The judicial branch shouldn’t hold the same vested interest as the other branches of government….and yet, partisan money is trying to infiltrate the Pennsylvania state Supreme Court elections.
Mike Lee, the Executive Director of the American Civil Liberties Union (ACLU) Pennsylvania branch, joins Jen to explain what exactly is at stake in this state election. With a track record of only dismissing one judge in the history of Pennsylvania’s retention elections, November 4th should go smoothly. However, Lee reveals unexpected obstacles and inner electoral workings in play, such lower voting records and fairer district mapping.
Mike Lee is the Executive Director of the ACLU of Pennsylvania. Prior to his current position, Lee served in Philadelphia District Attorney Larry Krasner’s administration as director of government affairs, supervisor of adult diversion, and chief of staff.
Jen Rubin: Hi, this is Jen Rubin, Editor-in-Chief of The Contrarian. I’m delighted to welcome Mike Lee, who is the Executive Director of the ACLU of Pennsylvania. Mike, welcome!
Mike Lee: Hi, Jen, thank you for having me.
Jen Rubin: Absolutely. You have a Supreme Court race, up there, which is, a vote essentially to retain 3 of the justices. Tell us just briefly how the system works in Pennsylvania, and how it is that, you have elections, to retain justices, but not necessarily to vote for new ones in the same election.
Mike Lee: Thank you, Jen; great question. So, Pennsylvania, I believe, has the oldest Supreme Court in the country, so we’ve been trying to get this right for a while. And, unlike most states, we have elections for our judges, including the state Supreme Court. When they’re on, running for their first term of 10 years, they’re on the ballot like every other type of a candidate. But, once they’re elected to the state Supreme Court, they then come up for something called a retention vote. Which is basically, every 10 years, an opportunity for the people to say, yes, we think this justice should have another 10 years, or no, you should not have another 10 years. And somewhat coincidentally, we happened to have 3 judges up for retention at the same time, because we had 3 vacancies 10 years ago, when those seats were filled.
Jen Rubin: Interesting. So, the judges will go up before the voters, they don’t campaign because they’re judges, but other folks do. What’s at stake, with the potential, retention or the decision of the voters to send them home?
Mike Lee: Great question, Jen. Well, first, what happens if the judges are not retained? They leave the bench, because we believe in the rule of law in Pennsylvania, and it would be up for the governor of Pennsylvania to nominate and the Senate of Pennsylvania to approve, temporary justices to the bench. In our very purple, state in Harrisburg, it is not a guarantee that those seats will be filled, prior to the 2027 election. So, in Pennsylvania, we have the very, or a potential to go through all of 2026 with three fewer justices than we need, and that could result in a lot of deadlocked decisions and outcomes. So that’s what would be at stake if the judges, justices are not retained. If they are retained, then we’ll have a full bench, that will have… they will have 10 more years, provided for age requirements, and they’ll have very important decisions that they need to make and continue to make. ACLU of Pennsylvania just argued last month about voting access, before the state Supreme Court. There’s also a lot of cases around worker, workplace protections, and abortion rights are always appearing before courts. So there are several civil liberties issues that the justices routinely hear, in addition to all of their other responsibilities administering all the other Pennsylvania courts. And that’s another thing that shouldn’t be left out of the conversation is that the outsize or the role that they play in overseeing all of the other courts of Pennsylvania that people are more likely to interact with, from traffic court all the way up through the appellate cases.
Jen Rubin: Now, there’s been a lot of focus—as there should be—on the Supreme Court and voting rights, but if the Supreme Court, for example, would allow another round of, re-redistricting, or remove what is left of Section 2 of the Voting Rights Act. The state courts, the state Supreme Courts then, could be very important, because they would be interpreting state law.
Talk to us a little bit about the state Supreme Court. They played a very important role in 2020, and they could be very much needed as we face new redistricting threats and voting rights threats in the near future.
