With partisan push & abortion in focus, the stakes are high in KY’s supreme court races

If the vote on an anti-abortion constitutional amendment fails, all eyes will be on the Kentucky Supreme Court as it considers the merits of a lawsuit against the state’s near-total ban on abortion.

But first it has to get through its own ballot test on Nov. 8, where its makeup could change significantly depending on the results. And a major out-of-state conservative Super PAC is poised to try and steer the results in one direction.

Fair Courts America is targeting Northern Kentucky’s 6th Supreme Court district and near-Western Kentucky’s 2nd district, supporting two non-jurist candidates preferred by many in the state conservative establishment in those races. Between those two races and Franklin Circuit Court, it’s got $1.64 million to sling around, according to a strategy document that has was posted publicly on the PAC’s website and later taken down.

As of Thursday, Fair Courts reported spending $200,000 in funds for those races. As a Super PAC, the source of that funding is untraceable. The group had sent out a mass text with a video ad critical of Franklin Circuit Judge Philip Shepherd’s ruling in a sex offender case, as well as a mailer featuring the same case.

Between the PAC money, the hot-button issues at hand for the court, and varying degrees of politicization in the respective nonpartisan elections, the stakes in both the 2nd and 6th districts have arguably never been higher. The amount of money and attention certainly hasn’t been higher.

Conservatives have easily taken hold of the state’s legislative levers of power, and in Fair Courts America as well as Fischer’s campaign tactics they appear poised to take a stab at further cementing power through the judiciary.

Much has been made of the 6th Supreme Court District showdown, with the state’s most prominent anti-abortion legislator in Rep. Joe Fischer, R-Ft. Thomas, running a test case in how partisan a nonpartisan election can get. He’s trying to unseat incumbent Supreme Court Justice Michelle Keller, who has decried Fischer’s campaign tactics as “cheating” the state’s regulations on partisanship in judicial races. Fischer has even filed a lawsuit challenging the state’s Judicial Conduct Commission on that score.

The 2nd District race is not as headline-grabbing, but it’s a seat on the seven-person court nonetheless – and the same conservative super PAC has targeted the Bowling Green-centric region for its preferred candidate in Shawn Alcott. Alcott is an experienced attorney in the region running against Court of Appeals Judge Kelly Thompson Jr.

Key issues facing the court: abortion, redistricting

In 2019, the Kentucky state legislature passed a ‘trigger ban’ on abortion, outlawing any abortion that was not deemed medically necessary – to the chagrin of many, the ban did not include exceptions for rape or incest. But that ban didn’t take effect until the U.S. Supreme Court overturned Roe v. Wade. Now the law, along with a six week ban, is in the hands of the state supreme court in a suit pitting abortion providers against Republican Attorney General Daniel Cameron’s office, with oral arguments scheduled for mid-November.

Their decision could be made for them by the voters if Kentuckians approve an anti-abortion constitutional amendment on Nov. 8. But if it fails, the Kentucky Supreme Court will move forward.

The current supreme court intends to take on the case – meaning that Minton, and potentially Keller if she’s defeated, would weigh in – but it’s not guaranteed.

“We cannot say definitively that an opinion will be rendered before the end of the year, but it is always the intent that the Court that hears a case will decide that case,” said Katie Shepherd, Minton’s chief of staff.

Given the timing of the state’s controversial redistricting case, though, it appears likely that a supreme court hearing on redistricting will take place with the next court.

A case regarding the newly-drawn redistricting maps – which pits the Kentucky Democratic Party against Cameron’s office in a battle over whether the House and U.S. Congressional district maps were drawn in an unconstitutional way – will almost certainly make its way to the Kentucky Supreme Court, given both sides’ commitments to appeal a ruling from Franklin Circuit Court, where judge Thomas Wingate is still reviewing the case.

The KDP argues in its suit that the maps, drawn by the GOP, violate sections of the state constitution including a section that guarantees that “elections shall be equal and free,” and that the counties that are split in the House map are split excessively.

