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In partisan state Supreme Court races, GOP sweeps Ohio and flips North Carolina

With abortion rights at stake, Democrats held on to their slim majority on the Illinois Supreme Court, while in Kentucky, a "conservative" anti-abortion judicial candidate lost.

Closely watched state Supreme Court races in which divisive issues such as abortion rights and redistricting fueled political donations and record campaign fundraising ended with mixed results on Election Day.

In the handful of states with partisan races, Republican-affiliated justices retained their 4-3 majority on the Ohio Supreme Court by sweeping all three open seats over their Democratic challengers, while Democrats held on to at least one of two vacant seats on the Illinois Supreme Court, blocking Republicans' attempt to wrest control of the court for the first time in 50 years.

That possibility had abortion rights groups increasingly nervous that abortion protections could unravel in Illinois, which is surrounded by other Midwestern states where the procedure is banned or restricted after the U.S. Supreme Court struck down the constitutional right to an abortion in June.

Image: Republican Supreme Court Justice Pat DeWine speaks to supporters at an election watch party on November 8, 2022 in Columbus, Ohio.
Republican Supreme Court Justice Pat DeWine speaks to supporters at an election watch party Tuesday in Columbus, Ohio. Andrew Spear / Getty Images

Republicans were victorious in North Carolina, claiming the two open seats on the state Supreme Court and flipping its makeup to a 5-2 Republican majority — clinching power for the first time in six years.

The switch is certain to factor into major legal battles in the coming years over issues such as redistricting, gun rights and abortion access.

Republican legislative leaders have vowed to push for abortion restrictions in North Carolina, where the procedure remains legal during the first 20 weeks of pregnancy, and a GOP-aligned state Supreme Court could be seen as beneficial. But the judicial candidates in this year's race pledged to remain independent and did not campaign openly on either side of the debate.

If people "lose confidence in the courts, then we no longer have power, because we depend entirely on the public trusting that we're independent and that we're not acting as a political body," one of the winning Republican candidates, Richard Dietz, an appeals court judge, said at a candidate forum last month.

Even in states where judicial races are nonpartisan, political organizations seized on the overturning of Roe v. Wade and other issues to buy television advertisements and drive voters to the polls to help their favored candidates.

In the 6th Supreme Court District in Kentucky, Justice Michelle Keller defeated Joe Fischer, a longtime GOP state legislator, who branded himself as "the conservative Republican" in the race and boasted an elephant in his campaign signs.

Keller won even as groups outside Kentucky spent hundreds of thousands of dollars in ad buys to support Fischer, who also was blatant about his anti-abortion stance. Keller, a registered independent, did not make abortion or partisan endorsements parts of her campaign.

Fischer, as a state legislator, crafted an abortion-related amendment that was on the statewide ballot Tuesday. But the measure — to amend the state constitution to specify that it does not protect the right to an abortion — was rejected, 53% to 47%, according to unofficial statewide results.

Image: Anti-abortion activists rally in front of the Kentucky State Capitol in Frankfort, Ky. on October 1, 2022.
Anti-abortion activists rally in front of the Kentucky State Capitol in Frankfort on Oct. 1. Stefani Reynolds / AFP via Getty Images

He is also the author of Kentucky's 2019 "trigger" law, which went into effect this year after Roe was overturned and makes most abortions illegal in the state.

But the amendment's loss did not bode well for Fischer, either, said Laura Moyer, an associate professor of political science at the University of Louisville.

The 6th Supreme Court District comprises 13 largely Republican-leaning counties, eight of which rejected the amendment, she said.

"That couldn't have helped Fischer," Moyer said.

Fischer could not immediately be reached for comment Wednesday. He wished his opponent well on Facebook: "I pray she serves Kentucky justly and fairly."

In another high-profile race in Montana, where the state Supreme Court is nonpartisan but has been criticized by Republicans for holding a "liberal bias," the GOP-backed candidate also lost to the incumbent.

The election took a noticeably political turn this year when James Brown, an attorney and the president of Montana's utility oversight board, said Gov. Greg Gianforte, a Republican, encouraged him to run against Justice Ingrid Gustafson, believing he could be a foil to judges' "legislating from the bench."

With the state Supreme Court elections taking heightened importance, Brown had benefited from the Montana Republican Party's committee's spending more on ads for him than on all of the other GOP legislative candidates this election. Groups also attacked Gustafson as being anti-business.

But by Wednesday morning, Brown was trailing by 35,000 votes statewide. He later conceded.

"We fell short after a hard-fought campaign where we were significantly outspent by special interest groups and saw millions of dollars in liberal money flood the state in the final weeks of this race," he said in a statement.

Jeremy Johnson, an associate professor of political science at Carroll College in Helena, said the outcome shows that even backing from political heavyweights may not be enough to persuade voters to oust incumbents. Gustafson was first appointed to the state's highest court in 2017 and then elected in 2018.

Montana voters also rejected an abortion-related ballot measure that would have criminalized health care providers who fail to take "all medically appropriate and reasonable actions to preserve the life" of an infant born alive, including during a failed abortion. The referendum failed by more than 19,400 votes, according to the secretary of state's election results posted Wednesday.

While Republicans control the Legislature, voters may not have been swayed by politics when it came to deciding who sits on the state Supreme Court.

"It was not enough to have the endorsements of Republican officials," Johnson said. "That was proven by this election."