Courting money

North Carolina needs to keep partisan politics and special-interest money from ruining its judicial election reforms

North Carolina has pushed to get partisan politics and big money out of its judicial elections. Politics and money keep pushing back.

For a mild example, check out the state Supreme Court contest involving incumbent Justice Bob Edmunds Jr. and his challenger, law professor Suzanne Reynolds. It's the only seat up for grabs this fall on the seven-member court.

The candidates make no secret of their party affiliations, even though judicial races are officially nonpartisan. They campaign at events sponsored by their parties -- Edmunds is a Republican, Reynolds a Democrat -- and Edmunds was quoted as telling Watauga County Republicans, "I'm the one person standing between you and one-party government in North Carolina." The reference is to a 4-3 advantage Republicans hold on the Supreme Court -- the, ahem, nonpartisan Supreme Court.

Edmunds went on, "Every [GOP] incumbent on the appellate level is being challenged by a Democrat, and we can't pretend that this is not happening .... We're finding it very difficult to be bipartisan and nonpartisan when we're being challenged in a partisan way."

No doubt -- but three of the four incumbent Democrats running this year for the state Court of Appeals, which hears cases before they go to the Supreme Court, could say the same.

Both Edmunds and Reynolds campaign at nonpartisan events too. They pledge not to judge cases in a partisan way. That may be true, and surely nonpartisan races are a cut above party-line slugfests for seats on the state's highest court. It's just that after you take the party labels off the ballot, they're still sticky. And the U.S. Supreme Court has ruled that judicial candidates don't forfeit their right to free speech, even in states where some holds are barred.

Nonpartisan puzzles

North Carolina, with its nonpartisan judicial races and laudable public financing for appellate-level campaigns, has gone farther than most states. And, as a controversy from the last election cycle shows, it has learned how knotty this all can be.

Members of the State Board of Elections recently threw up their hands in frustration over a perfectly reasonable complaint from Bob Hall of Democracy North Carolina. It concerned Democratic Party involvement in the 2006 appellate court races.

To summarize a long story, a supposedly independent "527" organization called FairJudges.Net spent money promoting four candidates, three of them Democrats (remember, these races are nonpartisan). To help pay for its ads, FairJudges.Net solicited money from the state Democratic Party, which became its largest contributor. At the same time, one of FairJudges' directors, Scott Falmlen, was a paid employee of the Democrats' statewide campaign. Wasn't this improper coordination between the party and the ostensibly hands-off 527?

Might be, the Election Board figured, but the ad in question didn't "expressly" advocate a vote for the four judges. The candidates themselves weren't party to any coordination -- this was strictly between FairJudges and the Democrats. In wording and intent, the relevant rules are convoluted at best. And it was unclear if the rules were ever meant to apply to nonpartisan races. Judicial candidates, after all, are not nominees of any party. They're just party members whom the parties happen to like a lot (wink, wink).

Hurts to think about it

Susan K. Nichols, an elections specialist in the Attorney General's Office, informed the Board of Elections that the relevant statues are "headache-inducing." Reaching for the aspirin bottle, board members took no action. They still aren't sure if they should try to refine the board's rules or state laws.

Yet the situation Hall complained of remains troubling. If the state is going to run an election system for top judicial races (and now three Council of State posts) that offers public funding to candidates who abide by certain limits, how can it let "independent" groups freely circumvent them on the candidates' behalf? If judicial races are nonpartisan, how can the state let political parties inject money via such groups?

Vexing as it will be to balance sensible rulemaking with free speech rights, the effort should be made. Otherwise the 527s will run riot, nonpartisan races will take on even more political baggage and special-interest money will be able to taint the process.

Don't think it can happen? At the close of the Board of Elections' deliberations, board member Charles H. Winfree forecast that "it looks like the legislature wants the Wild West, and I'm afraid they're going to get it this fall when it comes to these elections."

Unless other people push back.