Illinois Supreme Court majority in the balance as vote counting begins in two contested races

As polls closed Tuesday, Democrats and Republicans waited to see which party will get a majority on the Illinois Supreme Court following a vote portrayed as a referendum on abortion rights.

Two seats were contested in the election. In the 2nd District, Lake County Judge Elizabeth Rochford, a Democrat, was taking on former Lake County Sheriff Mark Curran. In the 3rd District, Supreme Court Justice Michael Burke, a Republican who has served on the court for two years, faced Appellate Court Justice Mary Kay O’Brien.

The Republicans will have to win both seats to overturn the Democrats’ 4-3 majority. For now, that includes Chief Justice Mary Jane Theis, a Democrat who was on the ballot for a retention vote in Cook County.

The stage for these momentous elections was set two years ago, when Justice Thomas Kilbride, a Democrat who was seeking a third 10-year term on the court, failed to win his retention vote, something that had never before happened in Illinois. It was the most expensive judicial retention campaign in history, according to the Brennan Center for Justice, with interests on both sides putting nearly $10 million into the race.

Kilbride’s defeat and the retirement of Justice Bob Thomas put two seats into play in this year’s election. Democrats, seeing the possibility of losing their majority, redrew the judicial electoral map for the first time in 57 years to concentrate two seats in the Chicago suburbs. Party officials say they were responding to population changes, an assertion viewed skeptically by some political observers.

The newly drawn 2nd District covers Lake, McHenry, Kane, DeKalb and Kendall counties. The 3rd District now covers DuPage, Will, Kankakee, Grundy, Iroquois, LaSalle and Bureau counties.

Democrats also passed a law banning judicial contributions from out of state or from groups that don’t disclose their donors, a move some interpreted as an attempt to restrain Republican fundraising. A federal judge ruled last month that the prohibition cannot be enforced.

That law also says a single person cannot contribute more than $500,000 to a judicial candidate. But late in the race, Gov. J.B. Pritzker, who had already donated the maximum to each Democratic candidate, used his personal trust fund to contribute another $500,000 each to Rochford and O’Brien; election officials said that tactic is permissible.

Pritzker’s campaign fund also contributed heavily to political action groups that supported the two Democratic judges, while groups funded primarily by billionaires Ken Griffin and Richard Uihlein spent millions to aid the Republicans in the race.

The races, sure to be hotly contested in any circumstance, grew supercharged in June after the U.S. Supreme Court overturned Roe v. Wade. States can now decide the legality of abortion within their borders, and the primary message of the Democratic candidates and their backers was that defeat would mean disaster.

“It all comes down to this seat,” said a commercial paid for by All for Justice, an independent expenditure group funded mainly by labor unions and trial lawyers. “It won’t matter who’s governor or who controls Springfield. The justice in this seat on the Illinois Supreme Court will decide if abortion remains legal in Illinois.”

Curran, who ran for U.S. Senate in 2020, was explicit about his anti-abortion beliefs in that race but told the Tribune in a recent interview he would not try to rewrite state law from the bench. Burke, who went to an Illinois Right to Life banquet earlier this year, cast his attendance at the event as a way to meet Republican voters and said he has not taken a public position on abortion.

The Republican candidates and their allies, meanwhile, aimed to paint O’Brien and Rochford as soft on crime and puppets of Democratic power brokers, particularly former House Speaker Michael Madigan, who faces federal racketeering charges.

“The Madigan machine’s last hope is electing O’Brien and Rochford to the Supreme Court,” said an ad from Citizens for Judicial Fairness, a group funded primarily by Griffin. “End Madigan’s corrupt gravy train — say no to Mary Kay O’Brien and Elizabeth Rochford.”

The Democrats called such allegations a lie; in one ad, O’Brien said Burke and his supporters were spreading it “to cover up their anti-woman agenda.”

Questions of experience also figured into the 2nd District race. Rochford has been a judge since 2012, and the Illinois State Bar Association rated her “highly recommended.”

Curran, who has been a prosecutor and private attorney aside from his two terms as sheriff, has never served on the bench. The bar association rated him “not recommended.”

Curran retorted in an interview that he had plenty of relevant legal experience. He further said that electing Rochford would ensure the court remains in Democratic hands, continuing Illinois’ tradition of one-party rule across all three branches of state government.

In the 3rd District, Burke cast himself as tough on crime, touting an endorsement from the Illinois Fraternal Order of Police, and underlined his own “highly recommended” rating.

O’Brien, who was “recommended” by the bar association, shook that off as a popularity contest, saying “it’s great if lawyers like you but it’s better if the litigants respect you,” and pointed to her own endorsements from law enforcement groups.

The extensive and frequently nasty advertising surrounding the races concerned University of Illinois at Urbana-Champaign law professor Michael LeRoy, who favors replacing judicial elections with merit appointments.

He said the flood of money and growing partisanship that have become central to the campaigns are damaging the public’s respect for the judiciary.

“When that happens, it’s a fundamental problem (because) courts issue rulings that are supposed to be followed as a matter of law,” he said. “It’s just one more pillar of our constitutional democracy that’s being shaken.”

Despite the negative messaging, all the candidates portrayed themselves in interviews with the Tribune as independent jurists who would not be swayed by politics.

The current court will hear the November docket, which includes cases dealing with the legality of Chicago’s car impoundment ordinance and a dispute over whether royalties from imprisoned pop star R. Kelly should go to his former landlord or to one of his alleged victims.

The victorious justices will assume their posts Dec. 5 and begin hearing cases in January.

jkeilman@chicagotribune.com