Court races become more partisan

For University of Kentucky College of Law Professor Josh Douglas, the stakes of these judicial elections could be even higher than the fate of the abortion law in Kentucky.

“I think a point that’s been lost in the shuffle of focusing so much on a case’s outcome – the abortion case – is that the Kentucky Supreme Court is going to be risking a change in terms of the way in which partisanship seems to be infecting other courts.”

That nonpartisanship, he said, is due to the steady hand of Chief Justice John Minton, a respected jurist who’s held the highest judicial post in the state since 2008.

The state supreme court, Douglas said, has been “pretty darn good” about avoiding partisanship under his tenure. But that future is uncertain with Minton retiring.

“My concern is that without the chief’s steady hand trying to ensure that the court remains above the partisan fray that we may be seeing some of the battles here that we see in other states. I think that’s the really important aspect of the supreme court election this year,” Douglas said.

Though both could soon see an influx of outside money supporting candidates closely backed by state Republicans, the races in the 6th and 2nd district are quite different in terms of the partisan divide that candidates are staking out.

Fischer is testing the limits of partisanship in his Northern Kentucky race. He’s branding himself as “the conservative Republican” in his campaign materials – that and other actions have led to some calling into question whether or not he’s abiding by the constitutionally required nonpartisan nature of judicial elections.

Keller, who is a registered Independent and was appointed by Gov. Andy Beshear’s father, former Democratic Gov. Steve Beshear, says that his embrace of partisan politics threatens the Kentucky judiciary as we know it.

“This is about keeping an independent judiciary. And this is about people within and outside of our state trying to take over the judiciary. It’s about one branch of government unabashedly saying they want to control the other, and that just doesn’t work in a democracy,” Keller said.

Fischer, meanwhile, has expressed a desire to make judicial elections partisan, as they are in other states like Ohio where his brother is a state supreme court justice.

Meanwhile, the two 2nd District candidates are running a much lower-key, less partisan race. But many Republicans have joined longtime Kentucky Senator Mitch McConnell, whose Bluegrass Committee contributed $1,000, and area Congressman Brett Guthrie in supporting Shawn Alcott.

Alcott, a healthcare attorney who’s worked with local government as well, does not shy away from being a conservative, but has not taken the same steps to signal her partisanship as Fischer. She emphasized in an interview that she’s “committed to preserving a strong and independent judiciary,” and expressed a deep respect for the justice system the way it currently operates.

She and Thompson both declined to talk about their stances on the issue of abortion.

Kelly Thompson, meanwhile, is also a registered Republican – at least, he has been since earlier this year. Thompson, who has a history with the Democratic party as early as running against Martha Layne Collins for the Democratic nomination to Clerk of the Court of Appeals in the 1970s, said that he switched to the GOP in 1990s, then went Independent in 2005 before returning to the Republican party.

Why?

“I went back to Republican this year because that’s just the way you have to be. These partisan politics are something,” Thompson said. “I mean, I’ve gotten probably 20 phone calls asking me what I’m registered, and every one of them are people saying ‘I’m not going to vote for you if you’re not registered Republican.’”

Thompson emphasized that he’s “lost all passion” for partisanship after his 16 years as a judge.

“I just don’t feel any partisanship at all. I’ve lost all my passion for partisanship by being a judge for 16 years. And 99.9% of the cases that we decide, are just grind-it-out dispute resolution between parties. They don’t have anything to do with politics.”

Another PAC backed by a more progressive donor base from within the state has materialized to potentially counter Fair Courts, though it’s not confirmed that it will contribute to judicial races. Liberty & Justice for Kentucky is funded primarily by Kentucky Educators PAC (KEPAC) and prominent Democratic donor Christ Brown, of the Brown-Forman distillery family. It’s spent $100,000 already, per KREF. A representative of the PAC did not respond to an inquiry on Thursday and KEPAC declined to comment on Liberty & Justice’s intentions, though KEPAC itself has endorsed the three judicial candidates running against many conservatives’, and likely Fair Courts’, preferred picks.

