The pattern has become familiar – and a welcome pattern it is, even if brought about by the Republican-controlled General Assembly’s relentless abuses of our democratic system. Call it, “Judges to the rescue!”
Legislators have moved to make voting more difficult, to gerrymander election districts so as to insulate themselves from meaningful competition, and to inject conservative partisanship into North Carolina’s courts to protect their flanks. They’ve tried to gum up the oversight of elections to boost their party’s chances.
Even with lawsuits still ongoing and legislative chiefs hoping to prevail at the U.S. Supreme Court, judges’ rulings over the past couple of years have put Republican power-grabbers on the defensive. From the perspective of the North Carolina Council of Churches, this is what has to happen if our state is to turn away from the politics of selfish privilege and to reaffirm a commitment to constitutional principles of fairness and equal opportunity for all. Two recent cases in point:
1) Judicial primary elections – An unspoken goal of the legislative majority has been to revamp the way the state’s judges are chosen so as to make it less likely that challenges to laws’ constitutionality will be upheld. That has meant a return to partisan elections, in which conservative candidates bolstered by outside spending and not squeamish about law-and-order demagoguery have tended to do well. It has meant consideration of a system in which judges would be appointed, not elected, with legislators playing a key role in the appointments.
And it has meant a move to redraw the districts in which the state’s trial judges – those in the superior and district courts, who preside over all manner of criminal and civil cases from the deadly serious to the mundane – are elected. A joint House and Senate committee now is trying to craft a legislative package featuring such changes.
With new districts possibly in the offing, legislators used that as a rationale for canceling primary elections for judgeships that were scheduled for May. However, they also canceled primaries for seats on the N.C. Supreme Court and Court of Appeals – even though those posts are filled in statewide balloting without any districts.
Anyone who wanted to run was simply invited to pay a filing fee and sign up for the general election in November. Candidates even could change their party affiliation as they filed.
The prospect, of course, was for long, confusing ballots and judges elected with meager shares of the overall vote. That’s precisely what has happened when such elections were held in the past – damaging the courts’ credibility.
The Democratic Party filed a federal lawsuit objecting to what it argued was an unconstitutional attack on its right to select and field its preferred candidates. On Jan. 31, a balanced ruling from U.S. District Judge Catherine Eagles wisely put primary elections for the appellate judgeships back on track.
Eagles stipulated that with judicial redistricting still up in the air, it made sense to call off primaries for local judges who would be chosen in those districts. She agreed with GOP legislators that with filing deadlines fast approaching, potential candidates wouldn’t know which district they’d be running in for primaries held in May. The cancellations served a legitimate public purpose, she concluded.
Not so with the scrapping of primary elections for contested seats on the Supreme Court and Court of Appeals. The legislative defendants in fact offered no explanation for why they wanted to go that route, Eagles observed.
She went on to say, “The legislature has decided that judicial races should be partisan, but by giving candidates complete control over party designation, abolishing primaries of any kind, and failing to provide another mechanism for reducing the number of candidates on the general election ballot, the partisan political parties are restricted in their ability to support a particular candidate for these statewide offices and to disassociate at the general election stage from candidates who are not reflective of the parties’ goals in judicial elections.”
Come one, come all
The judge noted that when an election for a Court of Appeals seat was held in 2014 without a primary to narrow the field (the incumbent had resigned too late for a primary to be held), a whopping 19 candidates were listed on the ballot. The result, besides a winner favored by only 23 percent of the voters, was confusion and delay at the polls. Further, Eagles suggested that allowing candidates to choose a last-minute party designation raises the possibility that someone could run under what amounts to a false flag – a recipe for disruptive mischief.
All in all, the judge concluded that the Democratic plaintiffs were likely to prevail in arguing that their rights were being violated. So she issued an injunction blocking the new law from taking effect.
The stakes are significant. A seat on the Supreme Court (one of three now held by Republicans on the seven-person court) is expected to be contested, as are three seats on the 12-member Court of Appeals. Eagles’ ruling may help Democratic candidates, but what the Council of Churches appreciates is that it helps ensure a more orderly, credible judicial selection process pitting candidates who are well-qualified regardless of their party. Plainly and simply, that helps sustain the rule of law.
2) Elections oversight – The legislature has taken several steps to try to limit the powers of Democratic Gov. Roy Cooper, who defeated Republican Gov. Pat McCrory in November, 2016. A prime example involved the State Board of Elections. In a nutshell, the board (which also was made responsible for enforcing state government ethics rules) no longer would be controlled by members of the governor’s party who were accountable to him. Nor would county-level elections boards, contrary to long-standing practice.
Cooper sued, claiming that by encroaching on his oversight of the board the legislature was violating the doctrine of separation of powers and also interfering with his duty to ensure that laws are “faithfully executed.”
The board and its local counterparts in fact make important decisions about how election laws are carried out. Their rulings on polling place locations, for example, can either promote or hinder turnout among different voter groups. So if a governor is committed to fair, legal access to the polls for everyone, as Cooper is, then an elections board with a narrower view could inhibit that governor from seeing that the laws are executed as he or she believes they should be. That would be a blow to the voting rights that the Council of Churches sees as essential to a fair and well-functioning democracy.
Cooper’s lawsuit failed to make headway at the trial court level. But the state Supreme Court agreed with his arguments.
It’s symptomatic of today’s polarized politics that the Jan. 26 ruling, written by Justice Sam Ervin IV, was supported by the courts four Democrats and opposed by its Republicans. The majority didn’t question legislators’ authority to restructure the board. However, it found enough evidence that Cooper’s own authority was being hampered that it decided the law had to go.
This was a victory not only for Cooper and the Democrats, but also for citizens who expect their government to make sure their right to vote amounts to more than empty words. Perhaps if the legislature’s Republicans hadn’t been so clearly determined to deprive a Democratic governor of powers they’d been perfectly happy to grant his GOP predecessor, the four majority justices would have been more inclined to give them the benefit of the doubt.