North Carolina’s Judicial Elections: The Last Resort of a Republican State
There’s a lot on the ballot in North Carolina this election season, but perhaps some of the most important elections are getting the least attention. Voters are, of course, focused on the US Senate race in North Carolina and the Republican primary between former governor Pat McCrory and US Rep Ted Budd. That election will impact the control of the Senate and whether or not Democrats have any hope of pushing their agenda. But other elections will have a significant impact on North Carolina.
North Carolina is holding judicial elections for four seats on the Court of Appeals and for 2 Supreme Court Justices. Democrats currently hold 5 of 15 seats on the Court of Appeals and have a narrow 4 to 3 majority on the Supreme Court. This majority has been essential in keeping the Republican House and Senate in check. Most recently, the Supreme Court has had a considerable role in the redistricting process.
This year, 2 Democrats and 2 Republicans on the Court of Appeals are up for re-election, while both up for re-election on the Supreme Court are Democrats. This means Democrats could potentially lose their majority on the Supreme Court.
Judicial elections in North Carolina are partisan, the party of a potential judge or justice is public, and it is run similarly to an election for representative or governor. Elections were non-partisan for years until a 2017 law. Governor Cooper vetoed the bill, but Republicans successfully overrode his veto. The law disadvantages Democrats running for judicial office, as North Carolina remains leaning Republican and judicial elections are statewide. This was undoubtedly a motivation for Republicans in passing the law, as the Democratic majority led to several rulings on issues like redistricting that did not benefit Republicans.
Partisan elections for judges are pretty unusual, with only eight states using partisan elections to select their judges. Other methods include non-partisan elections, assisted appointments, and legislative elections. There is a lot of debate over whether or not judicial elections should be partisan, as judges are supposed to be non-partisan. This debate is currently raging at the US Supreme Court level. Interestingly enough, the biggest proponents of an independent judiciary are Republicans, even as they politicize the courts repeatedly.
In North Carolina, the recent passage of this law means this will be the first partisan election many judges face. The North Carolina Court of Appeals consists of 15 judges who rotate hearing cases in panels of three. There are currently 5 Democrats and 10 Republicans on the court. All judges serve eight-year terms, and 4 have terms expiring this year. Republican Chief Justice Donna Stroud, Republican John Marsh Tyson, Democrat Lucy N Inman, and Democrat Darren Jackson compose the list of those with expiring terms. Donna Stroud, the current Chief Justice, is running for re-election. She faces Beth Freshwater-Smith, a District Court judge in the Republican primary. The winner will face Brad A Salmon, a Democrat, current District Court Judge, and former state house representative. John Marsh Tyson is also running for re-election, and he will be facing Democrat Gale Murray Adams, a Superior Court judge, in the general. Lucy N Inman is running for a seat on the Supreme Court, leaving her seat open. Republican Julee Tate Flood and Democrat Carolyn Jennings Thompson, a former District Court and Superior Court judge. Darren Jackson is running for re-election; two Republicans challenge him. Governor Cooper appointed Jackson in 2020 to fill the vacancy from Berger’s election to the Supreme Court. He is a former state representative and former House minority leader. The two Republicans challenging him are Charlton L Allen, a former North Carolina Industrial Commission member and former chair of the Iredell County Republican Party, and Michael J Standing, a former Air Force JAG and prosecutor.
Winning all these elections could prove quite a boon for Democrats, resulting in a 7 to 8 minority. But that is the best possible case scenario. The loss of either of these seats would be relatively devastating. It would further diminish any power Democrats have over the court and allow Republicans to get away with more.
The Democratic majority on the North Carolina Supreme Court is in danger this election. All three Republicans on the court are not up for election this year and are safe, while 2 Democratic seats are in peril. The loss of one seat would give Republicans the majority; the loss of both would devastate any possibility of keeping the Republican legislature in check.
Supreme Court elections have received slightly more attention than those for the Court of Appeals, although most voters still have no idea who to vote for. One of the seats has a primary to be held on the 17th of May, and 82% of voters remain undecided.
