Morning Digest: Why conservatives want to push Oklahoma's Supreme Court further to the right

No justice has ever lost reelection, but Republicans hope to end that streak

Noma Gurich is one of the three Oklahoma Supreme Court justices being targeted for defeat by conservatives (credit: Justice Noma Gurich Facebook)

Leading Off

OK Supreme Court

A conservative group is trying to move Oklahoma's Supreme Court further to the right by airing ads urging voters to vote against retaining three incumbents it's calling "activist, liberal judges." 

All three justices—James Edmondson, Noma Gurich, and Yvonne Kauger—were appointed by Democratic governors, and if they lose, Republican Gov. Kevin Stitt would have the opportunity to install their replacements. (Edmondson is the brother of former state Attorney General Drew Edmondson, the Democrat whom Stitt beat in the 2018 race for governor.)

State law prevents Stitt from simply picking whoever he wants, but, as we'll discuss, the same people trying to unseat these judges want to change that policy.

Voters will be presented with a simple "yes" or "no" question asking whether to retain the justices, each of whom is selected from one of nine judicial districts but runs statewide, for another six-year term. A loss would be unprecedented: Paul Monies writes in Oklahoma Watch that no member of an appellate court has ever lost a retention election in the Sooner State.

While the nine-member Supreme Court has generally been conservative, it frustrated Republican leaders with a pair of recent high-profile decisions. Last year, the three targeted justices were in the majority in a 5-4 decision affirming that Oklahomans have a right to an abortion in life-saving situations. While that decision still made the procedure illegal in most other situations, Stitt still blasted "this activist majority's opinion creating a right to an abortion in Oklahoma."

(The other two justices who joined that majority, Doug Combs and James Winchester, each won retention in 2022 and aren't up again until 2028. Combs is the one other member who was appointed by a Democratic governor, while Republican Frank Keating chose Winchester back in 2000.)

The Supreme Court made news again in June when it prohibited the Statewide Virtual Charter School Board from providing funding to a Catholic charter school. State Superintendent Ryan Walters, a Republican whom NBC labeled "the state's top culture warrior," responded angrily.

"The words 'separation of church and state' do not appear in our Constitution," he posted on social media, "and it is outrageous that the Oklahoma Supreme Court misunderstood key cases involving the First Amendment and sanctioned discrimination against Christians based solely on their faith."

While the votes of Edmondson, Gurich, and Kauger didn't determine the outcome of this 7-1 ruling (one justice abstained), conservatives see beating them as an important step in reshaping the state's highest court.

A group called People for Opportunity, which has ties to the influential Oklahoma Council of Public Affairs, is airing ads charging that these three justices were "nominated by the unelected liberal judicial nominating commission and appointed by Democrat governors." The commercial also highlights the three incumbent's ages, with Gurich being the youngest at 71 and Kauger the oldest at 87.

People for Opportunity, which spent $1.5 million on advertising in 2022, has not said how much it intends to deploy on this effort. But Barbara Hoberock of Oklahoma's Voice reports that the group plans to air ads during the eagerly anticipated Oct. 12 football game between the University of Oklahoma and its rivals at the University of Texas. Pat Hall, a political consultant, tells Hoberock that opponents are working to "combat the lies of OCPA and others," but no details have emerged about a counteroffensive.

Should any vacancies arise on the Supreme Court, state law requires Stitt to fill them with one of three names provided by the state's Judicial Nominating Commission, but the Council of Public Affairs is also working to end this system.

Earlier this year, the GOP-dominated state Senate advanced a proposed constitutional amendment that would have allowed the governor to nominate judges and tasked the upper chamber with confirming them. The state House, which is also run by Republicans, decisively rejected the plan, but supporters are unlikely to give up. Any amendment approved by the legislature would still need to go before voters.

The commission's defenders have pointed to People for Opportunity's new offensive to argue that the commission is once in danger. In a new social media post, attorney Bob Burke, who serves on the separate Oklahoma Supreme Court Committee on Judicial Elections, explained that the commission was set up in the 1960s in response to a massive judicial bribery scandal. 

"For more than a half century since the implementation of the retention system, there has been no hint of scandal in the appellate courts of Oklahoma," Burke wrote on LinkedIn. "The system was never meant to be inundated by dark money groups meeting in back rooms to discard independent justices in favor of justices that are believed to be more favorable to their interests. Said plainly, a new scandal is brewing."

