As people pore over election results, trying to make sense of a year that has baffled many, some in North Carolina are trying to decipher the reasons for Wake County Superior Court Judge Mike Morgan’s resounding victory over Justice Bob Edmunds for the only open seat on the state Supreme Court.
The victory for Morgan, a Democrat, over Edmunds, a Republican, means the ideological balance of the state’s highest court swings back to favor the Democrats, who will hold four of the seven seats.
Morgan won by more than nine percentage points even though Republicans won the state’s votes for president, Senate, five state Court of Appeals seats and six other statewide races. Democrats lead narrowly in three more contests, including for governor, but Morgan and Secretary of State Elaine Marshall were the only Democrats with decisive statewide wins.
North Carolina has been described on an election-results graphic produced by The New York Times as one of “swingiest of the swing states” in the 2016 elections, leaving a mix of party results from the top of the ballot to the local races.
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Whether down-ballot Republicans benefited from Donald Trump’s coattails and his new voters remains a question. Some wonder whether the Supreme Court results might have been different had party affiliation been on the ballot, as it was for the state Court of Appeals races.
Others said voters could have been persuaded by the campaign messages.
Morgan touted himself as a judge who would be “fair and impartial” at a time when many have raised concerns about politics infecting the courts. Edmunds campaigned on the record he built over his 16 years on the high bench and in campaign literature described himself as a “conservative” judge. Some wondered, too, whether the attempt to create retention elections hurt Edmunds’ chances for re-election.
“This is a very curious election for North Carolina,” said Susan Roberts, a Davidson College political science professor who is a native North Carolinian who teaches courses on the presidency, Congress, political parties, campaigns and interest groups. “That one race did stick out.”
The race between Morgan, 60, and Edmunds, 67, this year would not have come about had it not been for Sabra Faires, a Raleigh attorney who successfully challenged a 2015 law that would have changed how sitting justices stood for re-election. A Superior Court judge panel found the law, which would have shielded sitting justices from opposition on the ballot unless they lost a “retention election,” to be a violation of the state Constitution. Because the Supreme Court split 3-3 on the question, with Edmunds abstaining, the lower court ruling forced a competitive race.
This week, Faires and others in her law office tried to figure out what message voters were sending after electing Republicans to all five open seats on the 15-member Court of Appeals, but going overwhelmingly for the Democrat in the Supreme Court election.
“I feel that I did the right thing in bringing the lawsuit,” said Faires, who was eliminated as a candidate in the June primary that winnowed a field of four candidates seeking the seat to the top two vote-getters. “The importance was amplified by people choosing someone other than the incumbent. ...We have a hope of having a check and balance that we didn’t have before.”
“I congratulate Judge Morgan and wish him the best,” Edmunds said in an email after the election.
“We’re going forward in the cause of justice for North Carolina,” Morgan told a crowd of supporters at a Democratic rally on Tuesday night at the Marriott hotel in downtown Raleigh.
But with Republicans holding a majority in both General Assembly chambers and the governor’s office through at least the remainder of the year, questions have been circulating about the possibility of a special legislative session in which Republicans could put forward a plan to expand the Supreme Court to nine members. Such a move could shift the ideological balance back to their party.
The North Carolina Constitution states that the Supreme Court shall consist of a chief justice and six associate justices, but the General Assembly may increase the number of associate justices to eight. If two seats were added, the governor would appoint the justices who fill the seats until the next election. To remain in the seats, those justices then would have to stand for election, and that would not be until 2018.
Mitch Kokai, director of communications for the conservative-leaning John Locke Foundation and a senior policy analyst, wrote about the possibility of increasing the bench to nine members in a post that went up Thursday afternoon on The Carolina Journal website.
“Observers have asked whether the N.C. General Assembly could expand the number of justices to blunt the election’s impact,” Kokai wrote in the post. “The answer is yes.”
Rep. David Lewis, chairman of the House Rules Committee, said Thursday that he had heard no talk of adding two justices. He said there are “folks talking about all kinds of crazy stuff.”
“We have not talked about anything of that nature.”
Republicans have talked for several years about making all judicial races partisan. This year they amended the law to add partisan affiliation on the state Court of Appeals ballot.
“That’s what people have talked about as far as changes to the court,” Lewis said.
Lewis said he saw no need to move on the question of whether to add partisan affiliation to all judicial races if the legislators, indeed, go into a special session in early December as Gov. Pat McCrory requested before the elections to address Hurricane Matthew’s aftermath. What would be on that agenda, though, has not been settled.
Asked Thursday, Senate leader Phil Berger’s spokeswoman said Berger’s office doesn’t make a habit of responding to rumors.