Campaigns battle over fate of AZ Supreme Court justices who ushered in 1864 abortion ban

Judicial retention elections usually aren’t the sexiest items on the ballot, but this year two campaigns are fighting to persuade voters to either retain or throw out two Arizona Supreme Court justices.

At the same time, voters will be considering a constitutional amendment that would essentially give judges lifetime appointments.

Justices Clink Bolick and Kathryn King are up this year for a routine retention vote that the judges on the high court face every six years. And if voters in November favor Proposition 137, dubbed “The Judicial Accountability Act of 2024,” it could be their last retention election ever.

Voters have never kicked an Arizona Supreme Court justice off the bench in the 50 years since the state implemented judicial retention elections, but historically those elections didn’t get much attention and were questions that some voters just skipped.

But this year, after Bolick and King — both appointed by Republican Gov. Doug Ducey — voted in April to uphold a near-total abortion ban dating back to 1864, Progress Arizona mounted a campaign to convince voters not to retain them.

The progressive advocacy and lobbying organization has since joined focus with Planned Parenthood Advocates of Arizona to create a political action committee called “Protect Abortion Rights, No Retention Bolick and King.”

“This horrific decision (to reinstate the 1864 ban) followed decades of planning by abortion activists who advocated for the appointment of far-right judges, not just at the federal level, but also at the state level,” Morgan Finkelstein, a spokesperson for the PAC, said during a Sept. 10 press conference.

The Arizona Supreme Court was only able to reinstate the Civil War-era abortion ban after the U.S. Supreme Court in June 2022 struck down the constitutional right to abortion previously provided through the 1973 Roe v. Wade decision. The nation’s highest court nixed those protections in Dobbs v. Jackson Women’s Health Organization after former President Donald Trump appointed three conservative justices who voted to strike down Roe.

The Arizona Supreme Court’s subsequent decision to reinstate the 1864 ban — which lawmakers later repealed — was out of touch with what most voters want, Finkelstein said.

The PAC is also pushing voters to vote no on Proposition 137, a ballot measure sent to voters by the Republican-controlled state legislature that would end most judicial retention elections. The constitutional amendment would be retroactive, meaning that if voters decide not to retain Bolick and King, but the proposition passes, the justices will be retained anyway.

The proposition was sent to the ballot by anti-abortion politicians, in an effort to protect Bolick and King from being voted out, Finkelstein said. The proposal was introduced in the Senate months before the court’s abortion ban decision, but was fast-tracked for the ballot after it.

“The ability of voters to reject judges on our ballot is part of our Democratic process, to ensure the courts are balanced, current and in touch with the people,” Erika Mach, spokesperson for Planned Parenthood Advocates of Arizona, said during the Sept. 10 press conference. “Partisan, out-of-touch judges have no place in our private, medical decisions and must have no place in our courts.”

Another political action committee, created in June, called the “Judicial Independence Defense PAC” is working to counter the efforts of the campaign to oust Bolick and King.

Daniel Scarpinato, a spokesman for the effort to support Bolick and King, told the Arizona Mirror that the Judicial Independence PAC was created to educate the voters about the merit selection process for judges and to ensure they have the facts.

“Bolick and King have been very impartial justices that have served with integrity,” Scarpinato said. “This is something that’s kind of new and uncharted territory, at least in Arizona, to have this level of money and campaigning to remove justices.”

Scarpinato was a top aide for Ducey, who appointed both Bolick and King to the bench.

In a May 20 op-ed published in the Arizona Republic, Bolick bashed the campaign against him and King, writing that those behind it were “cynically harnessing anger over our recent abortion decision to replace us with justices who will rubber-stamp their ideological agenda.”

Bolick wrote that he was simply following the law when he cast his vote in the 4-2 decision to uphold the ban, and that it had nothing to do with his personal beliefs. He pointed out that his wife, state Sen. Shawnna Bolick, of Phoenix, was one of a few Republicans who voted alongside Democrats to repeal the ban. He also noted that he’s the only registered independent who has ever sat on the state Supreme Court.

Scarpinato dismissed the claims of the anti-retention retention campaign that Bolick and King are extreme and out of touch with what average Arizonans want as nothing but partisan political talking points.

The Arizona Commission on Judicial Performance Review, which conducts surveys of jurors, litigants and witnesses, gave both Bolick and King a favorable rating in their evaluations ahead of the election.

Both of the justices made their decisions based on the laws previously enacted by the state legislature, and the judges are there to interpret the law, not to make policy decisions, Scarpinato said.

“This is clearly an organized and very well-funded effort to remove the justices through the merit selection process, largely, I think, driven by out-of-state interests,” he said.

The largest donation to the Judicial Independence PAC, according to campaign finance reports, was $100,000 from its chairman, Randy Kendrick, a conservative political activist whose husband Ken Kendrick owns the Arizona Diamondbacks. Kendrick lives in Paradise Valley and is a board member for the Goldwater Institute, the Phoenix-based libertarian think tank where Bolick served as the top attorney before he was appointed to the Supreme Court.

But its next-largest publicly disclosed contribution came from Robson Walton, the billionaire son of Sam Walton, the founder of Walmart. Walton, who has reportedly given $25,000, lives in Bentonville, Arkansas.

So far, only donations to the PAC in June and July are publicly available, because of campaign finance report deadlines, but the rest of the donations were comparatively small, with most from Arizona, along with two donations from Illinois and California.

Because the “No Retention” PAC was just formed in August, its donor information won’t be publicly available until October.

“Our contributions thus far have only come from in-state donors seeking to educate voters about two extreme anti-abortion judges who imposed the heinous 1864 law that bans nearly all abortions, with no exceptions for rape, incest, or victims of human trafficking,” Finkelstein told the Mirror in an email.

With Bolick’s history as a lawyer for special interests, and King’s as a corporate attorney, Finkelstein said she was not surprised that the opposing political action committee “is funded almost entirely by billionaires.”

According to Forbes, Ken Kendrick’s net worth is $1.1 billion.

Arizona Mirror is part of States Newsroom, a nonprofit news network supported by grants and a coalition of donors as a 501c(3) public charity. Arizona Mirror maintains editorial independence. Contact Editor Jim Small for questions: info@azmirror.com. Follow Arizona Mirror on Facebook and X.