- This year’s North Carolina Supreme Court race is arguably the most impactful contest on the midterm ballot.
- The current state and national political climates highlight the significance of this election for the state’s highest court.
Over the past month, the eyes of the nation have been on Washington and the confirmation process of the newest United States Supreme Court Justice, Brett Kavanaugh. Tensions ran high amid sexual assault allegations, and many people felt frustrated that they did not have a voice in the Supreme Court confirmation process.
U.S. Supreme Court Justices are nominated by the President and confirmed by the Senate. Citizens play only an indirect role in the process because they elect those representatives.
But in North Carolina, citizens directly vote on their Supreme Court Justices.
This year’s North Carolina Supreme Court race is arguably the most impactful contest on the midterm ballot. It is the headlining statewide race and has important implications for the leanings of the state’s high court.
The state’s judicial branch has an obligation to be committed to objective interpretation of laws as designed in the state constitution. In today’s hyper-partisan climate, however, North Carolina’s judiciary could be the next ideological battleground.
History of Partisan Judicial Races
Up until 1996, all judicial races in North Carolina were partisan.1 In response to an uptick in Republican judicial victories, the then-Democrat-controlled General Assembly began changing judicial races to nonpartisan.2 By the 2004 election cycle, all judicial races were nonpartisan.
In 2015, the Republican-controlled General Assembly made the Court of Appeals races partisan. Following the 2016 election, the legislature also changed Supreme Court and District and Superior Court races to partisan elections. The 2018 election will be the first for which those changes go into effect.3
Despite the new partisan labels, the General Assembly cancelled all judicial primaries for the 2018 election due to judicial redistricting uncertainties that were not resolved by the time a primary would have needed to take place.4
Practically speaking, this means that the 2018 judicial races may contain any number of candidates, and the top vote-getter will be the winner.
2016 “Upset” Outcome
The 2018 Supreme Court race is especially important for conservatives in North Carolina because the Court currently has a 4-3 progressive slant. One left-leaning justice, Samuel Ervin, occasionally acts as a swing vote. Adding another Democrat or Progressive to the court would create a strong 5-2 majority, negating the possibility of a swing vote.
The court’s current dynamics are traceable to the 2016 Supreme Court race, when Democrat Mike Morgan upset incumbent Republican Bob Edmunds.5 Morgan won by eight points, a big win over a Republican incumbent. In other state-wide 2016 races, Republicans performed well. Donald Trump won the state, US Senator Richard Burr won his reelection bid, and the Republicans maintained their veto-proof majorities in both chambers of the General Assembly. Notable Democrat statewide wins included Gov. Roy Cooper and Attorney General Josh Stein.
Some speculate that Morgan won by such a large margin due to his name being listed first on the ballot. Other races on the ballot listed the candidates from the governor’s party first. Many people who voted for Republicans in other races may have assumed that Morgan was the Republican candidate since he was also listed first.6 However, the ballot order for that race was determined by a random drawing at the State Board of Elections. The race was non-partisan, meaning that at least some voters probably did not realize that Morgan was a Democrat. This was likely compounded by a phenomenon known as “position bias, ”7 which theorizes that candidates listed first on the ballot generally have a slight advantage over their competitors.
2018’s Three-Candidate Race
As previously mentioned, there were no primaries for the 2018 judicial elections. This opened the door for multiple candidates from the same party to be on the same ballot. This year’s Supreme Court race features three candidates: two registered Republicans and one registered Democrat.
Incumbent Republican Barbara Jackson is up for reelection and Democrat Anita Earls has been a known challenger for the seat. At the last minute, Chris Anglin entered the race as well. Anglin is running as a Republican, although he changed his voter registration from Democrat on June 7, less than three weeks before filing to run in the state Supreme Court race. Since some of his campaign or legal advisers are prominent Democrats,8 some believe Anglin entered the race as a Republican to siphon votes from Jackson and increase Earls’ chances of winning. Besides being the Democratic candidate, Earls is also the founder and former director of the Southern Coalition for Social Justice, a Leftist organization that uses the court system to advance its policy agenda. The group’s mission statement includes helping certain groups to “advance and defend their political, social, and economic rights through the combination of legal advocacy, research, organizing and communications.”
