The most important elections in North Carolina are the races for the N.C. Supreme Court.
So, pay attention!
Judges are easily forgotten amid presidential campaigns and Washington antics. Media obsessions and arguments over COVID-19 add to the din. But in a year when so many freedoms are suffocated by Democratic Gov. Roy Cooper’s arbitrary mandates, the only path to defend those freedoms is through the courts.
So far, that path has offered no relief to North Carolinians, who want only to open their businesses and exercise their freedoms.
That’s because all state court battles end in the state’s highest court, where Democrats hold a 6-1 majority. Those judges have shown — most recently in a bowling alley reopening lawsuit — that they’re likely to side with Cooper.
But on Nov. 3, the power dynamics might shift. Three seats on the N.C. Supreme Court are in contention, and three Republicans are jostling with Democrats for a place on the bench. GOP candidates are a team, and they’re running under one brand.
Supreme Court Justice Paul Newby, the only remaining Republican on the court, is running for the court’s top job against current seat holder — and Cooper appointee — Chief Justice Cheri Beasley. Court of Appeals Judge Phil Berger Jr., a Republican and the son of the N.C. Senate leader, is running against fellow Appeals Court Judge Lucy Inman for Newby’s vacated seat. Former Republican State Sen. Tamara Barringer of Wake County is facing off against Justice Mark Davis, a Democrat appointed to the court by Cooper in 2019.
The outcome of judicial elections will determine the laws governing North Carolinians in the years ahead, says Jon Guze, director of legal studies at the John Locke Foundation.
“Voters need to remember that the North Carolina Supreme Court has become a superlegislature,” Guze said. “As a result of judicial doctrines adopted in the second half of the 20th century, the court now has the power to uphold facially unconstitutional laws if a majority of the justices approve of them on policy grounds, to strike down facially constitutional laws if a majority of the justices disapprove of them on policy grounds, and to change the meaning of laws — and of the Constitution — in order to advance the majority’s policy preferences.”
Even a four-member majority on the seven-person Supreme Court wields more power than the General Assembly and the governor combined, Guze said.
The fate of Opportunity Scholarships, redistricting, and voter ID — to name a few issues — will be decided by those judges we elect Nov. 3.
Nariah, a sixth-grader from Charlotte, wants to continue her education at the private school where she’s currently enrolled.
Born two months premature, Nariah struggled in public school through kindergarten and first grade. She needed extra help. More time for assignments. A flexible learning schedule. Her grandmother and legal guardian, Janet Nunn, wanted Nariah to repeat first grade and master the fundamentals before moving on.
Nariah’s public school rejected that option.
Nunn was already paying a private tutor to help Nariah, she said during a recent interview with Carolina Journal’s Mitch Kokai. She couldn’t afford private school. She was desperate for options.
Then, Nunn heard about the N.C. Opportunity Scholarship program, passed by the General Assembly in 2013. The program gives vouchers of up to $4,200 per year to low-income students. It was exactly what Nariah needed. With the help of the scholarship, Nunn enrolled Nariah at Victory Christian School in Charlotte, where her granddaughter repeated first grade and became a B-average student.
Now, Nariah attends Brookstone Schools in Charlotte. She’s thriving.
“She’s not sitting in the back of the classroom,” Nunn told CJ. “She’s not holding her head down. She’s not saying that she’s not as smart as her classmates. She’s sitting there, she’s raising her hands, she’s asking questions, she’s moving forward to be in front and be a leader.”
But a new lawsuit against Opportunity Scholarships has made Nariah’s future uncertain. The program already faced a legal challenge in 2015. In Hart v. State, a Wake County Superior Court ruled the scholarships unconstitutional. The state Supreme Court later overturned the decision. Four Republican judges voted in favor of Opportunity Scholarships. Three Democrats voted against them.
Now, another lawsuit against the program is pending. The N.C. Association of Educators is again gunning for the program, calling it unconstitutional and insisting it lacks state oversight.
The vouchers “siphon money from public schools already strapped for cash,” NCAE President Tamika Walker Kelly said.
The case could end up, again, at the consideration of the state’s highest court.
If Democrats are in total control, Nariah almost certainly would be forced to return to a public school.
Newby supported Opportunity Scholarships back in 2015. He is the only member of the four-vote Hart majority remaining on the court today. The most senior of all the current justices, Newby says his judicial responsibility is to the Constitution and the original text of the law.
“If somebody says judicial philosophy doesn’t matter, boy, it does,” Newby said during an August interview with the N.C. FreeEnterprise Foundation. “It’s the absolute foundation for what judges actually do.”
Beasley, the first African American chief justice in North Carolina history, opposed Opportunity Scholarships in 2015.