3Q Fundraising

• TX-Sen: Colin Allred (D): $30.3 million raised

• ME-02: Austin Theriault (R): $1.1 million raised

• NM-02: Gabe Vasquez (D-inc): $2.1 million raised

Senate

NE-Sen-A

A conservative super PAC called ESAFund has reserved $2 million to help GOP Sen. Deb Fischer fend off independent Dan Osborn, Politico reports. ESAFund, formerly known as the Ending Spending Action Fund, is funded by the family of Nebraska's other Republican senator, Pete Ricketts.

House

CA-16

Assemblyman Evan Low's allies at Equality California have publicized an internal poll from EMC Research that shows him trailing former San Jose Mayor Sam Liccardo by a small 48-45 margin in the all-Democratic general election for California's 16th District. The survey, though, was finished nearly a month ago on Sept. 10.

Equality California released these numbers several weeks after two other polls showed Liccardo leading by double digits in the deep blue 16th. Last month, a pro-Liccardo super PAC unveiled an internal poll from early September that placed its candidate ahead 42-28, while a more recent independent poll conducted by a trio of universities gave Liccardo an even larger 44-27 advantage.

CA-47

Democrat Dave Min's new ad tries to compare Republican Scott Baugh to the Jan. 6 rioters by reminding viewers of a nearly three-decade-old scandal that once threatened to derail Baugh's nascent political career.

After calling Baugh "another lawbreaking MAGA extremist," Min's narrator sums up a series of campaign finance charges prosecutors brought against his opponent in 1996. "Baugh was indicted on over 20 criminal charges, four of them felonies," the voiceover says. "Finance fraud. Corruption. Perjury." 

The commercial goes on to tie Baugh to Donald Trump, who lost California's 47th District 54-43 four years ago. The ad ends by praising Min, who is running to succeed fellow Democrat Katie Porter in Orange County, as someone who has "prosecuted corruption and stood up to MAGA here at home."

The story of Baugh's old legal woes is one chapter in a truly strange period in Golden State politics that began after the 1994 Republican wave, when the GOP seized a nominal majority in the state Assembly.

Longtime Democratic Speaker Willie Brown, though, managed to remain in power for several months after he convinced one Republican member, Paul Horcher, to back him. Furious conservatives swiftly ousted Horcher in a recall election in May of 1995, but Brown and his caucus countered by elevating another Republican on the outs with her party, Doris Allen, to the speaker's chair. ("The white boys got taken fair and square!" Brown exulted.)

Allen was the target of heaps of abuse from fellow Republicans, much of it gendered, though she earned national attention when she fired back by blasting her intra-party critics as "a bunch of power-mongering men with short penises."

She was also the target of another recall campaign and ultimately resigned the speakership to focus on her election. But with Gov. Pete Wilson and other powerful Republicans urging voters to replace her with Baugh, Allen lost in a landslide in November.

Baugh's victory, plus Brown's departure to become mayor of San Francisco, finally put the speakership firmly in Republican hands the next year, but the brand-new lawmaker soon had much bigger things to worry about.

State authorities indicted the assemblyman in March of 1996 for allegedly breaking state law when he recruited a Democrat to run in the recall in the hopes of splitting the Democratic vote. However, while the charges threatened to send Baugh to prison, things soon went awry for the prosecution. Most of the charges were ultimately dismissed for, among other things, what a judge called "very grave misconduct" by prosecutors and doubts about a key witness' reliability.

Four Baugh aides ultimately plead guilty to their role in the scandal, including his former campaign manager, Rhonda Carmony, who went on to marry then-Rep. Dana Rohrabacher. The resolution to Baugh's legal problems did not come to an end until the summer of 1999 when he agreed to pay a civil fine of about $48,000 (about $90,000 in today's dollars).

This deal was finalized about a few months after Assembly Republicans made Baugh their leader after they found themselves back in the minority for good following the 1996 elections. Baugh, who would go on to chair the Orange County GOP, unsuccessfully challenged Rohrabacher in the 2018 top-two primary (the congressman lost to Democrat Harley Rouda that fall) and then Porter in the general election in 2022.

Baugh, now waging his third campaign for Congress, is hoping that voters will care far more about Min's arrest last year for drunk driving than they do about his own long-ago run-in with the law. The Republican's newest commercial features footage of police handcuffing the Democrat, who would later plead guilty to a misdemeanor, as the narrator argues that "convicted criminal Dave Min" would harm border security.

CA-49

The pro-Democratic House Majority PAC has booked $1.6 million to help Democratic Rep. Mike Levin, Politico reports, even as a fresh independent poll gives him a wide 53-41 advantage over Republican Matt Gunderson.

