This year’s judicial elections have reminded me of a story that former Wake County District Court Judge James Fullwood likes to tell about his re-election campaign in 1994, a year where Republicans won basically everything there was to win. Judicial elections were partisan races back then, and Fullwood, a Democrat, was exceptionally fortunate that he ran unopposed that year.
At the time, Fullwood had a dog named Stray, an abandoned mutt that his family rescued from the side of the road. Fullwood says that if Stray had been running against him on the Republican ticket that year, “he’d have been Judge Stray.”
I think about the story because once again, North Carolina has returned to partisan judicial elections after a long period of nonpartisan judicial elections. And, that, frankly, has been a disservice to the state and to its judiciary, as this year’s campaign for a seat on the state’s Supreme Court has made clear.
When legislators changed Supreme Court elections from nonpartisan to partisan contests, and then abruptly cancelled partisan primaries for appellate court races, it was a transparent attempt to stack the deck in favor of Republican candidates. After a previous attempt to replace Supreme Court elections with retention elections also did not go as legislators had hoped, the shift to partisan elections appears to have backfired in two ways.
Traditionally, midterm elections tend to be a tough slog for the party that controls the White House. Every time there’s a wave election, good public servants unfortunately get washed out with the partisan tide. Had the 2016 presidential election gone differently, Republicans statewide would likely be cruising to election victories. Instead, the only public poll of the Supreme Court race gives the Democratic candidate, Anita Earls, a double-digit lead.
Eventually, the shoe will be on the other foot, of course, but the idea that the results of a presidential election are likely to substantially influence which judges sit on North Carolina’s courts is troubling.
Second, the choice to cancel primaries opened the door to electoral chicanery. Up until the final day of filing, Earls was the only candidate challenging the incumbent Republican, Barbara Jackson. But in an entirely unexpected twist, Chris Anglin, a Republican who was until recently a Democrat, joined the race just before the deadline, splitting the vote in a way legislators apparently did not anticipate. (Keeping with form, lawmakers unsuccessfully tried to change the ground rules for the election after the filing period ended.)
Anglin’s claims to be a principled “constitutional conservative” are unconvincing, but it hardly matters either way—although he makes an entirely valid point about how legislators have made a hash of this election, he’s not remotely qualified for a seat on the Supreme Court given his lack of relevant experience.
The good news, such as it is, is that for this election at least, things will be fine. The two leading candidates for the Supreme Court seat, Jackson and Earls, are both brilliant attorneys and eminently qualified to sit on North Carolina’s highest court. While they have different legal perspectives in some ways, either one would be a fine choice.
But they, no less than the voters, deserve the fair contest that they would have gotten had legislators not fiddled with rules. And there’s no reason to assume that the electorate will always be so fortunate in the future—the story about Judge Stray is funny until you realize that it wasn’t very much of an exaggeration.
Perhaps the most frustrating aspect of all is that legislators stand to gain less than they apparently expect through all these changes to the laws. As Lawyers Weekly has written about repeatedly, the large majority of state Supreme Court decisions are unanimous. A 4-3 decision is very rare, and 4-3 decisions that split along partisan lines are rarer still. And most cases that come before the court have no particular partisan implications anyway.
Under the North Carolina Constitution judges are elected, and that is unlikely to ever change. But the best way, by far, to hold those elections would be to have nonpartisan, publicly financed elections with a top-two primary—exactly the rules that were in place before legislators began tinkering with the rules in ways that appear calculated to extract partisan advantage. North Carolina should return to nonpartisan, publicly financed judicial elections, and leave them that way for good.
Don’t forget the amendments
And, finally, on the topic of constitutional amendments, the legislature has proposed six this year, of which one would directly affect the judiciary. In a blatantly partisan power grab, the amendment would strip the governor of the power to fill judicial vacancies, and create a convoluted system in which the real power would rest with the legislature.
No state in the country uses a system like the one proposed. It is poorly thought out, and the supporting legislation needed to implement it hasn’t even been written. It would lead to judicial positions remaining vacant for months. And no one has identified any problems with the existing system except that the current legislature does not like the current governor and would prefer he have less power. (Again, the idea that the shoe could be on the other foot someday seems to have been forgotten.) There is no good reason to approve it.
For those reasons, Lawyers Weekly encourages everyone voting this year to vote “Against” on the judicial vacancy constitutional amendment.
Follow David Donovan on Twitter @NCLWDonovan