One of the most consequential elections in North Carolina this year has received little attention so far: the lone seat on the N.C. Supreme Court that is up for a vote, held by Justice Paul M. Newby.
But the campaign pitting Newby against Democratic challenger Sam Ervin IV, a judge on the state Court of Appeals, should start drawing more attention as plans for a new super PAC begin ramping up fundraising on behalf of the incumbent.
Key conservatives have formed the N.C. Judicial Coalition, a tax-exempt group that can take advantage of the recent ability to raise and spend unlimited money to support or oppose candidates.
At stake is the 4-3 balance on the Supreme Court, which currently tips conservative. While all of the courts business is, by definition, important, half a dozen lawsuits have been filed over legislation passed in the Republican-dominated General Assembly last year that could end up before the seven justices, dealing with such contentious issues as redistricting, abortion and education funding.
The new super PAC officially known as an independent expenditure committee is comprised of Republican heavy-hitters. Wealthy businessman and charter school entrepreneur Bob Luddy is the committees chairman. Tom Fetzer, former chairman of the state Republican Party, and I. Beverly Lake, a former chief justice of the state Supreme Court, serve on its board of directors.
But also on the board is another former chief justice, Burley Mitchell Jr., a registered Democrat whose participation could help neutralize Newbys critics who portray him as a hard-right ideologue. The Supreme Court seats are technically nonpartisan, but voters tend to choose them along party lines when they vote for them at all the campaigns rarely generate widespread interest.
I happen to think that this election is one of the most important in the state this year, Fetzer said in an interview this week.
Fetzer, who now works as a lobbyist, said he saw the influence that an independent expenditure committee could wield when a nonprofit group called FairJudges.net, the first such entity in the state, endorsed several judicial candidates in 2006, spending about $200,000, which included funding from trial lawyers.
They had a real impact in that election, Fetzer said. Heading into this election, which is largely publicly financed, candidates have a limited ability to get their message out. I thought it was a good idea to set up an independent expenditure for Paul.
Whats new this time around is that while FairJudges.net could raise an unlimited amount of money from people, corporations and unions in excess of the $4,000 that can be contributed each election cycle it could not tell people to vote for specific candidates. Now entities like that can expressly advocate for candidates because of a Federal Elections Commission ruling in 2010 in the wake of two federal court cases. The super PACs cannot, however, coordinate with individual campaign committees.
No fundraising goal set
Fetzer said this super PAC wont be funded solely by Luddy, who made his fortune in heating and air conditioning and has started several private schools in the Triangle and has made political contributions. Fetzer said the committee has already received support from large and small donors across the state. He also said there isnt a firm goal in how much money they hope to collect.
Were going to raise as much as we can, have as big an impact as we can, Fetzer said.
Luddy wouldnt say how much money he might end up putting into the N.C. Judicial Coalition. His motivation, he said, is ideological.
Paul Newby is an outstanding judge, the type we need in North Carolina, Luddy said. We want do to everything possible to get him re-elected.
So far, Newby and Ervin are neck and neck in fundraising, having collected about $82,000 each. Both have also qualified for public financing amounting to an additional $240,100. Candidates qualify for public funding by raising a certain amount of money from at least 350 North Carolina voters giving $10 to $500 each.
Because of another recent court ruling, candidates can no longer receive rescue funds from the state to help make up gaps created when outside groups raise an overwhelming amount of money.
Ervins campaign manager, Mike Davis, said the amount of money the candidates have raised on their own is insufficient.
Its kind of ridiculous to run a statewide campaign on that little money, Davis said. But its what weve got. Weve done it before with Judge Ervin four years ago. Were looking forward to doing it again.
Mitchell, the former chief justice, said in an interview Friday that he has long pushed to do away with judicial elections in favor of appointments, and subsequent retention votes. He said he is uncomfortable with the idea of super PACs, but with limits on how much the candidates can raise there arent many options to help voters distinguish among candidates.
These guys have to have sufficient money to run and theyre not going to be able to raise it, he said. Those of us who are knowledgeable about the judges are going to have to find some way to communicate that, and this seems to be the only way left.
A very important race
Mitchell said he supports Newby as a matter of course.
Ive taken the position that no matter what the party, if an incumbent is doing a good job Im going to support him, and I think Paul is, he said.
Andrew Whalen, a political consultant who was the state Democratic Partys executive director, agrees this election is significant.
Its certainly a very important race in the effort to ensure a fair and impartial judiciary, especially since the radical agenda being pushed by the Republicans in the Legislature on a lot of issues have questionable constitutionality, Whalen said. Its important that as these issues continue to work their way through the justice system, fair judges are sitting on the bench.
Davis acknowledged Ervins election to the court would change its political balance, but he said thats not why hes running.
He has a history of being as balanced and fair as possible, Davis said. Unlike his opponent, the incumbent justice, who declares himself ideologically one way or the other. Judge Ervin has never done that.
Newby was a federal prosecutor for 20 years before he was elected to the state Court of Appeals in 2004. Firmly in the conservative camp he raised eyebrows in 2005 when he was spotted attending a rally for a constitutional amendment to ban same-sex marriage his swearing-in ceremony was attended by some of the leaders of the states Christian conservative political movement. During his campaign he stressed his conservative views, and advocated judicial restraint.
In 2010, Newby wrote for the court majority in voiding a state senators adoption of her former domestic partners biological child, closing an avenue for same-sex couples to adopt. The previous year, Newby also sided with the majority in ruling that the state medical board couldnt stop doctors from participating in prisoner executions, in which they monitor the procedure.
In another case, Newby again wrote for the majority of the court an opinion that said a Durham couple couldnt sue an out-of-state company accused of predatory lending, a 4-3 ruling that upset consumer-protection advocates.
Newby has been given a prominent speaking role in this weekends state Republican Party convention in Greensboro.
Ervin is a candidate with name recognition: He is the grandson of storied U.S. Senate Watergate Committee chairman Sam Ervin. His father was federal judge. He was in private practice, often representing companies fighting electric rate increases before the state Utilities Commisison, before being appointed to the commission by Gov. Jim Hunt. He later returned to private practice until he was elected to the appellate court in 2008.
Ervin was one of three appellate court judges who in 2011 rejected a request to reinstate a lawsuit accusing the Wake County school board of violating the states open meeting laws when it discussed eliminating the use of diversity in student assignments. In 2010, he wrote an opinion for a three-judge appellate panel finding that the N.C. Institute for Constitutional Law did not have standing to sue over $250 million in tax breaks and other perks for Google.