The hotly contested election for Chief Justice of North Carolina, which went through several recounts and concluded with challenger Paul Newby winning by 401 votes, is now formally in the books. Newby was sworn in as the state’s 30th chief justice on Friday.
More than a month after Election Day, the race to be Chief Justice of the North Carolina Supreme Court remains unsettled. Challenger Paul Newby won the original count over current Chief Justice Cheri Beasley by 406 votes. That lead dipped slightly after a machine recount, to 401 votes. Beasley then requested a manual recount in selected precincts, which is ongoing (and scheduled to be completed by December 14).
But the ancillary fights continue. Beasley has filed 87 protests across the state, conending that thousands of ballots were improperly disqualified. Newby has filed 14 protests of his own, arguing that hundreds of late-postmarked or otherwise invalid ballots were improperly counted.
After this episode, whoever wins — and it seems likely to be Newby — public confidence in the North Carolina Supreme Court as a fair and impartial body is almost certain to decline.
Back in 2017, the North Carolina legislature repeatedly battled Governor Roy Cooper over the size and composition of the state’s courts. The Republican-controlled legislature passed a bill which would return the state to partisan judicial elections, a move criticized both by Democrat Cooper and by the state’s then-Chief Justice, Mark Martin (who favored a merit selection plan). Cooper vetoed the bill, but the legislature overrode the veto. The legislature and Governor also fought over the size of the state’s Court of Appeals. Later, a series of undignified fights over the fate of individual judges and judicial candidates cast the state’s third branch in a political light that it never would have sought for itself.
The legislature’s changes seem to have had some of their desired partisan effect for 2020. As noted last week, Republican candidates at first appeared to sweep the state’s judicial races. Now the highest profile race, for Chief Justice, appears headed for a recount, with current Chief Justice Cheri Beasley (a Democrat) and current Associate Justice Paul Newby (a Republican) separated by just a few thousand votes.
There are also some cascade effects. Newby’s choice to run for Chief Justice meant that his Associate Justice seat on the court became vacant, and that open seat was sought by two Court of Appeals Judges, Lucy Inman and Phil Berger Jr. Berger, the Republican, won the Supreme Court seat, and his now-open seat on the Court of Appeals will be filled by Governor Cooper. In the end, the seven-member Supreme Court will still have a Democratic majority — either four (if Newby wins the Chief Justiceship) or five (if Beasley retains it).
So at the end of the day, Republicans may make some inroads into the state judiciary, but at the cost of further politicizing the third branch. Courts will have to work harder than ever to build public trust, not because of the quality of their decisions, but because legislators have seen fit to brand them with a (D) or an (R).
Until partisans on both sides end their efforts to undermine the courts in this way, I don’t want to hear a damn thing about declining judicial legitimacy. It is a frontal assault on a co-equal branch of government, nothing less.
Even with all eyes trained on the Presidential election, voters in more than thirty states also cast ballots this week for (or against) state judges. Here are some of the preliminary stories coming out of Election Day:
In both Dallas County and Harris County, Texas, Democrats swept the contested judicial races, making it yet another election cycle in which a single party has taken control of the state judiciary in Texas’s two largest metro areas. In North Carolina, a party sweep of another type took place, with Republican judicial candidates winning each of their judicial races. Neither case should be seen as good news. Party sweeps strip the courts of critical judicial experience, replacing it only with a partisan fetish that a judge with an (R) or a (D) next to his name will rule in a certain way. If the judges are fair, the partisans are more often than not disappointed by some case outcomes. And if the judges give the partisans what they want every time, the integrity of the judiciary is compromised. (Just a thought: perhaps it is finally time to eliminate partisan judicial elections altogether.)
In Illinois, for the first time, a sitting supreme court justice lost his retention bid. A little less than 57% of voters chose to retain Justice Thomas Kilbride, but under the state’s unique rules, at least 60% of voters needed to favor retention for Kilbride to keep his seat. Thus we have the unusual circumstance in which a judge whom most voters wanted to retain nevertheless will have to leave the bench. (The unusual nature of Illinois’s judicial retention system has an equally unusual history, which I might try to unpack in a future blog post.)
In Tampa, Florida, a state trial judge who lost his primary race in August pushed the state supreme court not to certify this week’s judicial election results. The judge is arguing that the current state law allows judicial races to be settled in the primaries, whereas the state constitution requires that they be decided during the November general election.
And in Arizona (where ballots are still being counted as of this writing), the Maricopa County Democratic Party campaigned against the retention of two state trial judges, including the only Native American judge on the Maricopa County Superior Court. Both targeted judges were deemed by the state’s independent Commission on Judicial Performance Review to have met performance standards. Unlike Illinois, a simple majority in favor of retention is enough to keep the judges on the bench.
In anticipation of a reopening on June 1, the North Carolina courts have asked attorneys to mail in their filings well in advance of that deadline. The court system expects a massive crunch in paperwork once it resumes full operations. Due to the coronavirus pandemic, filings are down 54% for the year, and case dispositions are down 65%.
