Democratic wins shift power balance on Michigan Supreme Court

Two Democratic-backed justices have claimed victory in the race for two seats on the Michigan Supreme Court, shifting the court’s ideological makeup narrowly to the left.

The unofficial 4-3 Democratic majority followed the high court’s announcement on Wednesday afternoon that Elizabeth Welch, a Grand Rapids attorney, had edged out Republican nominee Mary Kelly, a St. Clair County former prosecutor, for the second of two open seats on the court. Welch will replace conservative Justice Stephen Markman, who was prevented by the court’s age limits from seeking reelection. 

As of Wednesday afternoon, Welch had captured 19.5 percent of the vote to Kelly’s 17.5 percent, a differential of 99,513 votes. The Associated Press had not yet called the race, but the Supreme Court issued a statement from McCormack welcoming Welch to the court.

Earlier Wednesday, incumbent Chief Justice Bridget Mary McCormack secured re-election to a second eight-year term. By early evening, she had garnered 31.9 percent of total votes cast. 

Welch and McCormack were among seven candidates vying for the seats, in a race that may well shift the court’s future ideological leanings. McCormack was considered a shoe-in for re-election because she is an incumbent, a designation that appears on state ballots.

The Supreme Court race, while technically nonpartisan, has deep political significance. The court is frequently asked to settle politically-charged debates, most recently an October decision along partisan lines that limited Gov. Gretchen Whitmer’s COVID-19 emergency powers.

The justices, while identified as nonpartisan, are nominated by political parties. Of the seven candidates who vied for the two seats this fall, Democrats, Republicans and Libertarians each nominated two, while the Green Party nominated one.

Before Wednesday’s Democratic sweep, the court often — but not always — leaned right: Four sitting justices had been nominated by Republicans, while three were Democrat-affiliated. 

Political experts told Bridge Michigan that Welch’s victory could affect the outcome of key political issues that could reach the court in the coming months, from any future challenges to Michigan’s independent redistricting effort to the fate of the Enbridge Line 5 petroleum pipeline in the Straits of Mackinac.

Welch said in an interview that she would avoid partisanship and take each case “separately and on the merits” when she takes the bench in January. 

“The justices serve nonpartisan, and I do take that very seriously,” she said. 

The high court race, which is normally low on the public radar despite the court’s pivotal role in Michigan politics, took the spotlight in early October after the court issued a 4-3 decision that struck down a 1945 law Gov. Gretchen Whitmer had used to repeatedly extend her emergency powers to enact a host of COVID-19 executive orders. Justices voted along party lines, with the soon-to-retire Markman writing the majority opinion. 

Following the ruling, Whitmer appeared on CNN and prodded voters to back McCormack and Welch “because we’ve got to have justices that do the right thing and follow the rule of law.” 

Sam Bagenstos, a University of Michigan Law professor who ran unsuccessfully as a Democratic Supreme Court nominee in 2018, said a spike in voter interest following the October ruling likely helped secure a seat for Welch. 

But Welch also campaigned “more than anyone else,” Bagenstos said, and Democrat-aligned groups worked hard to raise her name recognition. It didn’t hurt that campaign ads and yard signs aligned Welch with the better-known McCormack. 

“You need something to force the state Supreme Court into people’s consciousness,” Bagenstos said, and the emergency powers ruling combined with Welch’s campaign push succeeded in that aim. 

Welch, a former member of the East Grand Rapids Board of Education and former president of the Michigan League of Conservation Voters, comes to the court after 25 years as a lawyer. In a statement Wednesday afternoon, she pledged to “serve all Michiganders with transparency and integrity.”

“After 25 years protecting Michigan small businesses, voters, students, and natural resources, I know the impact the courts can have on our great state,” Welch wrote. “I am eager to join the chief justice and her colleagues in their important work of addressing challenges within our criminal justice system and their work toward ensuring everyone has equal access to our courts.”

McCormack, a former dean at the University of Michigan law school, joined the court in 2013. As a justice, she has worked on state task forces to improve Michiganders’ access to the legal system and reform the state’s criminal justice system. In a statement Wednesday morning, she vowed to serve with “the utmost integrity and fairness.”

“I will continue to fight for the court’s independence and for access to justice for all Michiganders,” McCormack wrote. “I will continue to work to make Michigan a national leader in ensuring transparency, fairness and efficiency in courthouses throughout the state where millions of people go for justice every year.”

In a separate statement, she praised Welch as an incoming justice with “deep knowledge of the legal issues facing businesses, governments, schools, and the environment, among other issues that regularly reach our Court.”

Political scholars and pundits who spoke to Bridge Michigan about the race said they expect the newly aligned bench to be consequential in the outcome of future decisions — but only to a point.

Although the court has held a Republican majority for years, it is ideologically centrist, said Wayne State University law professor Robert Sedler. The court’s shift toward the center followed Democratic-nominated Megan Cavanagh’s election in 2018, replacing Republican Justice Kurtis Wilder to narrow the conservative majority to 4-3. 

Sedler said he doesn’t expect Welch’s addition to the court to fundamentally change its centrist dynamics.

Since 2018, “the court has pretty much been operating as an institution, and I think that’s what we’re going to see,” Sedler said. 

That centrist bent came into play in the summer of 2018, when Republican appointees justices Beth Clement and David Viviano sided with their Democratic colleagues on court cases that affirmed school districts’ right to ban guns on school property and upheld putting a ballot proposal before statewide voters that November to create an independent commission to draw Michigan’s political boundaries. 

Clement lost some Republican Party backers during her 2018 re-election bid as a result of the rulings. 

Republican strategist Bob LaBrant partially credited McCormack for fostering a “collegial” atmosphere among justices, which he said is a departure from past courts that have had much more “ideological tension.” It was notable, for instance, that the Democratically nominated McCormack was named chief justice when the court had a Republican majority. 

But the court also sometimes votes along strict party lines. The October ruling that stripped Whitmer of her COVID-19 emergency powers is one recent example. Bagenstos said similarly politically-contentious issues are likely to arrive on the court’s docket in the coming months, and Welch’s addition to the court could affect the outcome. 

Bagenstos said he expects the court to entertain future cases about Whitmer’s COVID-19 powers. With Welch on the court, he said, such cases are more likely to weigh in Whitmer’s favor. 

Bagenstos said he also expects the court to receive lawsuits over Michigan’s independent redistricting effort, which is expected to result in new political maps for the state by November 2021. 

“The court will be asked by some candidate or office holder to throw out the redistricting plan that is adopted by the new commission,” Bagenstos said, “and I think that'll be a real test.”  

And Bagenstos said the new makeup will affect the court’s decisions on a host of lower-profile issues, from environmental protection to consumer protection and corporate malfeasance.

“There's already a center of gravity on the court that is skeptical of overweening prosecutorial power,” Bagenstos said. “And I think that will continue.”