Race for chief justice shows the flaws in electing judges
Nearly a month after the polls closed, election officials are still trying to figure out the winner in the state Supreme Court contest for chief justice. Nearly 5.4 million votes were cast and each candidate – Chief Justice Cheri Beasley, a Democrat, and Associate Justice Paul Newby, a Republican – won 50 percent, though Newby leads in the recount by about 400 votes.
Regardless of who wins, the image of the state Supreme Court already has been hurt. The next chief justice will be presiding less on the basis of his or her record and ability and more on what a few hundred voters decided in a race in which most voters likely knew little about the candidates.
This isn’t democracy holding judicial candidates to account. It’s electoral roulette. The Supreme Court – and all North Carolina courts – deserve better. Judges should be chosen in a deliberative manner by people who know the law and know the background and qualifications of those who would rule on it. Instead North Carolina is one of the few states that chooses all of its judges through partisan elections, which leaves them prone to being perceived as political judges.
When Democrats controlled the General Assembly, North Carolina removed party labels from district, superior and appellate court races through legislation passed between 1996 and 2001. But since Republicans took control after the 2010 election, partisan labels have been added back. Also, public campaign funding for appellate candidates that had been approved in 2004 was eliminated in 2013, forcing those candidates to seek campaign funds from private sources.
“It’s kind of like the worst of the worst,” said Bob Phillips, executive director of Common Cause of North Carolina. “The partisan labels are back and the races are turning into big-money partisan contests.”
The addition of partisan labels paid off for Republicans this year. President Trump carried North Carolina and brought a wave of his backers to the polls. Republican judicial candidates did well, winning all five available Court of Appeals races and two Supreme Court races, with the race for chief justice still in the balance.
That result, of course, was the point of restoring partisan labels. In an election like this year’s, with an incumbent Republican president stressing law and order, conditions were good for Republican judges, who are perceived as tougher on crime.
But the strongest political impact of partisan elections will come in 2022. Associate Justice Sam Ervin, a Democrat, will be up for re-election and Associate Justice Robin Hudson, a Democrat who is nearing mandatory retirement age, will likely not seek re-election, creating an open seat. Assuming Newby holds on to win and brings the court’s partisan balance to 4-3 Democratic, the court’s majority will be at stake. Both parties will fight furiously for the two seats. Dark money will flood in.
The prize will be control of the court that will likely rule on challenges to the legislative and congressional redistricting maps Republican state lawmakers will draw next year. Since the U.S. Supreme Court has said ruling on partisan gerrymandering is a task for state courts, a North Carolina Supreme Court ruling could be the final word on maps designed to favor Republicans.
Judges across the system should be ruling dispassionately on the law and not assessing cases with an eye toward the election and who might contribute to their campaign. And it certainly would be better if they decided on challenges to redistricting maps by considering the interests of voters, not parties.
Getting politics out of the courtrooms would require a change in the state constitution, which requires that judges be elected. Voters tend not to want to give up that power, but they also don’t like to see judges raising campaign funds and they don’t like gerrymandering.
The situation won’t change under the legislature that has made it so much worse, but the change toward the appointment of judges should be a priority if Democrats regain control of the legislature.