The GOP Has a New Plan to Prevent Voters From Rejecting Their Unpopular Abortion Bans

Earlier this year, Arizona’s Supreme Court issued a deeply unpopular opinion resurrecting an abortion ban from 1864. Immediately, justices who had taken part in the ruling and who were on the ballot in retention elections faced a serious threat of being kicked off the bench by voters.

How have members of the Republican establishment in Arizona responded? If you guessed that they’re reconsidering extremist anti-abortion positions and moderating support for bans, LOL. No, as in other states across the nation, the backlash that the Arizona GOP is facing from voters for its wildly unpopular abortion positions caused the party to respond by trying to take away voters’ power to hold it accountable for those positions.

Indeed, abortion rights groups are opposing two state Supreme Court justices in the November elections, but a proposed amendment would make those justices untouchable.

Since the Arizona Supreme Court resurrected the 1864 abortion ban a few months ago, pro-choice groups and progressives have mounted an unprecedented effort to oust two justices in this year’s elections.

It could be the first time in U.S. history that progressives or leftists oust a high court justice in a judicial retention election. If the effort is successful, Gov. Katie Hobbs, a Democrat who signed a repeal of the broadly unpopular ban, will appoint two new justices.

But the voters’ decision may not even matter. That’s because earlier this month, Republican state lawmakers passed a constitutional amendment, by a one-vote margin, that would keep the justices on the bench regardless of what happens on Election Day.

If Arizonans approve the amendment, it would make the state’s high court justices nearly as unaccountable as U.S. Supreme Court Justice Samuel Alito and his colleagues in Washington. They would serve until age 70 and not face any retention elections unless they committed some kind of misconduct.

Republican state Sen. Shawnna Bolick voted for the constitutional amendment, refusing to recuse herself even though her husband is one of the justices who could lose his job on Nov. 5. If Bolick had recused herself, the amendment wouldn’t have passed.

Democrats oppose the amendment. State Rep. Analise Ortiz, who represents Phoenix, described it as “authoritarianism.” Other lawmakers cited Justice Sandra Day O’Connor, who helped establish the state’s system of merit selection and retention elections when she served in the Arizona Legislature. Sen. Flavio Bravo said, “It would be a shame to take this action six months after Justice Day O’Connor’s passing.” Bravo argued that retention elections provide “the kinds of checks and balances critical to our democracy.”

The merit selection system, sponsored by O’Connor nearly 50 years ago, established retention elections and bipartisan judicial nominating commissions, which evaluate applicants for judgeships and submit a list of the most qualified to the governor. Governors must choose a nominee from the list, but the previous governor, Republican Doug Ducey, stacked the appellate court commission with conservatives to get a less qualified justice on the court.

Ducey also filled two new seats on the high court in 2016 and changed its ideological leaning. Conservatives have played judicial hardball in Arizona for years, and it has resulted in a state Supreme Court that is one of the most conservative in the nation. This year’s retention election was the first chance for progressives to strike back.

Given the unpopularity of the court’s abortion decision, it seems as if pro-choice groups may actually pull it off. No Arizona justice has ever lost a retention election, which requires that they receive 60 percent of votes to remain on the bench. But some judges in Phoenix have been voted out in recent years, as activists have begun to get people involved in the process of choosing and evaluating judges.

Fourteen states have retention elections for their justices, and those seats are rarely contested. However, anti-choice and anti-LGBTQ+ groups have tried to oust justices and did so successfully in Iowa in 2010. Decades ago, justices in California and Tennessee lost their seats over rulings in death-penalty cases. And in 2022, voters in northern Illinois became the first in the state’s history to oust a high court justice; billionaires like Ken Griffin donated millions of dollars for attack ads that tied a state justice to a controversial Democratic politician.

Now that pro-choice voters could oust two Arizona justices, Republicans want to get rid of judicial elections and lock the current right-wing high court majority in place.

Arizona Republicans aren’t the only ones seeking to end judicial elections. A similar amendment was proposed this year in Louisiana, where civil rights groups have successfully pushed for a second majority-Black high court election district. But that amendment didn’t go forward. Texas Republicans set up a commission to explore switching to an appointment system, after Black women and Democrats performed relatively well in the 2018 elections. In North Carolina—where lawmakers last year created 10 new judgeships that are chosen by the Legislature, not the voters—legislators are considering an amendment that would double the terms of elected judges and ensure GOP control of the high court for nearly a decade.

As a result of its decision, in Dobbs, to end the constitutional right to an abortion, the U.S. Supreme Court falsely promised that voters across the country would now, state by state, decide the abortion question. But Republicans want to strip voters of the power to determine the fate of abortion laws. As the Arizona amendment is happening, Republicans in Ohio and elsewhere are trying to make it harder for voters to put constitutional amendments on the ballot and enshrine abortion protections into law.

Progressive voters in Arizona and across the country have begun to realize, through the ballot, the power they have to protect abortion rights, including by selecting judges that will strike down laws depriving patients of reproductive care. Hopefully they will also continue to be savvy enough to reject efforts, like the one pushed by the Arizona GOP, to take that power out of their own hands.