Pa. GOP seeks to gain control of state’s highest court, where final decisions are made on voting and abortion

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State judicial elections typically garner little attention, but Pennsylvania’s 2025 state Supreme Court races are shaping up to be the next major political battleground. Three justices — Christine Donohue, Kevin Dougherty and David Wecht — are seeking to retain their seats on the state’s highest court, but Republican activists are looking to nix them from the court.

If two of the Democrats were to be unseated, Republicans would then gain a majority on the state’s highest court. Scott Presler, a Republican voter registration activist known for his grassroots efforts during the 2024 presidential election, is campaigning to get voters who have galvanized behind President Donald Trump’s “Make America Great Again” movement to vote against retaining the three Democratic justices, citing their past rulings on pandemic “lockdowns” and voting laws.

He accuses Democrats on the court of helping Joe Biden win in 2020.

“They allowed and engineered the stolen election here in the Commonwealth of Pennsylvania,” he told a group recently in Erie. “If you want justice, if you want accountability, if you want to reshape Pennsylvania, you vote no to these people.”

The state Supreme Court ruled in 2020 that counties are allowed to accept mail-in ballots postmarked by Election Day and which are received up to three days later, shooting down Republican-led challenges to have the ballots not count toward that year’s election. The decision was upheld by the U.S. Supreme Court in 2021 in a 4-4 split decision, without newly appointed Justice Amy Coney Barrett.

We “could have a 5-to-2 Republican majority on the Pennsylvania Supreme Court going into the 2028 presidential election,” Presler told the Delaware Valley Journal.

That has Kadida Kenner, a voting rights activist and CEO of the New Pennsylvania Project, concerned about the impact on how the court makes those decisions. She says that a “MAGA majority” on the court would lead to voter suppression, as well as restrictions on reproductive rights.

“There are some folks in these political times that are trying to make decisions coming out of our courts more political,” she told WHYY News, adding that the stakes have never been higher.

“It’s really important to ensure that our congressional districts and those maps are not gerrymandered politically or racially,” she said. “And it’ll be the state courts to determine whether or not people have access to abortion in the Commonwealth.”

Judicial elections

Pennsylvania is one of only eight states where Supreme Court justices are initially selected through partisan elections, similar to politicians like the governor and state lawmakers. However, when a justice’s 10-year term is coming to an end, they are up for a non-partisan “retention election” in which voters vote “yes” or “no” as to whether they should serve for another term.

Democrats currently hold a 5-2 majority on the seven-seat court but three Democrats are nearing the end of their terms, giving Republicans an opportunity to alter the court’s composition and set the stage for a significant shift in judicial philosophy.

If any of the justices are not retained, Gov. Josh Shapiro would appoint a temporary replacement, subject to confirmation by the Republican-controlled state Senate. A special election would then be held in 2027 to fill the seat for a full 10-year term.

However, Shapiro’s selections would have to be approved by the state Senate meaning those seats might not be filled until then. Kenner said that’s enough reason to keep them in their seats.

“How do you make determinations without a full court and without having another judicial election until 2027?” she said. “There could be vacancies when there’s so many important decisions that are going to coming out, most likely from the 2025 election, 2026 elections. There will be a huge disruption.”

MAGA impact

Historically, judicial retention elections in Pennsylvania have been low-profile affairs, with judges seldom facing organized opposition. Only one Pennsylvania Supreme Court justice has lost a retention election. In 2005, Justice Russell Nigro was voted out by voters apparently upset over the state legislature’s late night approval of a pay raise for all three branches of government, which then-Gov. Ed Rendell signed.

This year, Republican operatives and conservative groups are mobilizing resources to challenge the retention of the three justices. Presler said that “the Republican Party dropped the ball in 2015,” in “allowing” the Democrats to win the seats and is now barnstorming the state, registering voters for the effort at farmers markets and festivals. He has told reporters that he has around two dozen staffers at his nonprofit, Early Vote Action, to support the campaign.

Presler’s claim that the court “stole” the election for Biden stems from a 2020 ruling in which the court said that mail-in ballots could be counted up to three days after Election Day, as long as they were postmarked in time. Democrats and voting access activists argued that strict deadlines would disenfranchise voters during the COVID crisis.

State election officials said that only 10,000 mail-in ballots were impacted, too few to affect the outcome of the election, in which Biden won Pennsylvania by over 80,000 votes.

At the Erie event, Presler also blamed Democrats for approving the pandemic policies of former Gov. Tom Wolf, who he called “a terrible human being.”

“He shut down your schools. He shut down your churches. He shut down your businesses,” Presler said. “Do you know who gave Democrat Gov. Wolf the power, the authority to keep you shut down while Florida opened up, while Georgia opened up, while other states opened up? Democrat Justice Donahue, Democrat Justice Daugherty, Democrat Justice Wecht.”

Presler founded Early Vote Action in 2023, aiming to increase conservative voter turnout and promote various voting methods, including early, absentee and mail-in voting. During the 2024 election cycle, Presler and Early Voting Action focused efforts on key battleground states and registered over 50,000 new voters in Pennsylvania.

Presler’s outreach extended to underrepresented groups, such as the Amish and hunters, aiming to mobilize conservative-leaning voters who historically had lower participation rates. Notably, billionaire Elon Musk contributed $1 million to Early Vote Action in August 2024.

Presler’s efforts received recognition from Trump and he was called on to speak at Trump’s second Butler rally. Following the 2024 elections, Early Voting Action announced plans to expand operations into states like New Jersey, aiming to replicate their voter registration and mobilization strategies.

The Elon Musk effect

Kenner argues that the justices deserve to be retained by the standard that they were “following the letter of the law and they were making determinations based upon the Pennsylvania state Constitution,” rather than based on political affiliations.

“Pennsylvanians have enjoyed better access to the ballot because of the Pennsylvania Supreme Court and the justices that currently sit there,” she said. “Pennsylvanians are now closer to having more equity-funded public schools because of the Pennsylvania Supreme Court.”

Democrats have also expressed concern that Musk may get deeply involved in the race, as he did in Wisconsin where he spent millions of dollars supporting a conservative candidate. Interest in the race by George Soros and others led to hundreds of millions in spending overall, making it the most expensive judicial race in history.

Despite Musk’s efforts, the “liberal” candidate won that election by several percentage points, leading to speculation that his involvement worked against his preferred candidate.

“I think Elon Musk’s money is formidable, but the stench of Elon Musk is more formidable,” state Sen. Sharif Street, who chairs the Pennsylvania Democratic Party, told WHYY News.

Kenner says she hopes that voters in Pennsylvania learn from that.

“Wisconsin voters spoke up and spoke out, came out in record numbers,” she said. “Pennsylvania’s going to have to have that same type of energy to overcome any campaigns and attempts to disrupt the independence of our state court.”