Coronavirus powers ruling puts spotlight on Michigan Supreme Court election

A razor-thin Michigan Supreme Court decision that appears to doom Gov. Gretchen Whitmer’s ability to unilaterally issue COVID-19 emergency orders brings upcoming elections for the high court into the spotlight.

Friday’s 4-3 decision declared unconstitutional a 1945 law used by the governor to repeatedly extend her emergency powers, including mask requirements and crowd restrictions. All four justices in the majority were nominated by the Republican Party; the three justices in dissent were nominated by the Democratic Party.

On Nov. 3, two Supreme Court seats will go before statewide voters, with the court’s ideological leanings in the balance. One of those openings will fill the seat of conservative Stephen Markman, who penned the majority decision Friday and who is barred from running again because of his age.  

Related: Michigan Supreme Court rules Whitmer lacks COVID-19 emergency powers

How does the Michigan Supreme court work?

There are seven justices on the state Supreme Court. Each justice is either elected to the court or appointed by the governor when a vacancy opens. An appointed justice must win election in the next general election to keep their spot. Elected justices are given eight-year terms before they must run for re-election. There is a mandatory retirement age of 70.

While Supreme Court elections are considered nonpartisan, major political parties still nominate judges to the ballot. Party affiliations are not listed on the ballot, though their incumbent status is, making it more difficult to oust a sitting justice.

The current court has a 4-3 conservative lean, though Republican-nominated justices have at times voted with their more liberal colleagues on partisan issues. 

Bridget Mary McCormack is currently chief justice, a position elected by members of the court every two years. Her seat is one of the two up for re-election.    

Markman, who has served on the court since 1999, will see his term end at year’s end. 

Who is on the ballot for the two seats?

Seven Supreme Court candidates will appear on the Nov. 3 ballot. Two will be elected to the state Supreme Court, one for each term that is ending.

McCormack and Elizabeth Welch were nominated at the state Democratic convention in late August. If McCormack maintains her seat, and Welch, a former East Grand Rapids Board of Education member, is elected, liberals on the court will hold a 4-3 majority.

Whitmer appeared on CNN Sunday, and urged voters to vote “McCormack and Welch because we’ve got to have justices that do the right thing and follow the rule of law.”

Michigan Republicans nominated two justices to the ballot as well: Mary Kelly, a former St. Clair County prosecutor, and Brock Swartzle, who is on the Michigan Court of Appeals. If both are elected, they would help secure a 5-2 conservative advantage.

On Monday, Laura Cox, state party chair of the Michigan Republican Party, sent an email to supporters urging them to vote for Kelly and Swartzle, saying the ruling against Whitmer's "unconstitutional power grab" is a reminder that the GOP needs to turn out to keep a conservative majority on the court.

The Libertarian Party also has two nominees on the ballot: Kerry Lee Morgan and Katie Nepton. The latter would be the first ever Indigenous person to serve on the Michigan Supreme Court should she win in November. 

There is also a Green Party nominee in former Wayne County Commissioner Susan Hubbard.

What do we know about the candidates: 

Here is a brief summary of their backgrounds, with more information available on their websites, where they are available. 

Bridget Mary McCormack (Democratic nominated)

McCormack has served as chief justice since 2018, after being elected to the court in 2012. McCormack is the lone incumbent on the ballot. 

“McCormack believes the courtroom is one place where fairness should outrank strength, and where being right should matter more than being popular or powerful,” her campaign website states.

She came to the bench from the University of Michigan law school, where she helped to legal launch clinics to help domestic violence victims and exonerate the wrongfully convicted. She is devoted to “delivering on a promise that courts are independent, accessible, engaged with their communities and efficient,” per her official Michigan Supreme Court page. 

Elizabeth Welch (Democratic nominated) 

Welch “is an attorney, dedicated public servant and a fighter for justice,” according to her campaign website. She has previous experience as an attorney working with nonprofits and small businesses, while also being a trustee of the East Grand Rapids school board member She is former president of the Michigan League of Conservation Voters. 

Mary Kelly (Republican nominated) 

Kelly is a prosecutor who has “has dedicated her entire career to protecting families and children,” according to her campaign website. She has spent over 30 years as a prosecutor for St. Clair County, and also worked for private practices in the past. 

She was the lead attorney of the St. Clair County Criminal Sexual Conduct Unit and calls herself “a steadfast champion of the rights of victims.” 

Brock Swartzle (Republican nominated) 

Swartzle is a judge on Michigan’s 4th District Court of Appeals, and is an adjunct professor at Michigan State University. His website describes him as “a proven rule-of-law conservative”. As evidence of his conservative bona fides, he links on his website to rulings he said convey his judicial philosophy. 

He also describes himself as “a judge who does his level best, each and every day, to achieve practical justice in every single case, but a judge who also understands that perfect justice is our North Star rather than our regular port.”

Kerry Lee Morgan (Libertarian nominated)

Morgan is Of Counsel to Pentiuk, Couvreur & Kobiljak, a Michigan-based law firm that works in business law and commercial real estate matters. His areas of practice include “municipal law, employment discrimination, civil rights, labor law litigation, environmental law, educational policy and federal firearms law.”

“His background is uniquely suited to bring your freedoms back to life,” he writes, according to the candidate’s bio page on PoliticalBank.

Katie Nepton (Libertarian nominated)

Nepton is an attorney at the Nepton Law Firm, per her LinkedIn page, which is “focused on Estate Planning, Medicaid Planning, Social Security, Trusts, Wills, Powers of Attorney, and ensuring the very best is done for your family and your future.”

“I became an attorney so that I could help people better their future and resolve problems and issues quickly and respectfully,” her bio on her law firm’s website states.

Susan Hubbard (Green Party nominated)

Hubbard is a former Wayne County commissioner who serves on the Wayne County Circuit Court. Her website states that she is running for Supreme Court to “protect the people of our state by supporting our Constitution,” also mentioning her support of the decision made by the Michigan Supreme Court on Friday striking down the law Whitmer used to justify her extended emergency powers.

As county commissioner, she said she helped regulate noise pollution and water pollution in the Dearborn area.