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Democrats expand majority on Illinois Supreme Court with wins by Rochford, O’Brien

Democratic candidates for the Illinois Supreme Court appeared to sweep their races in Tuesday’s elections, giving the party a 5-2 majority.

A spokesperson for Justice Michael Burke, a Republican who has served on the court since 2020, said Wednesday that the justice had conceded his race to his Democratic challenger, Appellate Court Justice Mary Kay O’Brien, who held a 1 percentage point lead with most of the vote counted.

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Illinois Supreme Court candidate Mary Kay O'Brien, whose Republican opponent has conceded the race, waves to a crowd while campaigning in Joliet in October.

Former Lake County Sheriff Mark Curran, a Republican, conceded to Lake County Judge Elizabeth Rochford in a Tuesday night phone call. Rochford held a 54% to 46% lead in the unofficial results Wednesday.

Chief Justice Mary Jane Theis, a Democrat who was on the ballot for a retention vote in Cook County, appeared to have secured far more than the 60% approval needed to keep her seat.

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Democrats held a 4-3 advantage on the court prior to Election Day, and the party cast the contested races as a referendum on abortion. Commercials by the candidates and their backers contended that electing Republicans would endanger that right in Illinois.

The Republicans, meanwhile, aimed to portray their opponents as products of the state’s Democratic machine who owed their careers to indicted former House Speaker Michael Madigan and other power brokers.

The campaigns were richly funded, with preliminary figures showing outside groups put more than $11 million into the races. Gov. J.B. Pritzker gave the maximum $500,000 to each Democratic candidate, and his personal trust fund kicked in another $500,000 apiece.

The opulent spending and sharply political tone of much of the advertising surrounding the races disturbed some observers, who said it threatens public confidence in a judiciary that is supposed to operate with independence.

Burke himself raised that concern in a statement congratulating O’Brien on her victory.

“It is my hope that Illinois’ judiciary acts with independence and impartiality,” he said. “In these politically polarized times, that is more important than ever.”

The races seemed fated to have a political edge once the Democratic majority, which has held sway over the court for more than 50 years, became endangered.

Business interests led by billionaire hedge fund manager Ken Griffin spent big in 2020 to defeat Democratic Justice Tom Kilbride, who was going for a third 10-year term. It was the first time a sitting judge had failed to win retention in the state’s history.

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Democrats responded by redrawing the state’s judicial districts in what was widely viewed as a partisan maneuver, concentrating two districts in the increasingly blue Chicago suburbs. Rochford and Curran contested the 2nd District, where most of the votes are in Lake and Kane counties, and O’Brien and Burke squared off in the 3rd District, where DuPage and Will counties are the heavyweights.

The 1st District is contained to Cook County and has three justices, all Democrats.

Democrats also tried to change the rules on judicial fundraising, passing a law to eliminate contributions from people who live out of state and from groups that do not disclose their donors.

The move was generally viewed as an attempt to throttle the money flowing to Republican candidates, but a judge ruled last month that the mandates could not be enforced, and it’s unclear whether they had much impact on the race.

Perhaps the biggest factor came in late June, when the U.S. Supreme Court overturned Roe v. Wade and made the legality of abortion a matter for states to decide. That became a centerpiece of the Democrats’ advertising campaigns, with commercials contending Burke and Curran wanted to make abortion illegal in all cases (the Republican candidates said that was untrue).

Jennifer Welch, president and CEO of Planned Parenthood Illinois Action, said that while no current case is making a beeline for the Illinois Supreme Court, groups that oppose abortion rights have filed numerous lawsuits hoping to constrain the use of the procedure. Republican justices might have been willing to favor those arguments, she said.

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“Whether the case is in the hopper or not, we have opposition that has always tried to use the judicial branch to overturn the will of the majority,” she said.

Now that Democrats are secure in the court, the legislature and the Governor’s Mansion, she said the time has come for more safeguards, including laws and regulations that would protect abortion providers who serve out-of-state clients from “long reach” legal attacks originating in states where the procedure is unlawful.

The groups backing the Republican nominees tried to tie their Democratic opponents to Madigan, now awaiting trial on federal racketeering charges. That tactic was used effectively against Kilbride, but with Madigan largely out of public view for the past year, some observers questioned the wisdom of employing it again.

“The shelf life of political scandals and political boogeymen, once they’re gone, fades pretty quickly,” said Kent Redfield, professor emeritus of political science at the University of Illinois at Springfield. “The public doesn’t have that kind of attention span, and it’s hard to gin up that kind of rage and discontent.”

The new justices will take their seats in December and start hearing cases in January. Speaking to the Tribune following her victory, O’Brien said one urgent piece of business will be to come up with procedures governing the Pretrial Fairness Act, the new state law that eliminates cash bail.

As for concerns about politics capturing the institution, she said running for the court is not the same as serving on it.

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“Once you’re serving, we take an oath to uphold the Constitution,” she said. “I take that very seriously, and I’m certain the other judges do as well. There are very few decisions that come before the court you look at and would think of in terms of political persuasion. That is something we can at least take some comfort in — those (hot-button) things are not routine.”

jkeilman@chicagotribune.com


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