Voters angered that the Arizona Supreme Court upheld a Civil War-era abortion ban earlier this year are channeling that rage on the campaign trail. They want to use their ballots to remove two of the four justices who made that decision.
But Republican state lawmakers put another question on the ballot — Proposition 137 — that could undermine the voters’ choice.
Arizona’s Supreme Court justices serve six-year terms. After they’re appointed by the governor, they’re up for reelection by popular vote at the end of each term. But Republicans sent a question to the ballot that would eliminate that choice over the objection of Democrats.
“As Arizonans, we fundamentally believed that the people, not politicians or the government, should have a say on the most powerful people in the criminal legal system, which is the justices on our courts,” Rep. Analise Ortiz said during legislative debates over the GOP proposal.
Ortiz argued Proposition 137 would effectively allow lifetime appointments for Supreme Court justices, judges on the Court of Appeals and at trial courts in Arizona’s largest counties.
“And I think now, as much as ever, the people are aware of the tremendous power and the way it can be abused,” she said.
But what truly angers Democrats is the question’s retroactivity clause. Republicans crafted Proposition 137 so that, if voters approve their legislative ballot referral, it would override any decision by voters on whether to give the justices on this year’s ballot another six-year term.
The only two justices on this year’s ballot are GOP appointees Clint Bolick and Kathryn King, each of whom helped cast the decision upholding Arizona’s territorial abortion ban.
Democratic Rep. Charles Lucking called the GOP’s proposal a nakedly partisan attempt to keep GOP-approved justices in power.
"This is a political power grab by partisan politicians who want to rip choices away from the voters,” he said during debate. “The law literally states that this year's retention elections will not count.”
Republican Rep. Matt Gress said he supports Proposition 137 specifically because some organizations are encouraging voters to oust the two justices because of their decision regarding the Civil War-era abortion law.
“What I fear is happening before our eyes is a radical movement to remake an independent judiciary in the eyes of one partisan belief,” Gress said. “That could not be more dangerous to our society, to our system than it is right now.''
Bolick, whose job as a justice is on the line in November, wrote an op-ed in the Arizona Republic in May accusing those campaigning for his ouster of weaponizing judicial retention to “replace us with justices who will rubber-stamp their ideological agenda.”
But Democrats say the current court is far from independent.
According to Rep. Judy Schweibert, it’s former Republican Governor Doug Ducey who politicized the supreme court in the first place. In 2016, Ducey expanded the court from five to seven justices. He wound up appointing six justices during his eight years in office, including five of the current seven on the bench.
That includes Bolick, who Schweibert argued wasn’t chosen for his judicial qualifications.
“He got the job when Gov. Ducey made the political decision to pluck Bolick, who is (was) not even a judge, from the politically hard-right Goldwater Institute and make him an Arizona Supreme Court justice,” she said on the House floor.
All current justices were appointed by Republicans. Ousting Bolick and King would give Democratic Governor Katie Hobbs the chance to shake up the supreme court.
Justice Robert Brutinel already announced he’s retiring at the end of month, ensuring at least one justice will soon be appointed to the bench. If both Bolick and King are shown the door, Hobbs could appoint three justices in a matter of months.
