A race for the state Supreme Court is highlighting how changes in judicial elections may come back to bite the Democratic Party and the high court justice who once benefited from the changes.
If Justice Robin Hudson is unseated in this year’s elections, it might be because of the unintended consequences of nonpartisan elections and taxpayer funding of judicial campaigns – in addition to her own troubling ruling about the rights of child molesters.
To understand, let’s flash back to 2006, the first year those changes had a real effect.
Hudson was seeking a North Carolina Supreme Court seat against Anne Marie Calabria. At the time Calabria had more judicial experience than Hudson. In this supposedly non-partisan election, Hudson was the Democrat and Calabria was the Republican.
Less than two weeks before Election Day, however, a 527 group named fairjudges.net (in large part funded by the NC Democratic Party (NCDP) and headed by someone who had recently been the executive director of the NCDP), Democratic elected officials and unions spent over a quarter million dollars, including TV advertising, in support of four candidates for the NC Supreme Court. All four candidates won, including Hudson. She won by a margin of less than 21,000 votes out of almost 1.6 million cast after being helped by this and other independent efforts.
Today’s Democrats are quick to complain about “outside money,” but it seems obvious that outside funding helped push Hudson’s campaign over the top. And that isn’t all: It was Democrats who set up that scenario in the first place.
The roots of the problem go back to the late 1990s and early 2000s. In the halls of the General Assembly and in political backrooms, Democratic leaders were alarmed at the number of Republican lawyers winning judicial seats, even against better financed and better known Democratic incumbents and candidates. Removing partisan labels was an effort to remove the perceived advantage GOP judicial candidates had in those days. The real motive was cloaked under vague platitudes that decisions of the judiciary were not partisan and that attaching party labels to judicial candidates was somehow bad. In 2002 the shift to non-partisan elections was completed with statewide appellate judges (the Court of Appeals and Supreme Court) being included, with the measures taking effect in 2004.
In conjunction with the election change was the introduction of “voter owned elections” legislation covering the state’s two appellate courts. This legislation severely limited the amount of money a judicial candidate could raise from individuals, while giving candidates access to taxpayer money to finance campaigns. The idea’s proponents talked in generalities of the possibility of corruption but were unable to point to a single case in North Carolina where a judicial decision or judge, at any level, had been alleged to have been or charged with being influenced by campaign contributions. It was a solution in search of a problem.
While those changes have had no appreciable impact on making the judiciary more ethical or scandal free (they already were both of those) they did cause two unintended problems:
1. They effectively disenfranchised lots of voters by reducing the percentage of people voting in statewide (and lower) judicial races by between 25 and over 35 percent depending on the race and year, and …
2. They effectively gave outside groups more leverage in judicial elections by reducing the role of political parties, party primaries and individual contributions. These “reforms” opened the tap for candidates to access taxpayer money to oppose candidates with more popular support in the form of contributions, supporters or the ability to self-fund a campaign.
Today Hudson, the Democrat, is running for reelection and several independent expenditure (IE) groups are weighing in. An IE affiliated with the NC Chamber of Commerce is running ads supportive of Judge Eric Levinson (Republican) and Jeannette Doran (Republican). They are two of the candidates in the three-way primary for the two positions in on the November ballot. The non-partisan nature of the race means that voters in the primary have little information as to the possible philosophical/political leanings of the candidates running for this judicial office.
What would have normally occurred prior to the wholesale changes of the early 2000s would be a partisan primary followed by a general election in November. Instead now we have the real possibility of having the lone Democrat – Hudson – knocked out in the open, non-partisan primary, leaving the two Republicans –Doran and Levinson – as the only two candidates in the general election. This was not the outcome the Democratic leadership envisioned when they made the changes. This is what is known as the law of unintended consequences.
Another IE is “Justice for All NC,” which contributed to the “NC Judicial Coalition” which produced the famous banjo ad supporting Justice Paul Newby for reelection in 2012. This year Justice for All NC is questioning Hudson on a dissent she authored to a Supreme Court decision in 2010. She argued that sexual offenders were being deprived of their rights and subject to “ex post facto” punishment as a result of a 2006 NC law being implemented. She argued against both the legal rationale and the efficacy of satellite-based monitoring of adults who sexually assaulted children.
This is exactly the type of philosophical discussion that should be going on in our judicial elections. For the wide majority of North Carolinians, protecting children from sexual predators is a worthy goal. If it includes making convicted predators wear an ankle monitor and a transmitter, most voters will think: So be it. I would think that most judges and lawyers would prefer this inconvenience to having these folks get the death penalty, which is what a Civitas Poll showed 65 percent of NC voters thought was an appropriate punishment for “raping a child.” Most voters are interested in what kind of philosophy candidates for the highest court bring to this issue and others.
And this discussion also underscores the benefit of money in political campaigns. Because of political funding, issues get aired, voters get educated and turnout goes up. Indeed, that’s exactly what the original election changes tried to suppress: More people understanding the issues and where candidates stood on those issues – and ultimately more people casting an informed vote.
In 2006 Robin Hudson benefitted greatly from a last minute IE combined with recent changes in election law. This year she may find herself defeated in a primary as a result of those laws – and as a consequence of authoring a minority court dissent that was out of sync with the deeply held beliefs of mainstream NC voters.
Below are the videos of other candidates NC Supreme Court:
Jeanette Doran for NC Supreme Court Judge
Judge Eric Levinson for NC Supreme Court
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