Voting districts. Ballot labels. State appointments. Even the Constitution.
Never in memory has North Carolina seen as many court battles over such consequential issues as it has in recent weeks. Nor have courts had such broad say over an election, or injected as much uncertainty for voters.
“It is unprecedented and a reflection of the unprecedented political times that we see, not only in North Carolina but in the nation,” said Republican Bob Orr, a retired state Supreme Court justice.
In just one day this week, one court decided to let November’s congressional elections go forward as scheduled. Another made two separate decisions involving the constitutional amendments voters will see on the ballot.
“There’s so much litigation going on no one seems to be able to keep track of it,” said lawyer Michael Crowell, who served as executive director of the Commission for the Future of the Courts and Justice in North Carolina in the 1990s.
Voting districts have been a legal football in North Carolina since the 1980s, with multiple cases landing at the U.S. Supreme Court. The recent ruling, that the state’s congressional districts are unconstitutional partisan gerrymanders, is merely the latest iteration.
Other cases involved disputes between Democratic Gov. Roy Cooper and the Republican-controlled General Assembly. Or, before that, between the General Assembly and Republican Gov. Pat McCrory.
Some blame what they see as an over-reaching legislature. Others point to “activist” judges, who they say have begun making law, not interpreting it.
“I think there’s a fairly strong consensus in the country that judicial powers are not being exerted with appropriate restraint, and it’s becoming dangerous,” said Republican Sen. Dan Bishop of Charlotte.
To be sure, other N.C. political fights have gone to court. In addition to the flood of redistricting cases, House Bill 2 — the so-called “bathroom bill” — sparked lawsuits. And McCrory won a landmark ruling against the General Assembly in a separation of powers case. But more and more, it seems, issues that were once settled by politicians are taken to court.
Burley Mitchell, a Democrat and former Supreme Court chief justice, said hot-button political issues were once a rarity in court.
“There used to be one or two in a generation,” he said. “Now there seems to be one or two a month. . . . That’s something that really has troubled me . . . Any time anybody disagrees with a legislative action they race off to court.”
Recent cases thrust judges into the middle of heated political issues.
In the congressional district case, the three-judge panel raised the prospect of new districts and delayed elections.
Another court essentially forced lawmakers to rewrite two proposed constitutional amendments. And another allowed two candidates to appear on the ballot with their new party labels — despite the legislature’s effort to prevent it.
But it wasn’t the first time judges found themselves embroiled in politics.
In the last few years, lawmakers shrunk the state court of appeals, put party labels on judicial races, eliminated public financing for court elections and done away with this year’s judicial primaries. They also redrew the districts in which some judges serve. An analyst with the National Center for State Courts told the Observer in January that nowhere in America were so many changes coming to courts in such a relatively short time.
“This last session of the legislature, really the last couple, involved more attempts to manipulate and control the courts than we’ve seen in a very long time,” said Crowell.
The tension between Cooper and GOP lawmakers goes back far.
As attorney general, he often defended laws that he didn’t necessarily agree with, including one — later overturned — requiring voters to show an ID. But he refused to defend others, including House Bill 2, which limited protections for the LGBTQ community.
In 2016, then-Gov-elect Cooper sued the legislature even before taking office. He challenged laws he said would limit his power as governor. Since then there have been at least six cases involving disputes between the governor and the legislature over issues such as Medicaid expansion, the state budget and changes to the state board of elections.
“Legislators have repeatedly steamrolled checks and balances in order to disenfranchise voters, pick their own judges and regulators and pass unconstitutional laws without challenge,” Cooper spokesman Ford Porter said.
Republicans say Cooper tried to circumvent the process in the amendments case when, after losing in a lower court, he went directly to the state Supreme Court.
“Roy Cooper seems to think that he alone can determine the structure of government in North Carolina, which is why he won’t stop suing to take away North Carolinians’ right to vote on constitutional amendments,” said Pat Ryan, a spokesman for Senate Leader Phil Berger.
Courts as political arenas
Courtroom fights aren’t uncommon in election years, especially when constitutional amendments are involved.
In Florida, the state Supreme Court is hearing challenges to two proposed constitutional amendments. “In election years Supreme Courts throughout the United States tend to be very busy (with) constitutional amendments,” said Bill Raftery, an analyst with the National Center for State Courts.
But North Carolina’s proposed amendments have been just one point of contention.
“We haven’t had a confluence of so much litigation about an election so close to an election,” said Gerry Cohen, a former longtime legislative official.
Courts are designed to umpire political disputes. But lawyers say there’s a danger of courts becoming just another arena for political battles.
“What I know and what I think what all lawyers know and understand is that courts and judges are not political, it’s not in their nature,” said Crowell. “And people get a false impression of the way courts work. . . . That’s what’s doing real damage.”
Former Superior Court Judge Tom Ross, a former president of the UNC system, puts some blame on redistricting. Increasingly sophisticated software has allowed mapmakers to draw districts that amplify partisan advantage as well as partisan divisions.
“Politics in America is at a higher level of partisanship than probably we’ve ever seen it,” Ross said. “It’s just a really strong argument why we need to reform the system.”
Mitchell, the former chief justice, said politicians “have come to look at the courts as simply another legislative branch.”
“I’m concerned,” he said, “that if we can’t get judges . . . away from all these partisan considerations and electing them on a partisan basis, that we’re going to destroy the courts.”
▪ Congressional districts: A three-judge panel allowed November’s congressional elections to go forward in districts even those it had found unconstitutional a week before and threatened to delay elections.
▪ Constitutional amendments: The state Supreme Court rejected Gov. Roy Cooper’s challenge to two proposed amendments dealing the governor’s appointment power. On the same day the court rejected an appeal from the N.C. NAACP involving two other amendments, including one that would allow a new voter ID law.
▪ Ballot identification: Last month the Court of Appeals rejected an effort by Republican legislative leaders to bar Raleigh attorney Chris Anglin from running for the Supreme Court as a Republican. He had been registered as a Democrat until shortly before filing to run.