Summary:
- North Carolina’s courts have played a major role in shaping the state’s political landscape, particularly through rulings on legislative districts and election laws that affect how political power is distributed.
- Judicial elections have become increasingly expensive and influenced by outside spending, especially after the rise of independent expenditures following the Citizens United decision, bringing millions of dollars into state Supreme Court races.
- The growing politicization of judicial elections and court decisions has raised concerns about polarization and the long-term independence of North Carolina’s judiciary.
The North Carolina Supreme Court currently has a 5-2 Republican majority; the Court of Appeals holds a 12-3 Republican majority. Although North Carolina’s justice system should administer the law without fear or favor, regardless of party, the current 5-2 Supreme Court majority has recently taken a hard tack into extraordinarily partisan territory, following a plan first articulated in the mid 2010s to stack the deck and create a political advantage that would cement one-party rule for the Republican Party.
Court Decisions Shape Legislative Districts
Back in 2013, a conservative strategist named John Davis published an article called “Lose the Courts, Lose the War” as part of a series called “How the North Carolina Republican Party Can Maintain Political Power for 114 Years” (Democrats previously controlled North Carolina for 114 years). In it, he argued that control of the state ran through the Courts, and that Republicans should focus on winning the courts and passing legislation that would stack the deck for them in upcoming elections. Without control of the courts, such legislation, like the changes moving the nonpartisan administration of elections from Democratic Governor Stein’s chain of command to Republican Auditor Dave Boliek’s authority.
The courts have made multiple significant decisions that reshape our electoral politics in the 21st century. One of the earliest was Stephenson v. Bartlett (2002). A number of prominent Republican plaintiffs, including William K. Stephenson, Jr. (for whom the case is named), Tom Fetzer, and Phil Kirk challenged the legality of the Democratic legislature’s maps. Fetzer, the former Republican Mayor of Raleigh, and Kirk, a former Chamber of Commerce President, both served at various points as Chairman of the State Republican Party.
They argued that the legislature’s maps violated the state Constitution’s “whole county” provision, which mandates that legislative districts avoid splitting counties between districts unless compelled to by federal law. The state Supreme Court affirmed this argument, and the case stopped there. The legislature was forced to redraw the map, and this decision has shaped how districts are drawn in North Carolina ever since.
The Court’s Changing Composition
In the early 2000s, Republicans were beginning to see more success on the Supreme Court. There had been no Republicans elected to the Supreme Court until 1994, when Beverly Lake and Bob Orr were elected to the bench. In 2002, the legislature made judicial elections non-partisan (meaning the candidate’s party affiliation would not appear next to their name on the ballot) and adopted an optional public financing program for statewide judicial campaigns. Candidates who opted in would receive somewhere between $200,000 and $250,000, but would have to accept a firm cap on the amount of money they could raise into their own campaign committees from donors.
There was just one problem: public financing regulations could not restrict independent expenditures.
You’ve probably heard about independent expenditures, whether you know it or not. They’re often connected to so-called “dark money” or “super PACs” – groups that spend money to benefit candidates, but cannot legally “coordinate” with candidates.
What this means in practice is generally that candidates put information they want used in mailers or tv ads on their website, where anyone can see it, and these outside groups find that info, take notes, and then release similar or nearly identical content in their own materials. No “coordination” required.
Following the Citizens United decision in 2010, independent expenditures skyrocketed. The North Carolina Supreme Court was the focus of a lot of that spending.
In 2012, incumbent Court of Appeals Judge Sam Ervin IV, a Democrat, challenged incumbent Supreme Court Justice Paul Newby, a Republican (and our current Chief Justice). Both candidates accepted public financing, limiting the contributions they could raise. But in the final days of the race, vast sums of money poured into North Carolina to run tv ads for Newby. Outside groups spent $2.8 million on the race, almost 90% of which benefitted Newby.
Although the 2014 race between incumbent Democratic Justice Robin Hudson and conservative challengers Eric Levenson and Jeanette Doran saw $1.3 million in outside spending, $900,000 of which benefitted the two conservative challengers, Justice Hudson held her seat–thanks in large part to the split votes of conservative voters torn between two contenders in the non-partisan primary.
In 2016, outside groups again spent heavily to influence the Supreme Court races, this time spending $1.5 million to benefit the Republican, incumbent Justice Robert Edmunds, and $1.3 million on the Democrat, Justice Mike Morgan (who successfully defeated him; Morgan was also endorsed by President Obama). A later report set those numbers at $2.6 million for Edmunds and $2.4 million for Morgan. After the election in 2016, the state legislature passed a law making the State Supreme Court races partisan.
The 2018 race between Democrat Anita Earls and conservative candidates Barbara Jackson and Chris Anglin was a little quieter, with $1.4 million in total spending and only around $660,000 in outside spending, mostly benefitting Earls, but the 2020 race saw massive outside spending again–more than $3.4 million, nearly all of which benefitted then-Chief Justice Cheri Beasley, who lost to the current Chief Justice, Paul Newby, by just 401 votes.
That race put the court at a 4-3, slim Democratic majority. In 2022, that flipped to a 5-2 Republican majority, when Republicans Trey Allen and Richard Dietz defeated Democratic Justices Sam J. Ervine IV and Lucy Inman, in another incredibly expensive race. Candidates raised about $5.5 million, while outside groups spent about $4 million on the liberal justices and $5.65 million on the conservatives. That brings us to the most recent race: incumbent Democratic Justice Allison Riggs vs. sitting Court of Appeals Judge Jefferson Griffin. Justice Riggs received more in independent expenditures than Judge Griffin, whose questionable legal gambit to disqualify more than 60,000 votes cost both sides more than $2 million in legal fees.
In Sum
In Harper v. Hall, the current 5-2 Republican Supreme Court majority has gone back to undo previous Supreme Court decisions in order to create a political advantage for their fellow party members–in this case, by allowing the legislature to draw partisan gerrymandered maps. That is precisely the strategy recommended in the mid 2010s by conservative political consultant John Davis. They’ve also committed to an unusual rehearing practice in the multi-decade Leandro case, indefinitely delaying the previous Court’s mandate that the legislature fulfill its Constitutional responsibility to provide a sound, basic education.
That move toward more radically and transparently partisan decisions coincides with an era of unfettered outside spending by independent expenditure groups to influence judicial elections. The consequence for the state is more expensive elections and a more polarized court. Neither are cause for celebration.
PS: ICYMI Check out Influence NC’s Lunch Break with Justice Allison Riggs.