Name recognition, fund-raising and ads

Voters in Bowling Green, in particular, are likely to have seen Shawn Alcott’s last name before. Her brother-in-law is Todd Alcott, the mayor of Bowling Green.

But many voters in the area have already penciled in Thompson for judge, having won his most recent term on the Court of Appeals by a 70/30 margin. Alcott doesn’t have that advantage.

And the Thompson name has a rooted history in Western Kentucky University tradition. Thompson’s dad, with whom he shared a name, was a popular president from 1955 to 1969 – the school’s enrollment grew by 600% during his tenure. And Thompson remembers his father taking great pains to get to know students on a personal level, making a point to bring an umbrella on rainy days to escort students from building to building while getting to connect with them on a personal level.

From a name ID standpoint, Western Kentucky University political science professor Jeffrey Budziak said that Thompson has the natural advantage, particularly given the relatively low amount of voter attention often given to judicial races.

“You’re starting with an advantage with high name recognition in a judicial race. While Thompson is not an incumbent, he’s pretty close to functioning as one for many of our voters, so I think you wouldn’t want to bet against him. It absolutely does not mean Alcott can’t win this race, but I think he’s starting ahead because of the name recognition.”

In many counties, Thompson has been on the ballot for more than just the terms he’s won, too. Thompson said that he beat Chief Justice John Minton in 12 of the 14 counties – several of which are in the current 2nd Supreme Court District – in a mid-2000s race he ultimately lost to Minton for Court of Appeals.

Other races, particularly in the Bowling Green area, could overshadow Thompson and Alcott’s race, Budziak said. He also added that he doesn’t foresee area Democrats or WKU students rallying around Thompson in the way that they’re rallying around the reelection of Rep. Patti Minter, D-Bowling Green, who’s one of a handful of elected Democrats outside of Louisville or Central Kentucky.

More traditional, “old school” Democrats are likely to support Thompson, though, Budziak said. Much of the district is part of a pocket of Kentucky that used to reliably support Democrats but has shifted towards the GOP up and down the ballot in recent years.

Excluding direct PAC involvement, Alcott has a slight fundraising lead. She’s amassed more than $129,000 while Thompson has received about $112,000. They’ve both spent on television ads at the local Bowling Green stations, WBKO and WNKY, remaining positive thus far, as well as digital and print advertising.

Fischer versus Keller, meanwhile, is a different comparison. Fischer has been an elected official for a relatively small district, but for a long time. After 10 years in local Ft. Thomas government, he’s spent more than 20 years representing his district, often winning general election contests easily. Keller has one 17 percentage point victory under her belt in the old district, which is similar to the new one.

In terms of fundraising, Keller has raised significantly more than Fischer. Keller has more than tripled Fischer’s campaign receipts, raising about $214,000 to his $56,000.

Beyond the involvement of Fair Courts America, Fischer’s deficit has already been more than made up by another conservative PAC. The Republican State Leadership Committee’s Judicial Fairness Initiative dropped an ad earlier this week decrying Democratic President Joe Biden and House Speaker Nancy Pelosi’s “socialist agenda” and touting Fischer’s conservatism and commitment to “oppose liberal efforts to legislate from the bench.” It’s backed by a $375,000 cable television commitment, according to a release. Fischer also got a recent boost from Commonwealth Policy PAC, an in-state group backed by several GOP insiders and elected officials. The group sent out a mailer in the region that praised Fischer as a “constitutional conservative” and also urged voters to vote “yes” on the anti-abortion constitutional amendment he sponsored.

But, with the support of Fair Courts America behind Fischer, Keller wondered if that will matter as much. She suggested that it could be likely that the group will run an ad similar to the one against Shepherd, the longtime Franklin Circuit Court judge, against her and potentially Thompson, since Fischer and Alcott don’t have the same voluminous public record that longtime jurists do.

Fischer did not respond to a request for comment about Fair Courts America, and Alcott’s campaign said that they were not aware of any Super PAC plans.