The Democratic super PAC, though, isn't behaving like Levin is secure in California's 49th District, which is based in San Diego's northern suburbs. HMP had not previously announced any reservations in the San Diego media market, which is home to about two-thirds of Levin's constituents. (The rest live in the Los Angeles market, where HMP previously booked more than $30 million in airtime, though the area is home to many other competitive races.)

Politico broke the news just hours after SurveyUSA, polling on behalf of the San Diego Union-Tribune and KGTV-10 News, found Levin with a 12-point lead. Respondents also favor Kamala Harris by a nearly identical 54-41 spread four years after Joe Biden prevailed 55-43 in the 49th District. We haven't seen any polls of the race since June, when SurveyUSA had Levin ahead 50-40.

Gunderson, however, is hoping his messaging can help him prevail in a historically Republican region that swung hard against Donald Trump during the last two presidential elections. AdImpact says the wealthy businessman has spent over $1 million on commercials in which he touts himself as a "pro-choice Republican."

Levin pushed back last month with a spot arguing that Gunderson is anything but a supporter of abortion rights. The congressman's ad made use of a 2022 article from the Union-Tribune in which Gunderson, who was then waging an unsuccessful bid for the state Senate, said he opposed a ballot measure to enshrine abortion rights into the state constitution.

"By not explicitly limiting late-term abortions, Proposition 1 strips these protections from California law," Gunderson told the paper. "If Californians knew the truth behind it, I don't think they'd support it with this provision either." Voters in the 49th District, though, approved Proposition 1 by a 61-39 margin, and it passed statewide by an even larger margin.

Levin's spot also reminded viewers that Gunderson's last campaign was "endorsed by the radical California Pro-Life Council, which opposes all abortions with no exceptions." The Republican's foe in that race, Democrat Catherine Blakespear, also used that endorsement to make her case that Gunderson wouldn't safeguard reproductive rights and defeated him 52-48.

NM-02

SurveyUSA's new poll for KOB 4 shows freshman Democratic incumbent Gabe Vasquez beating former GOP Rep. Yvette Herrell 51-42 two years after he unseated her by a narrow 50.3-49.6 margin in New Mexico's 2nd District. The release did not include presidential numbers for a constituency that Joe Biden carried 52-46 in 2020.

This is the first poll we've seen in several weeks for this rematch in the southern New Mexico and western Albuquerque area, but third-party groups are spending like they expect another tight battle. The two largest House groups on the Democratic side, DCCC and the House Majority PAC, have together spent around $3 million. The pro-GOP NRCC and Congressional Leadership Fund, meanwhile, have deployed over $2 million.

The race is set to become more expensive still, as CLF announced Tuesday it was reserving about $600,000 more in ad time in this district, along with more in several others. (See our Congressional Leadership Fund item below for more.)

TX-15

The House Majority PAC on Tuesday became the first major outside group on either side to launch commercials in Texas' 15th District, where Republican Rep. Monica De La Cruz faces a rematch against Democrat Michelle Vallejo.

There was no immediate word as to how much the pro-Democratic super PAC plans to spend to flip an eastern Rio Grande Valley seat that Donald Trump took 51-48 during the last presidential election.

HMP, however, previously announced $2.2 million in TV ad reservations in the three media markets that cover the 15th District, though these overlap with other competitive seats, and some of these bookings have already gone toward defending Democratic Rep. Vicente Gonzalez in the 34th.

HMP's new ad campaign in the 15th, which is running in English and Spanish, came days after it publicized an internal poll from GQR giving De La Cruz a small 48-45 advantage two years after she beat Vallejo 53-45. That poll, which is the only one we've seen of the contest, foreshadowed HMP's involvement in a constituency that it bypassed in 2022.

That decision to skip the race by HMP and its allies at the DCCC prompted anger and bewilderment among many Texas Democrats, like the party's 2014 nominee for governor, Wendy Davis.

"WTAF?!?!" Davis tweeted when she heard national Democrats were directing their resources elsewhere. "If @MichelleVforTX loses this race and the national narrative continues with the 'Ds are losing Latinos' message, we'll have @HouseMajPAC and the DCCC to thank."

That narrative has continued to percolate this year in Texas and nationally, and if gloomier predictions about Democrats' standing with Latino voters come to pass, it would spell more trouble for Vallejo in this predominantly Hispanic constituency. HMP, however, is hoping that its new foray against De La Cruz will inspire voters to take a second look at the Democrats' nominee.

