Opponents of judicial elections are at it again. This time they are claiming that the integrity and independence of the North Carolina judiciary are at stake if the General Assembly does away with public financing of judicial elections. Absent public financing, so the argument goes, judges will be beholden to special interests that support their candidacies. Justice will be for sale, undermining the legitimacy of our courts.
Given that many of those decrying the loss of public financing oppose all judicial elections, North Carolinians should look beyond the rhetoric and consider the available empirical data and current legal landscape when deciding whether public financing should be preserved. Three points are particularly important to keep in mind.
• First, 38 states currently use some form of judicial elections in the initial selection or retention of judges. North Carolina and 21 other states use contested elections, pursuant to which judicial candidates must run against each other in a traditional campaign. Only four States – North Carolina, New Mexico, West Virginia and Wisconsin – have adopted public financing.
Democracy has not collapsed in the states that elect their judges without a public financing system. Nor is there any evidence that North Carolina’s judiciary lacked independence or integrity from 1868, when North Carolina started electing its judges, until the current public financing system was implemented in 2002. If a judge or justice ever abuses authority by favoring special interests, judicial elections empower us – the residents of North Carolina – to vote the judge out of office. Contrary to the opponents’ claims, this check on the judiciary reinforces accountability and legitimacy.
• Second, in the wake of the U.S. Supreme Court’s decision in Citizens United, public financing cannot provide any meaningful limit on third-party spending in state judicial elections. Citizens United held (for better or worse) that the First Amendment protects the right of corporations, unions and other groups to make independent expenditures in elections, judicial or otherwise. So corporations and super-PACs can spend extravagantly in judicial races regardless of whether the candidates have opted in or out of the public financing system.
Given Citizens United and the relatively small amount of public moneys allocated for judicial elections, North Carolina is apt to see a continued rise in third-party spending in races for our highest court – even if public funding is retained.
In 2012, Justice Paul Newby and Judge Sam Ervin opted into the public financing system, which gave each of them roughly $320,000 to reach the six million North Carolina voters who live in 100 counties. Stated differently, each candidate could spend just over 5 cents per voter to deliver his desired message. That amount was insufficient to run an effective campaign in the 10th-most-populated state.
• Third, contrary to the rhetoric of those who oppose judicial elections, the available empirical evidence indicates that judicial elections actually increase the legitimacy of the courts. In his new book, “Electing Judges: The Surprising Effects of Campaigning on Judicial Legitimacy,” James Gibson, the Sidney W. Souers Professor of Government at Washington University in St. Louis, concludes that, “even with the effects of undesirable campaign activity, the net effect of judicial elections is positive” because “the simple truth is that elections themselves build legitimacy in a democracy, for courts, as for other political institutions as well.”
North Carolinians should continue to consider ways to improve our judicial selection system. Bringing back partisan elections – which, according to the available data, reduces the costs of elections and increases voter participation – would be a positive step. History informs us, though, that the legitimacy of the North Carolina courts does not depend on public financing. It depends on the integrity of our judges and the participation of North Carolinians in the selection process.
Scott Gaylord is a law professor at Elon University School of Law.