Mike Lee: Yeah, great point. This court, as currently composed, already has dealt with the political and legal questions surrounding who represents whom. And I think it is extremely important that we understand the role that the third branch of government, the judiciary, plays in this. They aren’t supposed to have the same type of vested interest that other branches of government have by being elected and re-elected on a more reoccurring basis, or having the ability to introduce and pass legislation. So as a backline and final line of defense for many of our constitutional rights, I think the districting process is one of the easiest ways for us to see it. As the original map was passed along partisan lines and was rejected by this court as disempowering too many people for reasons that had little to do with what the needs are of a particular community, or even the geographic area of a particular region. And instead, they said, go back and write a… draw a new map.
And when no map could be reached between the parties with vested interests, the elected officials, they then created a third, neutral, committee that had some of the stakeholders present, but we have a much fairer and better map in Pennsylvania because the State Supreme Court rejected the original proposals as not being representative of Pennsylvania values or our Constitution, and through the creation of this committee, we were able to have a much fairer map that has led to more accurate and geographically understandable districts.
Jen Rubin: Usually, these elections are not very controversial, as I understand it. I think there’s a grand total of one justice who is not retained in one of these elections. But partisan forces, have raised a lot of money and are spending a lot of money to try to, eliminate these justices. Why are they doing that, and does that concern you, that, a lot of money is being spent, to remove justices who have served under good behavior and have, really, as you say, navigated some very, very tough issues.
Mike Lee: You know, I don’t know why people spend money, specifically, Jen, but I think there is a lot of…shared interest in making sure everyone who is eligible to vote votes, that those votes are counted, and the decisions are respected. I don’t really know what the intentions are of the people trying to, inundate Pennsylvania with all this money, but if it raises awareness about the importance of our justices and everyone else up for election on this off-year, I think it is, helpful.
We don’t have enough people participating in our elections in Pennsylvania, and the more people that participate, the more likely we are to have outcomes that are pro-civil liberties, in my opinion. So, I think there is a growing interest in democracy and checks and balances, and people are starting to see the importance of state elected officials, city elected officials, and federally elected officials in a whole new way. And some of it, I think, has to do with living through a pandemic and seeing the amount of influence that governmental decisions can have on our day-to-day lives, and some of it is people who’ve been dealing with adverse government decisions for generations upon generations. And we call those marginalized people in our American language.
Jen Rubin: Absolutely. Now, Pennsylvania’s a very purple state, and this Supreme Court, is not, it seems, radical. Sometimes they’ve, gone the way the ACLU has wanted, and other times they haven’t. This does not seem like, or should not be, a problem for most voters. Is there any reason that, voters should, in particular, be upset with these justices? There’s no scandal, there’s no, really, malfeasance going on. It seems like they are very reflective of a very moderate state.
Mike Lee: I think that’s a fair statement. And our bar associations, both the Pennsylvania State Bar and a lot of the county bars, like Philadelphia, Allegheny, and York County, all have, judicial recommendation guides. I think they’re very, very helpful resources for people to understand, as you mentioned so accurately earlier, judges can’t campaign. And I don’t think they should campaign, around how they make legal decisions, because we should be taking things on a fact-by-fact basis, case by case. So I think it is really helpful for other organizations that are more familiar with how judges treat people that appear before them. How reasonable are their decisions? How often they get appealed. Bar associations are really well positioned to provide that type of information to voters to make the most informed decisions. And I also have not heard of any malfeasance or transgressions by these justices who are currently up for retention, or by the state Supreme Court as a whole, which I think is a good thing, and something that all Pennsylvanians should look to with pride.
Jen Rubin: Along with voting rights, of course, there are other rights, that state Supreme Courts can weigh in on, even if the United States support… Supreme Court, rather, appeals 50 years of, president and, eliminates Roe v. Wade, there are state constitutional protections at issue. There are state protections, of, criminal defendants and the like. How important is it for not just people in Pennsylvania, but people around the country to really understand the role of these state court judges, particularly when you have such, really kind of radical, and, very abrupt changes at the federal level, where rights that we thought were really cemented, turn out to be not cemented at all.