"[E]xtremist Monica De La Cruz turned her back on seniors and people like me," a woman identified as Noelia tells the audience in the super PAC's opening spot. "De La Cruz voted to cut access to Medicare and Social Security. That would be devastating." Noelia goes on to tout Vallejo as someone who "will secure the border and protect Social Security and Medicare."

While the ad only makes a passing mention of border security, Vallejo herself has emphasized it in her messaging, a sharp contrast from two years ago, when she decried the "hyper-militarization" of America's boundary with Mexico. The Democrat responded to critics, including disappointed progressives, by telling the Texas Tribune she hadn't changed her beliefs.

"We can both recognize there's a problem in border security and immigration," she said, "but we can and must treat people with dignity."

Congressional Leadership Fund

The conservative Congressional Leadership Fund announced a new round of TV ad reservations on Tuesday, with about $5 million going toward 10 different media markets that cover six competitive races.

CLF also said it had booked another $2 million for what it called "Premium Sports TV Inventory across 15 major market races" and $3.6 million for streaming in 20 markets, though it did not provide any breakdowns by market, as it did for its traditional TV reservations.

The only constituency where CLF hadn't previously announced a reservation or aired ads is Wisconsin's 3rd District, where freshman Republican Rep. Derrick Van Orden is trying to hold off Democrat Rebecca Cooke. While CLF recently publicized an internal poll from Public Opinion Strategies showing the incumbent—whose name the pollster's memo repeatedly misspelled—leading 49-44, it doesn't seem convinced that "Derek Van Orden" will remain ahead without some help.

CLF is also spending more money to protect two other GOP-held seats, Arizona's 6th District and New York's 19th. The other three constituencies on the list are offensive plays for Republicans: Colorado's 8th, Maine's 2nd, and New Mexico's 2nd.

Poll Pile

• AZ-Sen: National Research Inc. (R) for Democracy Defense Project: Ruben Gallego (D): 48, Kari Lake (R): 42 (47-46 Harris)

• AZ-Sen: Fabrizio Ward (R) and Impact Research (D) for the AARP: Gallego (D): 51, Lake (R): 44 (49-47 Trump) (June: 48-45 Gallego)

• MI-Sen: Glengariff Group for the Detroit News and WDIV: Elissa Slotkin (D): 47, Mike Rogers (R): 43 (47-44 Harris) (Aug.: 44-35 Slotkin)

• MI-Sen: Research Co.: Slotkin (D): 46, Rogers (R): 41 (46-44 Harris)

• NE-Sen-A: Impact Research (D) for Dan Osborn: Dan Osborn (I): 48, Deb Fischer (R-inc): 46 (58-38 Trump)

• NV-Sen: RMG Research for the Napolitan Institute: Jacky Rosen (D-inc): 56, Sam Brown (R): 40 (49-49 presidential tie)

• PA-Sen: Research Co.: Bob Casey (D-inc): 47, Dave McCormick (R): 44 (48-47 Harris)

• PA-Sen: The Bullfinch Group (R) for the Commonwealth Foundation: Casey (D-inc): 48, McCormick (R): 39 (50-46 Harris) (Aug.: 51-39 Casey)

• TX-Sen: Mainstreet Research for Florida Atlantic University: Ted Cruz (R-inc): 47, Colin Allred (D): 44 (50-45 Trump)

• WI-Sen: Research Co.:Tammy Baldwin (D-inc): 47, Eric Hovde (R): 43 (47-45 Harris)

• IA-01: DCCC Analytics (D): Christina Bohannan (D): 50, Mariannette Miller-Meeks (R-inc): 46

• NJ-07: Global Strategy Group (D) for Sue Altman: Tom Kean (R-inc): 47, Sue Altman (D): 45 (47-47 presidential tie)

• AZ Ballot: Fabrizio and Impact: Abortion rights amendment: Yes: 53, No: 38 (June: 59-36 Yes)

• MA Ballot: Suffolk University for the Boston Globe: Allow rideshare drivers to unionize measure: Yes: 59, No: 34 (61-32 Harris)

• MA Ballot: Suffolk: Legalize natural psychedelics measure: Yes: 47, No: 46

• MA Ballot: Suffolk: Raise minimum wage for tipped employees measure: No: 52, Yes: 40

• PA-AG: Bullfinch (R): Eugene DePasquale (D): 44, Dave Sunday (R): 39

• PA Auditor General: Bullfinch (R): Malcolm Kenyatta (D): 43, Timothy DeFoor (R-inc): 39

• PA Treasurer: Bullfinch (R): Erin McClelland (D): 45, Stacy Garrity (R-inc): 40

• Los Angeles County, CA District Attorney: UC Berkeley for the Los Angeles Times: Nathan Hochman: 51, George Gascón (inc): 21 (Aug.: 45-20 Hochman)

Bullfinch's prior Pennsylvania poll was conducted for a different client, The Independent Center.

