Kilbride’s Loss: The Battle for the Supreme Court of Illinois
Historically, down-ballot elections have been quiet affairs with little news coverage. Yet often, down-ballot elected officials play a far greater role in the day-to-day lives of individuals than most people realize. Unfortunately, judges are also part of this group. Across the country, close to 90% of state judges face some form of election during their service. These elections attract millions of dollars in spending by special interest groups and political parties, as state courts hear 90% of cases, and set precedents in all areas of law.
In Illinois, the seven Supreme Court Justices serve 10 year terms. However, unlike in most states, Illinois uses both partisan elections (where judicial candidates compete head-to-head with their party listed on the ballot after qualifying in partisan primaries) and retention elections (referenda on the judicial candidate). Uniquely, the Illinois Supreme Court (instead of the Governor) fills all judicial vacancies, including those on the Supreme Court itself. Pennsylvania is the only other state that follows this judicial selection method. Non-incumbent candidates must run in partisan primaries followed by partisan general elections. While incumbents who previously won in a general (head-to-head) election only face a retention election, the Illinois Constitution requires they must secure 60% of the “Yes” vote to earn another term. In addition, Illinois is one of just four states that use districts to elect their state’s highest court. Unlike legislative districts, judicial districts do not split counties. All districts elect one Justice, except District 1, which covers Cook County and elects three Justices.
In 2020, Justice Thomas Kilbride (who represents the 3rd district) ran in a retention election for his seat on the Illinois Supreme Court. The political stakes for the election could not have been higher, as Republicans (who already controlled three seats on the Court) sought to win a majority on the Court, allowing them to check Democratic dominance of the state government. Defeating Kilbride would create a 3–3 deadlock on the Court between Democrats and Republicans. Since the Court itself fills its vacancies, it would remain deadlocked until 2022, when Republicans believed a low-turnout election would create a Republican-majority Court.
As a result, both parties spent a total of nearly $11 million on the election. Republicans attacked Kilbride for his close ties to longtime Illinois House Speaker Michael Madigan, who faced federal investigation for a bribery scandal and spent profusely on Kilbride’s retention bid. While Kilbride refused Madigan’s money, it was not enough. Kilbride’s largely rural district had voted for Trump in 2016, and Trump increased his margins there in 2020. Winning 60% of the vote was out of the question. Kilbride won 56% of the vote, losing his seat and opening a vacancy on the Court. However, the Republican ploy ultimately failed, as the Court unanimously appointed former Appellate Judge Robert L. Carter, a Democrat, to fill Kilbride’s seat until the 2022 election for a new term.
So, what is next for the Court’s partisan balance? For the first time in sixty years, the Illinois General Assembly redrew the Illinois Supreme Court districts to account for the population imbalance between the districts. These new districts will likely tilt the balance of the Court even further towards Democrats.
The 1st district was not changed geographically, continuing to cover Cook County, the most Democratic county in all of Illinois. Cook County has voted Democratic by double-digit margins in Presidential elections for a long time and is about 25 points to the left of the nation (calculated using the Cook PVI method). Three Justices affiliated with the Democratic Party (Chief Justice Anne Burke, Justice Mary Jane Theis, and Justice P. Scott Neville Jr.) represent this district on the Court. This district will remain safe for the Democrats.
The 2nd district, represented by Justice Michael J. Burke, a Republican, was redrawn to exclude the northwestern counties and is now composed entirely of so-called “collar counties” that surround Chicago. It now includes just DeKalb, Kendall, Kane, Lake, and McHenry counties. The new 2nd district is about 4.5 points more Democratic than the nation, while the old district was only 3.5 points so. The collar counties, which are dominated by college-educated suburban residents who are more progressive than the average American on social issues, have moved to the left in recent years, and this trend is likely to continue as the GOP has fully embraced Trumpian politics. Because Burke is up for partisan election in 2022, meaning he will have to run against other candidates, a savvy Democratic campaign that makes his candidacy salient to the voters could easily defeat him. However, Democratic down-ballot apathy will remain a challenge, and Burke will likely be re-elected barring unusual circumstances.
The 3rd district (represented by Justice Robert L. Carter) was substantially shrunk, with its western portion cut off and drawn into the 4th district to equalize the populations between the two districts. It now consists of Bureau, LaSalle, Grundy, Iroquois, Kankakee, DuPage and Will counties. While the old 3rd district was more than 4 points to the right of the nation, the new one is 1 point to the left of it. However, it, like the old district, are both trending rightward. Many of these counties are the classic white working class communities which were loyal to the Democratic Party due to unions, but shifting rapidly to the right after the campaign of Donald Trump, explaining the gradual shift to the right. Justice Kilbride’s defeat will likely empower local and state Republicans to aggressively oppose Carter’s retention when he is on the ballot in 2022 in a partisan election. The district will be a tossup due to its miniscule partisan lean and Democratic down-ballot apathy, though the incumbency advantage mitigates these two factors somewhat.
The 4th district (represented by Justice Rita B. Garman) was expanded territorially, losing its eastern half but gaining the western halves of the old 2nd and 3rd districts. It now consists of Jo Daviess, Stephenson, Carroll, Ogle, Lee, Winnebago, Boone, Mercer, Rock Island, Whiteside, Henry, Stark, Putnam, Marshall, Peoria, Tazewell, Adams, Pike, Calhoun, Schuyler, Brown, Cass, Mason, Menard, Morgan, Scott, Greene, Jersey, Macoupin, Sangamon, Logan, McLean, Woodford, Livingston, Ford, Henderson, Warren, Knox, Fulton, McDonough and Hancock counties. Its redistricting caused it to move 2 points to the left (though it still remains 9 points to the right of the nation). It will remain a safe Republican district, and though in theory Democrats could deny Garman the 60% majority she needs at her next retention election in 2022, rank-and-file Democratic down-ballot apathy will make the possibility of Garman’s removal a pipe dream.
The 5th district (represented by Justice David K. Overstreet) expanded slightly, losing some of its northwestern counties but also acquiring counties to its north and northeast from the old 4th district. It now consists of DeWitt, Macon, Piatt, Moultrie, Champaign, Douglas, Vermilion, Edgar, Coles, Cumberland, Clark, Christian, Shelby, Montgomery, Fayette, Effingham, Jasper, Clay, Marion, Clinton, Bond, Madison, St. Clair, Washington, Monroe, Randolph, Perry, Crawford, Richland, Lawrence, Wabash, Edwards, Wayne, Jefferson, Franklin, Hamilton, White, Gallatin, Hardin, Saline, Williamson, Jackson, Union, Johnson, Pope, Alexander, Pulaski, and Massac counties. Its redistricting moved it nearly 3 points to the left, though it remains solidly Republican (nearly 14 points to the right of the nation). This is the safest district for Republicans.
Democrats should concentrate their efforts on the swing-seat 2nd and 3rd districts if they are interested in maintaining their dominance over Illinois’ state government, as they only need to win one non-Cook County seat to maintain a majority on the Court.