Portside

Back in 2015, Democrats flipped control of the Pennsylvania Supreme Court, after Republicans had held the majority for six years. Without that result, Pennsylvanians almost certainly would not have a fair vote for their state legislature or Congress today, Democrats might not have maintained control of the House of Representatives in 2020, and Donald Trump might have been able to cheat his way to seizing Pennsylvania’s electoral votes that year.

But democracy in Pennsylvania was only made temporarily safe. There is a vacant seat on the court that will be filled by an election on Tuesday, where Democrat Daniel McCaffery is facing Republican Carolyn Carluccio. Should Carluccio win, Democrats will still have a 4-3 majority, but the GOP will be that much closer to flipping the court back to its control, and three more liberal seats are up in 2025. Should Republicans win the majority of these supreme court seats, we know their blueprint for the aftermath: The party will instantly cement itself into permanent supermajority control of the state legislature, and start shoving a right-wing agenda down Pennsylvanians’ throats—above all by banning abortion.

Precisely this just happened in North Carolina, where Republicans last year flipped the state supreme court, and within less than a year it dutifully rubber-stamped a ruling legalizing partisan gerrymandering. The state legislature (itself the product of previous rigged boundaries) then produced new state legislative maps where even a Democratic-wave election would produce a Republican supermajority, as well as stealing 3 to 4 seats from Democrats in Congress with rigged House maps. Then, thanks to one Democratic assemblymember turning Benedict Arnold on her own voters and switching parties to give the GOP a legislative supermajority, it passed a sweeping abortion ban and a rollback of voting rights over the Democratic governor’s veto. A 50-50 state is now subject to authoritarian Republican rule.

This is just what the Republican Party does.

Pennsylvania itself has an instructive history in this department as well. Before the court flipped, the state had one of the most egregious congressional gerrymanders in the country. In the 2012 elections, for instance, Democrats won 51 percent of the House votes, but just five out of 18 seats. Republicans achieved that whopping 23-point handicap by flagrant cheating; one of the gerrymandered districts that disenfranchised large chunks of Philadelphia infamously resembled Goofy kicking Donald Duck.

But in 2018, the Democratic-majority state supreme court tossed those maps, and forced the state legislature to draw new ones. These were at least somewhat fair, as Democrats won half the seats that year despite winning the popular vote by more than ten points—a four-seat gain that accounted for nearly all of the party’s 2021-2022 majority in the House, enabling the Inflation Reduction Act and other laws to pass.

Carluccio is the kind of conservative who knows “their agenda is hugely unpopular and that they have to force it through under cover of darkness.”

In 2020, the Democratic court was key to halting Trump’s attempted putsch, as it swatted down his lunatic lawsuits attempting to stop the certification process and allow his thugs to get close to vote-counters.

In 2022, the court got a Stanford professor to draw new congressional maps that once again only slightly favored Republicans. And with the court likely to strike down any more blatant cheating at the state level, the legislature also drew up fair maps for the state House and Senate, which received court approval. Sure enough, a narrow Democratic victory in 2022 produced a tiny Democratic majority in the state House (though thanks to the death of the Democratic judge that created the current vacancy and one liberal switching sides, the court also threw out thousands of mail-in ballots with minor technical errors).

Now, as Alex Burness writes at Bolts, Carluccio is not exactly a howling MAGA maniac; in the GOP primary, she defeated Patricia McCullough, the sole judge in the entire country who agreed with Trump’s stop-the-certification lawsuit. But Carluccio has played footsie with election denial and signaled she is open to challenges to Act 77, a 2019 law that allowed any voter to get a mail-in ballot (at a time when Trump Republicans thought mail-in voting benefited their party). And as Politico reports, she has recently removed strongly anti-abortion language from her website, certainly in reaction to the anti-Dobbs backlash.

In other words, she is the kind of conservative who knows “their agenda is hugely unpopular and that they have to force it through under cover of darkness,” to quote Alex Pareene. Should she become part of a Republican court majority, the mask will quickly come off—in part because once she has been installed on the bench, Pennsylvania voters will have little recourse for many years.

Now, in many ways it is not ideal for top court elections to become so partisan that everyone understands that their legal decisions will be heavily influenced by their political beliefs—though it should be emphasized that the Democratic judges have largely gone for fairness rather than trying to gerrymander themselves into permanent one-party rule. Unfortunately, that is simply the world we live in now. Lamenting that top courts are essentially another superior legislature doesn’t change the fact that that is how they behave, from the Supreme Court on down. Voting for any Republican, and especially for top state courts, is to vote against democracy itself.

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