North Carolina judicial selection update

It has been a while since I wrote about the political wrangling between North Carolina Governor Roy Cooper and the state legislature over the selection of state judges. But a lot has been going on.

Some background: North Carolina primarily elects its judges, with the governor filling vacancies on an interim basis as they occur. But there seems to be a general consensus that the current process is not functioning well. Contested (now partisan) elections, political gamesmanship with respect to filling judicial vacancies, and outworn judicial districts all have contributed to the malaise. The issue has become a flashpoint in recent months, in part because of a widely publicized tug-of-war between the state’s courts and its Republican legislature. The court system has struck down many significant pieces of legislation in recent months, leading to loud complaints from legislators.

In the last several weeks, under the guise of judicial reform, the state legislature has passed two bills that would radically remake the state’s judicial selection process–and with it, the state’s judiciary.

On October 5, the legislature passed Senate Bill 656, which would eliminate primaries for all judicial races in 2018, as well as raise the number of registered and qualified voters needed to place an unaffiliated judicial candidate on the ballot. The effect of the bill would be to fracture the electorate, so that a candidate could win in the general election with only 30 percent of the overall vote.

Proponents of Senate Bill 656 argued that it was a housekeeping measure, designed to  give the legislature the time it needed to consider more sweeping changes to the election system, such as redistricting or a move to merit selection of judges. If so, it might be advantageous — merit selection has been championed by influential North Carolinians, and would be a much better option for selecting judges than the current process.

But the bill also drew loud cries from Democrats and local leaders, who charged (among other things) that the legislation would eventually force judges in urban districts (which judgeships would be “double-bunked”) to run against each other, assuring that only one could win the seat. Opponents also alleged that new districts would disproportionately impact African-American judges.

On October 9, Governor Cooper vetoed the bill, stating that

This legislation abolishes a scheduled election and takes away the right of the people to vote for the judges of their choice. It is the first step toward a constitutional amendment that will rig the system so that the legislature picks everybody’s judges in every district instead of letting the people vote for the judges they want.

But both houses of the state legislature voted to override the veto on October 17.

House leaders then doubled down, offering an amendment to the state constitution that would immediately shrink judicial terms to two years (from four or eight). The practical impact of the amendment (which could come before voters next May) would be to place every judicial seat up for election in November 2018.  The proposal, couched as Senate Bill 698, drew sharp criticism from members of both parties. Republican Bob Orr, a former member of the state supreme court and current gubernatorial candidate, called the proposed amendment “a continued effort to try and intimidate the judiciary.” And Democrat Marcia Morey, a former chief district court judge from Durham, called the bill a “systematic attack on North Carolina’s judiciary.”

This is all very ugly and tragic. North Carolina’s citizens deserve a meaningful and thoughtful discussion about the way they choose their judges, and certainly some improvements are in order. Indeed, a merit selection plan has been under discussion, so much that the North Carolina Conference of Superior Court Judges has hired two lobbyists to be their “eyes and ears” in Raleigh. But the larger debate has been hijacked by partisan politics, and it is hard to see the recent legislation as any other than a transparent attempt to populate the courts with judges friendly the current legislature.