Mike Lee: One thing I always try to remind people is most times the federal law is the floor and not the ceiling. And states’ constitutions usually go beyond the protections afforded to the Constitution. In Pennsylvania, we even have some counties, like Philadelphia, that still have a home rule charter, which gives us an additional layer of protection from governmental overreach. And that’s what our Constitution at the federal level, and the state level, is designed to do. It describes what rights we have much more so than it gives us rights. And as our rights are threatened and attacked in… at one level, be it the federal level in this instance, then we can lean on the rights described in our state’s constitutions to give us additional protections. And sometimes it goes the other way; where the state rights are being violated, and you might be able to lean on your federal rights to get the protections and insurances. And that’s one of the more confusing parts of our time, is that the civil rights movement leaned on the federal laws in government to help states overcome their shortcomings and how they were treating citizens. And now we’re in the inverse situation, where we’re leaning on states’ rights to limit and curb what the federal government is trying to do. So we always, as Americans, have an additional check and balance, which is our state constitution. And in Pennsylvania, you might even have a third line of defense, which is your home rule charter or your city or municipal government. And at the ACLU, we call all these protections collectively our firewall for freedom, and we are really trying to shore up with model policies and legislation and encouragement and support that, yes, we can stand up to federal action that we disagree with. I think we’re seeing a really good example of that in states like Illinois and Chicago and Oregon and Portland, and saying that even if the federal government wants to do this, there’s a limitation to their power, because we are the ones that gave it to you. And similarly, if the state is doing something we disagree with, there’s a limitation to that, too, because we all are born with inalienable rights, and we give some of those rights to the governments who we agree to be governed by.
Jen Rubin: I think that is incredibly important at this very, odd and sometimes alarming, time in our history. Last question for you: The Supreme Court last week, did hear a case in which a number of justices seem inclined, to either, dramatically shrink or even strike down Article 2 of the Voting Rights Act, which has really been the guarantor of a community’s representation, their ability to choose their own representatives. How dangerous would that be if Article… if, Section 2, rather, were struck down?
Mike Lee: As dangerous as racism allows, as dangerous as sexism allows, and what we’re talking about here are protections that were put in place because you can’t…governments couldn’t be trusted to do things in a non-discriminatory way.
I don’t know how far some of these governments have gotten in being less discriminatory. I think that’s part of what these justices are trying to weigh. However, I believe discrimination still exists, and we should be doing everything we can to make sure that people can speak freely, vote for who they want, and have the representation of their communities be reflected in the people that we elect. But even with having places redistricted. I believe that we have a strong enough coalition of pro-civil liberties people that it’s becoming less and less important what nationality you are, what gender you are, what race you are, and more about, do you believe in our American principles? Do you believe in the rule of law? Do you believe in civil liberties? If so, then you can’t vote for the person who just tried to take it away. And maybe we will get to a place in our society where it’s harder to gerrymander, because you can’t just say, all these people that look this way or pray this way are going to vote this way. I don’t think that’s ever been true, and I hope that we prove it it’s even less true now than it has been before.
Jen Rubin: Well, I saw some of those crowds, that you drew on No Kings Day, so I do think that there’s a large population of people there and around the country, about 7 million who are in favor of preserving our constitutional rights…And if people want information about this race, where can they go, to get information about these justices?
Mike Lee: You could go to aclupa.org, and on our home landing page, you’ll see a special box that’ll redirect you to our page just on this retention race. If you really want to take a deep dive into what retention means, what happens if a judge is or is not retained, please visit that website. Again, it’s aclupa.org, and the same is true for our social media handles as well. We’ll be rolling out a lot more information and cool videos.
Jen Rubin: Terrific. Thank you so much, Mike, we really appreciate it. Contrarians, we talk a lot about the ACLU, and as you know, national ACLU does great work, but each state also has an ACLU, and they do invaluable work because they do act as protectors, whether it’s, First Amendment rights, Fourth Amendment rights…14th Amendment rights, they really are part of that firewall that Mike talked about. So, thank you so much, Mike. We appreciate it, and we will have you back soon. We’re very interested around here to figure out if Pennsylvanians retain their Supreme Court justices.
Mike Lee: Thank you, and if you know any registered voters in Pennsylvania, remind them to vote on or before November 4th.
Jen Rubin: Well, we do. We have about 15,000 subscribers in Pennsylvania, so you folks all get out there and vote. Thanks so much, Mike. We’ll see you soon.