The Left’s strategy known as “Sue ‘til Blue” has upped the stakes of the State Supreme Court races in North Carolina. This means that the Left – including groups such as the North Carolina Association of Educators, the North Carolina NAACP, and now Governor Roy Cooper –use the court system to contest policies with which they disagree, regardless of the policy’s constitutionality. Progressives in North Carolina find themselves pursuing this route often because of their staunch opposition to many of the conservative policies put forth by the Republican-controlled General Assembly.
The most recent example of Sue ‘til Blue is the battle over the state’s proposed constitutional amendments. The courts ruled in favor of the original lawsuit brought forth by Governor Cooper against two of the amendments. After the General Assembly revised those two, the Governor sued again. It appears Cooper was not interested in addressing valid concerns, but just wanted to use the courts as a mechanism to keep the people of North Carolina from voting on amendments that he opposes. Similar lawsuits brought forth by the state NAACP chapter also included two additional amendments.9 Those cases were not successful.
To be clear, people and groups have the right to sue if they feel that their constitutional rights have been violated. This is unproblematic so long as the judiciary avoids judicial activism and attempts to make judgments solely based on the letter of the law and the constitution. But if the integrity of the court system in North Carolina is thrown into question, the Leftist establishment in the state has demonstrated its willingness to take full advantage of the opportunity.
Unfortunately, we have seen the willingness of some within the federal judicial system to “legislate from the bench,” a term used to describe a type of judicial activism in which judges make merit verdicts on laws based on their own personal beliefs or preferences. North Carolina has experienced this firsthand from the federal court system numerous times. Most recently, the U.S. Fourth Circuit Court of Appeals threw the state’s November elections into uncertainty with a gerrymandering ruling that some are calling a judicial political ‘coup.’
Should the State Supreme Court become a progressive stronghold, it will likely advance similar judicial activism in North Carolina. Along with a Democrat governor willing to litigate every issue, that could be a dangerous combination to North Carolina going forward. More broadly, judicial activism is a threat to self-governance. The legislative branch is designed to be sensitive to the will of the people, so that citizens have adequate influence on the lawmaking process of the state. No matter the ideological leanings of the judges, democracy is eroded when laws originate from judicial decree.
This article originally incorrectly stated that all judicial races were made nonpartisan in 1996 and that the Court of Appeals held 2018 primaries. It has been updated with the corrections.
- Christensen, Rob. “Pennsylvania judges face threat of impeachment. NC Republicans have been more subtle.” Raleigh News & Observer. March 16, 2018. https://www.newsobserver.com/news/politics-government/politics-columns-blogs/rob-christensen/article205503404.html
- Dunn, Andrew. “Everything you need to know about North Carolina’s judicial elections this year.” Long Leaf Politics. June 24, 2018. https://longleafpolitics.com/nc-judicial-elections-2018/
- Blythe, Anne. “We’re voting for judges this year, but are lawmakers done changing the rules for those elections?” Raleigh News & Observer. June 8, 2018. https://www.newsobserver.com/news/politics-government/article212835994.html
- Trump, John. “Ballot Placement may have aided Morgan’s Supreme Court win.” The Carolina Journal. November 10, 2016. https://www.carolinajournal.com/news-article/ballot-placement-may-have-aided-morgans-supreme-court-win/
- Morrill, Jim and Blythe, Anne. “Why one NCGOP official calls Republican Supreme Court candidate ‘the enemy.’” Raleigh News & Observer. July 4, 2018. https://www.newsobserver.com/news/politics-government/state-politics/article214261469.html
- Doran, Will. “Cooper, NAACP both lose their lawsuits against NC legislators over constitutional amendments.” Raleigh News & Observer. September 4, 2018. https://www.newsobserver.com/news/politics-government/article217792500.html