A seat on the U.S. District Court for the Eastern District of North Carolina, which has been vacant for nearly fourteen years, may finally be filled after President Trump nominated UNC law professor Richard E. Myers II for the position on Wednesday.
The vacancy, which has been in place since the end of 2005, is a testament to the dereliction of constitutional duties by both the executive and legislative branches. George W. Bush originally nominated attorney Thomas Farr to the seat, but Senate Democrats twice blocked the nomination. President Obama then offered two different nominees for the same seat during his eight years in office, only to have both nominations blocked by home-state Republicans. President Trump renominated Farr to the seat in 2017, but no vote ever came to the Senate floor.
Partisans will surely argue that each of the opposing party’s nominees was unacceptable, and that North Carolinians are better off with no judge than with a bad one. But tell that to the people who have had to wait longer for their cases to resolve.
Good luck to Professor Myers, who deserves better treatment than previous nominees and at least a speedy and fair up-or-down vote.
When I started following North Carolina’s judicial election process a decade ago, it was a model for fair practices in directly electing the judiciary. Candidates ran in nonpartisan, publicly funded elections, and much of the chicanery that affects judicial elections in other states (like attack ads, targeted campaigns, and the like) was largely absent.
But sadly, the last couple of years has seen the North Carolina process turn into a clown show, as as aggressive state legislature tussles with the governor politicize the judiciary. Elections are once again partisan, and filling vacancies is ugly and political. And there is no sign of it ending anytime soon.
To wit: this week the state legislature passed a new law that appears to target a single candidate for the state supreme court. Chris Anglin is one of three candidates for an open seat on the court this fall. Anglin was registered as a Democrat until June, when he changed his party affiliation to Republican. The switch meant that two candidates would be identified as Republicans, and one as a Democrat, on the ballot.
Republican legislators, apparently concerned that the presence of two Republicans on the ballot would split the partisan vote and throw the election to the lone Democrat, hurriedly passed a bill that would remove any party designation for a candidate who switched parties less than 90 days before the election. As a result, Anglin would remain on the ballot, but without a party designation.
Republicans have couched the bill as a fair compromise to prevent the gaming of the election system. Democrats and Anglin are both crying foul. The question now is whether Governor Roy Cooper, a Democrat, will veto the bill.
Republicans in North Carolina and Pennsylvania have been rightly criticized for attempting to politicize their state courts through ill-advised, partisan legislation. But the Democrats are hardly saints in this area. With today’s judicial election in Wisconsin, several media outlets have pointed out the rampant politicization of the entire election process, which includes endorsements of the “more liberal” supreme court candidate by Joe Biden and Eric Holder. And the Daily Beast has a piece entitled National Democrats Want to Make Judicial Elections the Next Crest in the Blue Wave, which quotes Faiz Shankar, national political director for the ACLU:
“Increasingly, I think, us along with a lot of progressive actors have really felt that elections pose one of the most powerful ways to change policy…. In a large race…there are so many issues at play and it’s unlikely that you could just make criminal justice the sole major issue at play. Whereas in some of these smaller races, and ones that have less turnout, you can really make it a threshold question.”
Back in 2011, I studied the Wisconsin Supreme Court election, and concluded in a subsequent article that even in that ugly, politicized race, voters showed that they were mostly concerned about a candidate’s capacity for neutrality and procedural fairness, not partisan ends. I hope that Wisconsin judicial voters continue to rise above the partisan politics that the national parties are flinging their way.
In July, the White House nominated Thomas Farr for a vacant judgeship in the Eastern District of North Carolina. But this was not just any vacant judgeship — the position has sat empty for twelve years as a result of extreme partisan gamesmanship in the Senate. Farr was approved by the Senate Judiciary Committee in October, but the full Senate never voted on his nomination. Because no action was taken by year-end, the nomination was returned to the White House.
The President can renominate Farr after the first of the year, and probably will despite Democratic concerns about Farr’s alleged role on voter suppression tactics in the 1990s. If renominated, Farr would face a slightly different Judiciary Committee for a second hearing, with Al Franken gone and replaced, perhaps, by Cory Booker or Kamala Harris.
Whatever transpires with Farr’s nomination, both the Senate and the White House owe it to the people of North Carolina to finally fill this seat. The dozen-year vacancy is both embarrassing and detrimental to the work of the courts.
I have tracked the ongoing legislative battle in North Carolina over the selection of state judges. The judges themselves are caught in the middle, unable to comment in any direct or meaningful way. This article nicely demonstrates how sitting judges in the state are navigating the treacherous political waters.
Note that judges can — and sometimes do — comment on legislative issues that affect them. But most of the time that commentary goes to judicial salaries and resources, or other relatively apolitical issues affecting the judiciary as a whole. This selection debate is a political morass, and the judges are wise to stay out if they can.