In this year’s midterm elections, North Carolina voters will determine which party holds the balance of power in the state’s highest court. And with major implications for everything from future elections to reproductive rights in the state, Republicans are also hoping to win four more seats on the 15-member state Court of Appeals.
North Carolina has made great strides in the past two years on racial justice and suffrage, according to Mitchell Brown, suffrage adviser for the Southern Coalition for Social Justice.
But Brown said those gains may be short-lived depending on the outcome of this year’s statewide court contests, particularly the two North Carolina Supreme Court seats on the ballot.
“If the court flips and changes makeup, we could be back to an era of reduced voting rights,” Brown said.
Affected Voting Rights Advocates
The SCSJ helped lead a major case in the state Supreme Court this year that had Republican-drawn electoral maps thrown out for being unconstitutionally Gerrymander with extreme partisanship. It was a case decided by a narrow 4-3 majority, with the four Democrats on the current court winning over the three Republicans. That balance of power will flip if a Republican wins just one of the state’s two Supreme Court races this year.
Brown said he fears the impact it could have on efforts to expand voting rights in the state.
“Where the Legislature passes laws that are simply approved by the Supreme Court,” he predicted, “and are allowed to go forward even if they diminish the voting rights of North Carolinians and, more specifically, diminishes black voting rights here in North Carolina.”
One of the Supreme Court races pits Appeals Court Justice Lucy Inman against her fellow Appeals Court Justice Richard Dietz. They are vying to replace retired Democratic Judge Robin Hudson.
In a candidates’ forum hosted by PBS NC and the North Carolina Bar Association, Dietz highlighted what he sees as the importance for judges to reach consensus in cases and avoid writing dissenting opinions.
“And I think that’s a big part of what our Supreme Court needs right now more than ever, it’s people going there, no political mission, no plan to try to take control of the court but just work as a team and build that consensus,” Dietz told the moderator.
Inman, who said she wrote dissenting opinions when necessary, disputed that view.
“I think it’s also important, though, to respectfully know when to stand up for what’s right,” Inman replied.
Consensus will be difficult on a divided high court
Currently, no photo ID is required to vote in person in North Carolina, but that could change depending on the outcome of a case being considered by the state’s Supreme Court. Expert testimony from plaintiffs fighting the mostly Republican-backed ID law showed that black voters were less likely than white voters to have the required IDs.
And next year, the state High Court will consider whether people formerly incarcerated for crimes but still on probation should have their voting rights restored. In March, a lower court ruled in favor of restoration, opening the door for thousands of formerly incarcerated people to register for this year’s midterm exams.
Judicial candidates tend to shy away from specifics when talking about issues they might vote on, so voters must make decisions based on vaguer statements about legal philosophy and methods of interpretation. Voters also have partisan labels, as in North Carolina, judicial candidates run with partisan affiliations.
“My judicial philosophy is really one of judicial restraint,” said Trey Allen, the Republican challenging incumbent Justice Sam Ervin, a Democrat, in the other Supreme Court race. “I think the courts should follow the law closely. I think they should avoid injecting themselves into politics.”
Judicial restraint is the code for a stricter interpretation of the laws and the constitution, a philosophy that appeals to conservative voters like Tami Fitzgerald.
“We call it textualism and originalism and that’s what people should be looking for in their candidates,” said Fitzgerald, founder and executive director of the NC Values Coalition, an umbrella group for pro-life Christian organizations. “In other words, are these candidates going to interpret the law as it is written or are they going to make the law and be militant magistrates?
Abortion and redistricting likely head to state Supreme Court
Fitzgerald said this year’s Supreme Court races are crucial with abortion cases and new district maps almost certain to appear on the docket in the near future.
Ervin, who has served on the state Supreme Court since 2015, said in his PBS NC Candidates Forum that he thinks it’s important the court doesn’t become a political institution.
“What I try to do,” he said, “is call them what I see them, because at the end of the day what you’re supposed to do is you’re supposed to be fair, you are supposed to be impartial, and you are supposed to follow the law as you understand it and not as you would like it to be.”
As with the confirmation process for federal judicial nominees, Meredith College political science professor David McLennan said bland statements by court nominees can leave voters in the dark.
“They say, ‘Well, we’re just going to enforce the law or we’re neutral arbiters of the law,'” McLennan said of judicial nominees. “And then we end up with Dobbs.”
A U.S. Supreme Court ruling in June overturned 50 years of precedent by overturning Roe v. Wade – a 1973 case that established a woman’s constitutional right to have an abortion – and put reproductive rights at the center of this year’s midterm elections.
Judge Sam Alito, a conservative original, wrote the majority opinion in the Mississippi case, known as Dobbs.
After Dobbs, Republican lawmakers in North Carolina immediately moved to reinstate a ban on abortions after 20 weeks. And Democrats fear the GOP will push for tougher restrictions after midterms.
In the absence of direct comments from judicial candidates on particular cases or issues, voters must rely heavily on these partisan labels to help make choices at the ballot box.
“They’re probably going to look at the R and the D next to the candidate’s name and fill in those bubbles,” McLennan said.
Republicans seek to build on 2020 gains
And McLennan said it’s inevitable that, depending on a person’s political affiliation, when decisions don’t go their way, voters are bound to see the outcome through a partisan lens.
“They’re going to call it partisanship even though it may be an interpretation of the law,” he said.
In one of four appeals court races, Republican Julee Flood told the moderator of her PBS NC Candidates Forum that she doesn’t believe partisanship has a place in the courtroom.
“We are a court of correction of errors,” Flood said. “We apply the law as it is written. We are not here to make the law.”
On her campaign website, Flood said she believes fairness is achieved through judicial restraint and strict adherence to the original language of state and federal constitutions.
Carolyn Thompson, the Democrat running against Flood, also said at the forum that she doesn’t think partisanship has a place in the courtroom. The former District Court and Superior Court judge said the key to her judicial approach was fairness, impartiality and common sense.
“I’m the one who’s going to make sure your individual rights are protected and that we uphold our Constitution,” Thompson said.
In the other races of the Court of Appeal:
- Mecklenburg County District Court Judge Republican Michael Stading challenges incumbent Democrat Darren Jackson. A former minority leader in the North Carolina General Assembly, Jackson was appointed as a judge of the Court of Appeals by Governor Roy Cooper.
- Cumberland County Superior Court Judge Gale Adams is running against incumbent Republican John Tyson.
- Donna Stroud, Chief Justice of the Court of Appeals, is running for re-election against Democrat Brad Salmon, District Court Judge for Lee, Harnett and Johnston Counties.
A recent WRAL/SurveyUSA poll showed that the GOP judicial candidates for state Supreme Court had a slight advantage in this year’s races, but with significant slices of undecided voters.
In 2020, Republicans swept all eight statewide court races in North Carolina — three for the Supreme Court and five for the Court of Appeals.