Seat three, currently held by Democrat Robin Hudson, is one of the two expiring terms. Hudson has decided not to run again, making it a contest between Democrat Lucy N Inman and Republican Richard Dietz. Both candidates are currently Court of Appeals Judges. Inman is giving up her seat on the Court of Appeals to run as her term is one of those expiring. If Dietz were to win, his replacement would be appointed by Governor Cooper.
Seat 5 is having a Republican primary in May. Incumbent Democrat Justice Sam Ervin IV is running for re-election, and he has no challenges from Democrats. Meanwhile, Republicans Trey Allen and April Wood are facing off. Both candidates have been open about running because they seek the end of the Democratic majority and have stated they want a constitutionally conservative majority.
Wood is currently a justice on the North Carolina Court of Appeals. She has served as a judge since 2002, initially on the District Court. She received her law degree from Regent University, a school she described as “the premier conservative law school in the country.” She has highlighted her previous experience on the bench, digging at Allen’s lack of experience as a judge.
Allen has ties to current Chief Justice Newby, as he clerked for him years ago. Newby is unable to endorse Allen but has shown obvious support. In a tweet, Newby stated, “I have known Trey Allen for almost 20 years. Trey is a man of integrity and honor. He is a brilliant [sic] constitutional conservative. His broad legal experience and recognized constitutional scholarship qualify him to serve on the Supreme Court. I would be honored to serve with him.” Allen was a Marine Corps Judge Advocate General and an associate professor of public law and government at the University of North Carolina’s School of Government. He is currently general counsel for the North Carolina Administrative Office of the Court, which runs the judicial system statewide. He was appointed to this position by Chief Justice Newby. Allen has highlighted that a win by Wood would result in her spot on the Court of Appeals being vacated, meaning Democratic Governor Cooper would appoint her replacement. The partisan makeup of the courts is incredibly important to Republicans.
Both candidates have very similar judicial theories. They are both originalists, like Antonin Scalia. They have stated they would interpret the constitution and laws are written and stated that justices are not legislators. This is generally code for not seeing protections for BIPOC, women, LGBTQ+ people, or other targeted peoples, in the constitution and allowing legislation to hurt them. Having Allen or Wood on the court would, without a doubt, result in the rights of minority and disadvantaged peoples being trampled on.
The Republican majority on the Court of Appeals has had consequences for the voting rights of felony offenders as recently as earlier this month. A 1973 law preventing those convicted of felonies from voting while serving out probation or parole was challenged as having discriminatory intent. A trial court found the law unconstitutional, but a three-judge Court of Appeals panel stayed this ruling. Plaintiffs, those challenging this law, are hoping to accelerate the appeal and for the state Supreme Court to take over the case rather than allowing the Court of Appeals to rule. Striking down the law would allow 56,000 North Carolinians to vote. With its strong Republican lean, the Court of Appeals is far more likely to maintain the law than the Supreme Court. As of now, those 56,000 North Carolinians cannot vote due to the Court of Appeals.
On the other hand, the North Carolina Supreme Court has recently shown the importance of its Democrat lean through the redistricting process. The Republican legislature passed predictably gerrymandered maps that heavily favored Republicans. The Supreme Court struck these down, calling them out for the partisan gerrymanders. The justices also refused to be bullied by the state legislature into letting bad maps stand by pushing back the date of the primary, so that redistricting could be resolved and not rushed. The current map for the congressional races was drawn by three special masters, a process ordered by the North Carolina Supreme Court. The Supreme Court approved the revised state House and Senate maps made by the state legislature. The interim plan, made by the masters, will only be in place for the 2022 midterms, and new maps will have to be drawn soon. In the end, the maps are much fairer than they had any hope of being without the intervention of the North Carolina Supreme Court.
While they have not received much attention, the judicial elections coming up for North Carolina in the primary and the general are incredibly important. These elections will determine whether or not we give Republicans free reign over the rights of minorities and over our democracy. These elections are going to be close, so every single vote counts. So get out and vote blue, all the way down the ballot. And, as always, if you or anyone you know needs a ride to the polls, give us a call or request a ride here. Happy Voting!
by Betsy Zalinski
