Voters in 2022 will decide who controls the NC Supreme Court. Here’s why that matters.
Unlike the U.S. Supreme Court, whose justices are appointed to lifetime seats on the bench, North Carolina’s Supreme Court justices are elected to eight-year terms. And the 2022 election is going to determine which political party controls the court.
Democrats have a 4-3 majority now, but two Democratic justices’ terms are up. That means if Republicans can flip even one of those seats, they will take back the majority for the first time in several years.
Republicans won every single race for the N.C. Court of Appeals and Supreme Court in 2020 and are confident about their chances heading into 2022 — since the party that doesn’t hold the White House typically does well in midterm elections. In addition to the two Supreme Court races on the ballot next year, there are also four Court of Appeals seats up for election.
“Voters have the opportunity to elect judges who will uphold the Constitution, the rule of law and rule with common sense,” the NC GOP says on a website it started to specifically promote and raise money for its judicial candidates.
N.C. Supreme Court elections often fly under the radar, particularly compared to the high-profile confirmation hearings for the U.S. Supreme Court. But that has begun to change in the last decade or so.
The Republican-led legislature made Supreme Court elections partisan, instead of nonpartisan, a month after Democrat Mike Morgan beat Republican Bob Edmunds in 2016. The legislature also ended public financing for judicial elections in 2013 — both decisions that Democrats continue to oppose as making judicial elections too political.
“North Carolina Republicans have taken every opportunity to erode public confidence in the courts,” said Bobbie Richardson, the chair of the state Democratic Party, in a written statement to The News & Observer. “By choosing to make our judicial branch more and more partisan, they are undermining a pillar of our democracy.”
Yet even before those recent changes, outside groups on both sides of the aisle had begun pouring tens of millions of dollars into helping prop up their preferred candidates.
The 2016 race in which Morgan unseated Edmunds was reportedly the most expensive Supreme Court race in the nation that year, but it was far from the first multimillion-dollar Supreme Court election here.
‘Decisions that affect all of us’
Why so much money? The court’s rulings can have massive implications for the worlds of politics, business, criminal justice and more.
The Chamber of Commerce and police unions spend to support Republican judges, while groups for trial attorneys and civil rights advocates spend to support Democratic judges.
“The Supreme Court makes decisions that affect all of us, not just corporations,” said Geeta Kapur, a Durham civil rights attorney.
She pointed to a case she argued at the Supreme Court nearly a decade ago, representing a student from a high school in Brunswick County. Female students had been forced to partially lift their bras, in front of male staffers, to be searched for drugs.
The author of a new book on civil rights struggles at UNC-Chapel Hill, Kapur is also involved in a racial justice case that’s currently pending before the Supreme Court. In that case, a Black man was convicted of murder in rural Eastern North Carolina after prosecutors kept multiple Black people off the jury — including one woman who was removed specifically because she marched in Black Lives Matter protests.
There’s a decades-old precedent from the U.S. Supreme Court that convictions can be overturned if prosecutors remove potential jurors for racial reasons — but no North Carolina court has ever used that precedent, The N&O reported in 2020.
Kapur’s case could change that. Or it could not, depending on how the justices rule.
“A case like that will have an enormous magnitude on how jury selection is done throughout our state,” she said.
Political cases
And then there’s gerrymandering.
Some states have restrictions on who draws political district maps or how. North Carolina, for the most part, does not. Here the process is run entirely by whichever political party controls the legislature, which means that the party in the minority is constantly suing over the maps their opponents drew.
The frequent lawsuits therefore give the state courts significant power in determining major political issues, like how many seats each party might win in North Carolina’s congressional delegation.
Bob Orr, a retired Republican judge who served on the N.C. Court of Appeals and Supreme Court from 1986 to 2004, said he doesn’t think he ever raised more than $100,000 for an election. But soon after he left the court, judicial races started costing millions.
“You really saw the parties spending a lot more, and lots of dark money coming in,” Orr said. “I really blame it about 90% on redistricting litigation. Because the state Supreme Court is the last word on redistricting.”
Lawyers, maps and money
In 2011 the Republican Party won control of the state legislature for the first time in over a century — and just in time to control that decade’s round of redistricting. Ever since then the Republican State Leadership Committee, a national group whose REDMAP project spearheaded the GOP’s aggressive and widely successful redistricting efforts in numerous states, has spent millions to get Republicans elected to the N.C. Supreme Court as well.
Campaign finance reports show much but not all of its spending has been funneled through other groups — like a political action committee called “Justice For All NC.” State records show Justice For All got almost all of its money in both 2012 and 2014 from the RSLC. It spent more than $3 million to influence Supreme Court elections in those years, with ads like one that accused a Democratic incumbent of siding with pedophiles.
Liberals are now catching up, with groups like the National Democratic Redistricting Committee. The NDRC spent over $1 million on races for the state legislature and Supreme Court here in 2018 and 2020. Another group that backs Democrats, N.C. Families First, spent nearly $1 million on redistricting-focused ads in the 2016 election for the court, plus over $1 million in 2018 for another seat on the court.
Orr said that with so much money from state and national political groups being pumped into the judicial races, the courts have become more politicized than they once were.
“I’ve told folks if you reform redistricting, you’ll also do a lot to take politics out of the court,” he said.
Michael Crowell, a longtime expert on the state judicial system, said the public thinks judges are more political than they actually are — since their rulings on issues like gerrymandering overshadow the vast majority of their work.
“It seems to me the way the courts get tarnished by having to deal with the redistricting process is another argument in favor of changing how we do it,” Crowell said. “It’s a mess, and the only people who like it are the politicians.”
In the meantime, three gerrymandering lawsuits are currently moving forward in North Carolina. All are backed by liberal groups — including the NDRC, whose 2018 campaign spending might now raise questions over whether the justice they supported that year, Democrat Anita Earls, should recuse herself from hearing their challenge.
All three lawsuits call the Republican-drawn maps unconstitutional for racial or partisan reasons. A trial is set for January, and the Supreme Court delayed the primary election to May 17 to give more time for any changes. If the maps themselves eventually go to the Supreme Court, a major question could be whether that happens in 2022 — when Democrats will still have the majority — or in 2023 or beyond, when Republicans might be in the majority.
Who’s running?
There’s no complete list yet of who will run for the two seats, since the court delayed candidate filing along with the primaries. However, a few days of filing earlier this month gave a sneak peek of at least some, if not all, of the candidates who plan to run.
One seat is currently held by Democrat Robin Hudson, who is not seeking reelection. Lucy Inman, a Democrat, and Richard Dietz, a Republican, have announced their plans to seek the seat. Both are currently on the N.C. Court of Appeals.
The other seat is held by Sam Ervin IV, who plans to seek reelection. There will likely be a Republican primary to determine who challenges him, since both April Wood and Trey Allen have announced they plan to run for the GOP nomination. Wood won a seat on the Court of Appeals last year, and Allen is the top attorney for the state courts system.
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at link.chtbl.com/underthedomenc or wherever you get your podcasts.
This story was originally published December 28, 2021 at 5:00 AM with the headline "Voters in 2022 will decide who controls the NC Supreme Court. Here’s why that matters.."
