Almost half of the Pennsylvania Supreme Court will be re-elected next month. This is a court that can determine high stakes cases regarding election rules in the lead-up to the 2026 and 2028 elections. However, due to the way Pennsylvania elects judges, it is possible that races will fly under the race under the radar of most voters.

It means that three members of the court’s current five to two Democrats are standing in the holding election, but there are Judge Christine Donohue and David Wecht, who are currently five to two Democrats (the court’s current majority) on whether voters should vote “yes” or “no.” If the judiciary fails to win the support of the majority of voters this November, that justice will be temporarily replaced by Gov. Josh Shapiro (D), who will be subject to confirmation by two-thirds of the state Senate. Voters then elect justice in the 2027 competitive partisan elections in full period.

Since Pennsylvania’s first adoption in 1968, only one judicial election has lost its retained election. Judge Russell Negro lost his seat in 2005 due to widespread anger at civil servants after the legislature passed a pay raise for state officials significantly. Apart from Negro, Pennsylvania’s justice often wins a entrenched election in about two-thirds of the vote.

If Pennsylvania’s retained elections are historically competitive, the role of the courts in determining election rules could be a major reason. Donohue, Dougherty, and Wecht each provided important votes in their 2018 court ruling, recognizing that partisan gerrymandering, for example, violated the state constitution’s guarantee that “elections are free and equal.” The decision made the state’s Republican lawmakers so angry that they submitted a fiat each article against the three justice.

Since then, courts have continued to issue famous rulings on voting rules just before and after national elections, often determining cases in a way that makes it easier for eligible voters to vote and count the votes. In its lead-up to the 2020 election, Democrats petitioned the court to clarify Section 77 of the state’s new mail-in voting law. The court interpreted it as allowing them to count the number of votes that have arrived at the election office up to three days after Election Day. Shortly after the election, the court refused to appeal by President Donald Trump, and nonetheless determined that timely mail-in votes that missed the envelope’s handwritten date should be counted. A few months before the mid-term 2022, the court upheld a portion of Law 77, allowing voters to vote by mail. And a few days before the 2024 presidential election, the court confirmed a lower court ruling that allows voters to vote in a provisional vote if mail-in ballots are disqualified for missing the required privacy envelope.

But Donohue, Dougherty, and Wecht are not always in line with big decisions about voting rules. Wecht opposed the 2024 privacy envelope decision, Dougherty challenged part of the 2020 mail-in voting ruling, and Donohue challenged part of the 2020 ruling, which extended the deadline for mail-in voting.

Beyond voting and election control, courts may also be asked to determine the extent to which the state constitution protects access to abortion. Last year, the Pennsylvania Supreme Court resurrected a lawsuit challenging the state’s ban on Medicaid funding for abortion services, but was not prepared to answer whether the Pennsylvania constitution would protect the right to abortion. Donohue and Wecht both showed that this is the case, but Dougherty wrote separately, saying that while the court should not reach that question yet, “there is little doubtful that the matter will eventually return to this court.”

The courts are prominently conservative in their judgments on criminal law and proceedings, and justice standing for retention is divided into several important decisions. Over the objections from both Wecht and Donohue, the court ruled that elements of the state’s Sex Offender Registration Act did not violate the state’s constitutional due-process protections. Wecht also opposed the court’s decision to refuse to answer whether “inventory search” of the contents of trapped vehicles was an unconstitutional invasion of privacy. Meanwhile, Donohue opposed the court’s decision that the state constitution would prevent the release of bail to sentence the maximum life sentence.

While retained elections have historically not attracted significant spending and national attention, judicial elections have changed dramatically in recent years. Political parties, donors and other interests increasingly understand that these courts are at the heart of major policy wars and that their decisions can have national meaning. In this new era of national judicial politics, conservatives launched successful prevention campaigns in Oklahoma and in 2020 in Illinois, expelling justice with the help of funding and attacks that are not common to historically quiet, retained elections.

Pennsylvania courts in particular have already attracted the attention of major political spenders. When Donohue, Wect, and Dougherty first reached the Supreme Court in a competitive partisan election in 2015, their race recorded $28 million in spending (adjusted to inflation).

Candidates and outside groups have already raised and spent more than $8 million in this year’s race, making Pennsylvania’s most expensive retention elections. This includes spending of more than $5 million by external groups on advertising, featuring some of the court’s key decisions. Pennsylvania’s retention group for judicial equity, which received funding from the National Democrats group, runs an ad in its 2024 ruling that “PA Supreme Court protected women’s reproductive rights.” The anti-retention group, tied to Pennsylvania’s GOP Mega donor, Jeffrey Yass, has been sent to mailmen accusing the state’s 2018 decision of gerrymanding the state’s legislative district, but the ad features images of a map attacked as partisan gerrymanders in the decision. By Election Day, the race could be nearing the most expensive retaining election of all time. This is the record that took place in the 1986 campaign to discharge Rosebird Justice in California, seeing nearly $30 million in dollars today.

Whether the race sets a spending record or not, court membership arising from this year’s election will inevitably determine well-known cases relating to elections, abortion rights and more in the very near future.

Douglas Keith is the founding editor State Court Report Deputy Director of the Judicial Program at the Brennan Center for Justice.

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