RALEIGH Republicans with a firm grip on the North Carolina legislature – and, until January, the governor’s seat – enacted a conservative agenda in recent years, only to have a steady stream of laws affecting voting and legislative power rejected by federal and state courts.
Now lawmakers have seized on a solution: change the makeup of the courts they can control.
Judges in state courts as of this year must identify their party affiliation on ballots, making North Carolina the first state in nearly a century to adopt partisan court elections. The General Assembly in Raleigh reduced the size of the state Court of Appeals, depriving Gov. Roy Cooper, a Democrat, of naming replacements for retiring Republicans.
And this month, lawmakers drew new boundaries for judicial districts statewide, which critics say are meant to increase the number of Republican judges on district and superior courts and would force many African-Americans on the bench into runoffs against other incumbents.
“Instead of changing the way they write their laws, they want to change the judges,” Cooper said as he sat in a 19th-century, high-ceiling library at the Executive Mansion, which he has occupied uneasily since succeeding Pat McCrory, a Republican. The legislature has overridden nearly a dozen of his vetoes. The latest was on Monday, when lawmakers sustained a bill to eliminate judicial primary elections, which Cooper called part of an effort to “rig the system.”
Republicans say their goal is to correct yearslong imbalances from shifts in population, ignored while Democrats held power, and to give voters more information about little-known judges in down-ballot races. “This is about making good policy,” Rep. Justin Burr, who unveiled the proposed new judicial maps in a series of Twitter messages one Sunday in June, has said.
North Carolina’s evolution comes in the context of longstanding but increasing politicization of federal courts. Sen. Mitch McConnell, the majority leader, blocked President Barack Obama’s appointment of Merrick B. Garland to the Supreme Court for 10 months until Obama’s term expired. In the end, President Donald Trump appointed Neil M. Gorsuch to the court instead. On Monday, appearing at the White House with Trump, McConnell said he favors ending the tradition of giving senators a veto – known as a “blue slip” – over judges for appellate courts in their home states.
The politicization has trickled down to state courts. Nearly $20 million was spent by outside groups on TV ads in state Supreme Court races last year, often attacking justices’ decisions, according to the Brennan Center for Justice. In North Carolina, $2.8 million in ads flooded a Supreme Court race in which a Democrat unseated a Republican incumbent, shifting the court’s ideological balance. Republican lawmakers shortly after required Supreme Court candidates – who had run without party labels – to appear on a partisan ballot. They later extended the requirement to lower courts.
“We’re the first state since 1921 moving toward partisan elections for judges,” said Rep. Marcia Morey, a Democrat who was a district court judge before entering the legislature. “I feel like we’re taking off the black robes and we’re putting on red and blue robes, and does that really serve the interests of justice?”
Since Republicans ended more than a century of Democratic rule in 2010 by capturing both houses of the General Assembly, they have justified their sometimes hardball tactics as being no different from Democrats’ ways in the past. After Cooper’s narrow victory, the General Assembly rammed through laws to strip him of crucial powers.
But longtime observers of North Carolina government say Republicans’ actions are without recent precedent. And court rulings seem to affirm their point. The U.S. Supreme Court said this year the legislature created illegal racial gerrymanders in drawing election maps in 2011. The Supreme Court also sustained a lower-court ruling that North Carolina’s 2013 voter ID law was unconstitutional and discriminated against blacks “with almost surgical precision.”
“Anybody who has been around for a while will tell you what’s happened in the last few years is on an entirely different level than anything done before,” said Michael Crowell, a former associate director of the Institute of Government at the University of North Carolina, who is unaffiliated with a party. “The common feature here is that so much of it seems to be designed to manipulate the election process.”
Cooper has been in hand-to-hand combat with the legislature all year. State courts have blocked some of the laws Republicans passed to take away his powers.
The state Senate’s powerful leader, Phil Berger, a frequent nemesis of the governor’s, said in a statement that the smaller appeals court would be more efficient and thwart the governor’s “partisan court-packing scheme.”
“This legislature doesn’t like the courts, doesn’t like the judges on the court,” said Crowell, who headed a commission on improving the courts in the 1990s. “It wants to change who they are, and they don’t seem to care how they go about it.”
Maps for new districts for the state courts were approved by the state House on a party-line vote this month. During debate, Democrats said 65 percent of African-American judges would be “double-bunked,” or placed in districts facing another incumbent, which would reduce judicial diversity.
In counties with big cities, where most North Carolina Democrats live, the new districts pack urban voters together while carving out separate suburban and rural districts favorable to Republicans.
Buncombe County, which includes Asheville, is an example. Judge Calvin Hill, the chief district court judge there and a Democrat, was placed in a new district composed of mostly rural Republican-leaning voters. Hill is the only African-American on the district court bench in Buncombe County, whose black voters are mostly in Asheville.
“Not only does it put me in a Republican district, it disenfranchises the large part of the African-Americans who would be a voting bloc for me,” Hill said. “If you look at the lines in Buncombe County as it relates to me as an African-American, there’s no question the race issue has come into play.”
North Carolina’s Senate is not expected to take up redistricting until January. Berger has signaled he favors a different system – ending judicial elections altogether and giving the General Assembly the power to appoint judges.
The new system, which Republicans call “merit selection,” would require an amendment to the state Constitution approved by voters.
“I believe what they’re setting up is a vote on this constitutional amendment in May,” Cooper said. “It’s not merit selection; it’s partisan selection. It’s injecting even more politics in the process.”
A spokeswoman for Berger pointed out that Cooper, as a state senator 22 years ago, had voted in favor of an appointment system for judges – at a time when Democrats controlled the Senate and the Executive Mansion.
Cooper said judicial selection has become much more partisan than it was two decades ago. Rep. Darren Jackson, the Democratic leader in the House, said that reflects changes in the legislature over the past decade as well.
“We used to start every session with a lot of nonpartisan bills that would pass 115-to-3,” he said. “Then you’d get into the budget, and it was partisan. Now we start that way on Day 1.”
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