WASHINGTON — From fiery debates over controversial issues to promises for swing state voters, high-profile factors typically sway the results of a presidential election.
But sometimes, these factors come in the form of a state-level race a year out from Election Day. In less than a month, Pennsylvania voters will cast their ballots in the state’s 2023 Supreme Court race between Democratic candidate Dan McCaffery and Republican candidate Carolyn Carluccio.
The judge they elect could shape the 2024 presidential election.
In recent years, lawsuits over voting issues and allegations of election fraud have rocked Pennsylvania. After the 2020 election, former President Donald Trump’s campaign filed a lawsuit alleging Philadelphia officials violated state law while ballots were being tallied, which the Pennsylvania Supreme Court dismissed.
Contentious debates around Act 77, Pennsylvania’s mail-in-voting law, have also landed at the state’s Supreme Court.
But if arguments over ballots, polling places and other voting questions emerge in the 2024 presidential election, whoever is elected to the state’s Supreme Court this year could be crucial as these fights play out in Pennsylvania.
“The state Supreme Court often ends up being the final arbiter of these kinds of disputes,” Dan Mallinson, an associate professor of public policy at Penn State University, told USA TODAY.
Here’s how this state-level race could have major implications for the 2024 race for the White House.
Two contestants in the Pennsylvania race: McCaffery and Carluccio
McCaffery, a Pennsylvania superior court judge, told USA TODAY he was inspired to launch his campaign by recent U.S. Supreme Court decisions affecting Americans across the country.
He pointed to the high court’s decision to overturn Roe v. Wade last year, ending the constitutional right for women to have an abortion, as well as rulings on the First Amendment and LGBTQ rights.
“I thought it was important for me – someone with my experience – to kind of jump into the race,” he said, describing his career as “in pursuit of social justice.”
Though he hasn’t ruled on election litigation, McCaffery said that, broadly speaking, officials should “be looking to include votes, not looking for ways to disqualify votes based upon perceived technicalities.”
If Trump loses the 2024 race, the former president may bring allegations of election fraud to the Pennsylvania court.
“If he has a matter in front of the Pennsylvania Supreme Court, and I’m on it, he will get a fair and final opportunity to present his case fairly, and then I will make an impartial decision on the merits of the case,” McCaffery vowed.
Carluccio, a judge for the Montgomery County Court of Common Pleas, told USA TODAY she believes “Pennsylvanians want and deserve a just a judge who is impartial and fair, and a judge who applies law and uphold the Constitution.”
She pointed to her time as a federal prosecutor representing victims of crime. And, though she hasn’t ruled on election litigation, she has served as a member of the board of elections in Montgomery County.
“I am not an activist judge,” Carluccio said. “I cannot emphasize that enough. It is not my role, nor should it be any judge’s role to change the law or to write the law or to implement policy.”
She has previously criticized Act 77, Pennsylvania’s mail-in voting law. Earlier this year, she told a Republican forum that “Not much I can say, but I can tell you that Act 77 has been very bad for our Commonwealth,” the Associated Press reported.
But Carluccio told USA TODAY she would apply the act, since it is state law, adding that “election laws must be applied consistently.” However, she argued that there was inconsistency with the Pennsylvania State Supreme Court’s rulings on undated and incorrectly dated ballots.
“It’s not how they ruled,” Carluccio said. “It’s more that there was a little inconsistency there and people were confused. And again, our electorate deserves to understand the laws.”
Mona Cohen, a 69-year-old retired special education teacher in Philadelphia, thinks that McCaffery “has stood for equal rights for a very long time.”
He “will preserve the right of everybody to vote, and the right of everybody to have unfettered access to vote and not have to face obstacles.”
“I think he’s well rooted in fairness. I think that’s a guiding principle,” she said.
Tina Burns, a 58-year-old healthcare consultant in Tamaqua, said “I truly believe our democracy is on the ballot, not just in 2024 but in the judicial elections, such as the 2023 (race), hence my vote going for Dan.”
But Hamlet Garcia, a 52-year-old insurance agency owner in Upper Holland, said she values that Carluccio “will be a judge who will follow the law and not be a political activist.”
“The judicial branch of government is supposed to interpret the law, not make the law. So I think that’s what she would do,” referring to Carluccio’s record as a judge and public defender.
Michelle Nestor, a 50-year-old real estate agent and home improvement contractor in Mechanicsburg, agreed, saying she believes Carluccio “does not sway to either side. I believe she truly shows blindness to the law.”
When asked about election cases, Nestor said she believes Carluccio “will go into it with the utmost integrity.”
“I think it’s important to everyone, no matter which side of the aisle you’re on as a candidate, voting integrity is huge, and it’s an important issue,” Nestor said. “And if anything were to arise from next year’s elections that would be seen in front of the courts. I know that she would definitely uphold the Constitution and the law at the time.”
2024 elections are approaching
The composition of the Pennsylvania Supreme Court has become more competitive in recent years, according to Wesley Leckrone, the chair of political science at Widener University.
“Democrats took a 5-2 majority after winning three races in 2015. Republicans won an open seat election in 2021 to keep the status quo split on the Supreme Court,” he said. “Recent races have been contentious and flooded with campaign money. 2023 is no different.”
Currently the court has a 4-2 Democratic majority, following the death of Justice Max Baer. If Carluccio were to be elected, the majority balance between parties wouldn’t change, but she would narrow the margin.
Michael Nelson, a political science professor at Penn State University, explained that courts often have to decide “hyper-partisan” issues, and as long a Democrats maintain control, “this election isn’t likely to change the results of a lot of salient decisions.”
But the race could chip away at the court’s Democratic majority, especially if justices split on issues in the future. J.J. Abbott, executive director of Commonwealth Communications, who was a press secretary to former Pennsylvania Democratic Governor Tom Wolf, said that some cases are nuanced, and Democrats could take opposing viewpoints.
In cases where the courts have deadlocked, the results of this election could have big implications.
“With a current 3-3 split over counting un or mis-dated ballots, there is the potential for this election to help determine whether they should be counted,” Leckrone said.
He added that if the 2023 race did result in a narrower 4-3 Democratic majority, future elections could flip the majority on the court, resulting in potential challenges to Act 77.
Craig Green, a professor of law at Temple University, predicted that that Carluccio’s election could cast a long shadow in the state ahead of 2024, stretching beyond races for judges.
“Carluccio’s election in 2024 would signal an immediate red shift in Purple Pennsylvania,” Green said. “It might also shift future elections in a red-leaning direction. And both of those things might be signs of more changes to come.”
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