Ad Roundup

• AZ-Sen: VoteVets - pro-Ruben Gallego (D) (part of $1 million buy)

• MD-Sen: Larry Hogan (R) - anti-Angela Alsobrooks (D)

• MI-Sen: Senate Leadership Fund - anti-Elissa Slotkin (D); Slotkin and the DSCC

• MT-Sen: SLF - anti-Jon Tester (D-inc)

• NE-Sen-A: Dan Osborn (I)

• NM-Sen: Nella Domenici (R) - anti-Martin Heinrich (D-inc) (here and here)

• OH-Sen: Sherrod Brown (D-inc); Brown - anti-Bernie Moreno (R); SLF - anti- Brown

• PA-Sen: American Crossroads - anti-Bob Casey (D-inc)

• VA-Sen: Hung Cao (R) - anti-Tim Kaine (D-inc)

• WI-Sen: Eric Hovde (R) - anti-Tammy Baldwin (D-inc); SLF - anti-Baldwin; Baldwin - anti-Hovde

• NH-Gov: Kelly Ayotte (R) - anti-Joyce Craig (D); New Hampshire Democratic Party - anti-Ayotte

• AZ-01: House Majority PAC - pro-Amish Shah (D); David Schweikert (R-inc) - anti-Shah

• AZ-06: League of Conservation Voters - anti-Juan Ciscomani (R-inc)

• CA-27: HMP - pro-George Whitesides (D)

• CA-45: HMP - anti-Michelle Steel (R-inc); VoteVets - pro-Derek Tran (D)

• CA-47: Win It Back PAC (Club for Growth affiliate) - anti-Dave Min (D); HMP - pro-Min

• CT-05: George Logan (R) (in Spanish)

• IA-03: Zach Nunn (R-inc) - anti-Lanon Baccam (D); VoteVets - anti-Nunn

• ME-02: Jared Golden (D-inc) - anti-Austin Theriault (R)

• MI-07: HMP - anti-Tom Barrett (R)

• MI-08: NRCC - anti-Kristen McDonald Rivet (D)

• MI-10: Carl Marlinga (D)

• MT-01: Monica Tranel (D) - anti-Ryan Zinke (R)

• NC-01: HMP - anti-Laurie Buckhout (R); VoteVets - anti-Buckhout

• NE-02: Don Bacon (R-inc); Everytown for Gun Safety - anti-Bacon

• NH-01: Chris Pappas (D-inc) - anti-Russell Prescott (R)

• NH-02: Maggie Goodlander (D)

• NM-02: BOLD PAC (Congressional Hispanic Caucus affiliate) - anti-Yvette Herrell (R) ($200,000 buy); DCCC - anti-Herrell (in English and Spanish)

• NY-04: HMP - anti-Anthony D'Esposito (R-inc)

• NY-17: Mike Lawler (R-inc) - anti-Mondaire Jones (D); Lawler

• NY-18: Pat Ryan (D-inc) - anti-Alison Esposito (R); VoteVets - pro-Ryan; Everytown - anti-Esposito

• NY-19: HMP - anti-Marc Molinaro (R-inc) (here and here); Everytown - anti-Molinaro (here and here)

• OH-09: HMP - anti-Derek Merrin (R)

• OR-05: DCCC - anti-Lori Chavez-DeRemer (R-inc)

• PA-08: HMP - anti-Rob Bresnahan (R)

• PA-10: HMP - anti-Scott Perry (R-inc)

• VA-07: Derrick Anderson (R); LCV - anti-Anderson

• WI-03: HMP - anti-Derrick Van Orden (R-inc); VoteVets - anti-Van Orden

• FL Ballot: Yes on 4 - pro-abortion amendment (in English and Spanish)

• MO Ballot: Missourians for Constitutional Freedom - pro-abortion amendment (here and here)

• NE Ballot: Protect Our Rights - pro-abortion amendment

• Los Angeles County, CA District Attorney: Working Families, First Responders, and Small Businesses for a Safer LA County - anti-George Gascón (D-inc)

Correction: This piece incorrectly stated that Oklahoma Supreme Court justices run for retention in one of nine judicial districts rather than statewide. While they are selected to represent a judicial district, all voters statewide decide whether to retain them.