How a small change in the law could have a big impact on NC's Supreme Court race

Barbara Jackson, left, and Anita Earls are candidates for the N.C. Supreme Court.
Barbara Jackson, left, and Anita Earls are candidates for the N.C. Supreme Court. File photos

A little-noticed bill passed by lawmakers last month could have a big impact on the race for North Carolina's Supreme Court.

The bill, now law, will put Democrat Anita Earls' name last on the ballot for the court contest. It would have come first under the old law.

Studies have shown ballot order favors the candidate listed first, and could make a difference in a close race.

That change comes on the heels of another new law that puts all judicial races — including the Supreme Court — at the bottom of the ballot behind other races.

"It's clearly done in the hopes of Republicans that ballot fatigue will kick in, and that will result in a drop-off of votes for those offices at the bottom of the ballot," said Wayne Goodwin, the state Democratic chairman.

"That's the same rhetoric we always hear," said Republican Sen. Ralph Hise, who chairs the Senate Elections Committee. "This was done to take the partisanship out of ballot order."

The Supreme Court race is North Carolina's highest-profile statewide contest. Earls is running against incumbent Republican Barbara Jackson and Raleigh Republican Chris Anglin. Many Republicans consider Anglin, who until mid-June was a Democrat, a plant intended to dilute the GOP vote.

Chris Anglin

Democrats currently hold a 4-3 majority on the high court.

Earls' name will appear last on the ballot for two reasons:

One was an action by the State Board of Elections and Ethics Enforcement, which in February held a random drawing to determine alphabetical order of primary candidates. Two children picked the letter "F" from a glass jar containing letters of the alphabet. That meant a name starting with "F" would get the first ballot position.

Names would then cycle through the alphabet with those starting with "E" at the end.

The second reason was a move last month by the legislature. Under a bill first introduced last year, separate random drawings would have been held for the primary and for the general election.

But in mid-June, the Senate added a provision that eliminated the separate drawing for the 2018 general election. That means a candidate whose name starts with "E" would again be last.

In previous elections, candidates listed first were those in the governor's party. Like Gov. Roy Cooper, Earls is a Democrat.

"This was an obvious attempt to help the Republican candidate and hurt the Democratic candidate," said University of Virginia political scientist Larry Sabato. "There's no doubt about that."

Earls spokeswoman Caroline Spencer called the change "just another example of NC GOP games to try to stay in power."

To political scientists, ballot order can result in "position bias." That's the subject of a federal court case in Florida.

There, Democrats are suing the state arguing that Republicans have long had the advantage of appearing first on the ballot. They claim the top position can be worth up to 5.4 percentage points to a candidate.

"North Carolina is a very balanced state in close races, so if it affects only 2 percent that could make a difference," said Richard Winger, publisher of Ballot Access News.

Jim Morrill, 704-358-5059; @jimmorrill