartzle.
The Michigan Right to Life PAC also put up funding for political mailers supporting both Swartzle and Kelly.
For the most part, Swartzle and Kelly haven’t been presented as a package deal. A recent Facebook ad run by Swartzle’s campaign concluded “only Judge Brock Swartzle for Supreme Court.” It claims he is the “only rule of law judge running,” and doesn’t mention Kelly.
Swartzle, in an interview, avoided commenting on his relationship with Kelly beyond noting they had appeared on party literature together.
“I think you’re maybe reading too much into ‘only,’” Swartzle said. “I’m trying to focus on what distinguishes me from all other six candidates.
“I think I’ve just been running on putting forth the positives about my record. I am the only court of appeals judge running for Supreme Court. Mary Kelly has highlighted she’s the only one with prosecutorial experience.”
Swartzle said he isn’t bothered by the outside spending in the race.
“I am a strong supporter of the First Amendment,” Swartzle said. “And I think more speech is better than less speech.”
Another big spender in the race, a super PAC connected to the Michigan Realtors Association, has split its spending between Swartzle and McCormack.
Brad Ward, vice president of public policy and legal affairs for the association, said the PAC has primarily concentrated on radio and digital advertising, similar to what was done for Supreme Court candidates they’ve endorsed in the past. The PAC has backed both individualized ads and ads naming both candidates, Ward said.
“We’re looking for fair, impartial justices, we’re looking for those that have experience,” he said. “Our committee felt very strongly that these were two justices that we would like to see serve on that court.”
In all, there has been at least $5.3 million in outside spending on the race, and about $4 million has gone toward Democrats. Welch’s campaign has raised about $1.4 million, while McCormack has gathered more than $1.1 million. It’s considerably more than Swartzle, who’s reported raising about $384,000 as of the last filing and Kelly, who’s garnered $314,000. Combined, the spending of these four nominees is less than half of the outside total.
So far, Michigan’s state Supreme Court race isn’t the costliest compared to other states with competitive races, said Douglas Keith, counsel at the Brennan Center for Justice. The center tracks television ad spending in state Supreme Court races across the country.
That could be the result of a number of factors, he said, pointing to the surge in absentee voting this cycle and the recent U.S. Supreme Court nomination of Amy Coney Barrett, which could have diverted resources from outside groups that may otherwise have looked to spend in Michigan.
But Keith noted there’s still plenty of time for last-minute investments from new or existing groups on behalf of state Supreme Court candidates before Election Day, adding that focus on these races will likely continue to grow in subsequent cycles.
“State supreme courts are likely only going to become more important and attract more attention in the coming years,” Keith said.
In past cycles, voters generally haven’t paid much attention to state court candidates — “it’s sort of a low key role,” said Michael McDaniel, associate dean at Western Michigan University Cooley Law School.
But the recent decision regarding Whitmer’s COVID-19 emergency powers and the timing of Barrett’s nomination to the court could go a long way to raising awareness of the importance of those seats, he said.
“The public now sees the Supreme Court in more of a political light, and I think that will transfer over when they think of state supreme courts,” he said.
This election cycle, MLive and the Michigan Campaign Finance Network partnered to collect and analyze political mailers from campaigns and outside groups to aid in tracking spending in races around the state. See more of what readers submitted here.