“Given North Carolina’s history of public education and the State’s continued efforts to address shortcomings to deliver on its constitutional mandate, the General Assembly’s decision to pursue vouchers at this time and in this way is vexing,” Beasley wrote in a Hart v. State dissent.
Besides, Beasley wrote, extra expenses at private schools — transportation, tuition, books, uniforms — make the “opportunity” advertised by school vouchers a “cruel illusion.” Offering scholarships to low-income and minority families like the Nunns only exacerbates educational, class, and racial divides, Beasley said, pointing to “systemic and cultural adjustments” as the real necessity.
Janet Nunn doesn’t see things that way.
What do you think of the lawsuit against Opportunity Scholarships? CJ asked her. Nunn went through the first legal battle back in 2015. The idea of fighting it again makes her cry.
“It’s ridiculous,” she said, holding back tears. “We live in a country that we say is free. We’re supposed to be in pursuit of happiness and freedom, and that pursuit is in education as well.
“I don’t see what’s unconstitutional,” she said of the current challenge to the program. “Because of low income? Is that what makes it unconstitutional? I want to give my child an opportunity, and that’s exactly what this scholarship is.”
All Supreme Court candidates participated in a Sept. 10 forum moderated by the John Locke Foundation’s Donna Martinez, who asked candidates to speak to the new legal challenge against the Opportunity Scholarships.
“It would be really inappropriate for us to have a comment on that,” Beasley said.
The cards are stacked against the program, Guze said. Justices Robin Hudson and Sam Ervin IV were on the court during the last lawsuit against Opportunity Scholarships. They joined Beasley in voting against the program. Both Hudson and Ervin will hold seats on the Supreme Court until 2022 and will preside if the current lawsuit against Opportunity Scholarships is heard. Depending on the election and timing Beasley may, too.
Ideology and party commitments may factor into the judges’ decisions about the program, Guze said. But voters should proceed on the assumption that all Supreme Court justices, regardless of party affiliation, are men and women of integrity, he said.
“I don’t think it’s beyond the realm of possibility that one or more Democrats vote to uphold the program this time.”
Redistricting lawsuits, which will stir more drama after the 2020 census is complete, are likely to come before the high court. Legislative and congressional gerrymandering was a major issue in 2019, when a three-judge Superior Court panel threw out the state’s districts in two separate cases, calling them an extreme gerrymander. Redraw the maps, judges said. The legislature did, but the result made Republican and Democratic activists angry. Republicans didn’t agree with the judges’ order to redraw the maps. Democrats were disappointed the panel didn’t assign their pick, a professor from California, to redraw General Assembly districts.
The process was fair, said John Hood, political analyst, John Locke Foundation chairman, and John William Pope Foundation president. Hood advocates legislation to adopt a more transparent redistricting process. So far, no such law has passed the General Assembly.
In 2021, lawmakers will restart the mandatory redistricting process. Regardless of what party is in power — Democrats may retake the legislative majority Republicans have held for a decade — more gerrymandering lawsuits are imminent.
Republicans have criticized Democrats for using judicial activism to regain strongholds in the General Assembly. Democratic groups bankrolled the 2018 lawsuits challenging legislative and congressional redistricting.
Senate President Pro Tem Phil Berger, R-Rockingham, said judges used a “flawed approach to redistricting law” and questioned their constitutional reasoning. Republicans didn’t appeal the decision because of a looming deadline for candidate filing.
A 2019 U.S. Supreme Court ruling in Rucho v. Common Cause left all political gerrymandering cases up to the states. Such battles start in North Carolina’s lower courts and end at its highest one. If Democrats control every seat on the Supreme Court after the election, the party will either control or exercise a judicial veto over all subsequent voter maps.
Notably, Justice Anita Earls, who won her seat on the high court in 2018, is the founder and former executive director of the Southern Coalition for Social Justice. SCSJ — a leftist organization — was active in redistricting lawsuits against Republicans in 2018. The organization was also instrumental in Holmes v. Moore, the case that blocked North Carolina’s voter ID law.
Earls helped get North Carolina’s 2013 voter ID law overturned. She remains publicly connected to SCSJ, appearing on an August panel alongside Allison Riggs, SCSJ’s general counsel for voting rights.
In September, state voter ID, hotly contested by Democrats, became a critical issue for the Supreme Court.
In 2018, North Carolinians voted in favor of constitutional amendments requiring voter ID and lowering the cap on state income tax rates. The NAACP sued the legislature, saying the amendments never should have gone before voters. The lawsuit argued the General Assembly that placed the amendments on the ballot was illegitimate because of gerrymandering. A Superior Court sided with the plaintiffs and voided both amendments.
On Sept. 15, the Court of Appeals overturned the lower court’s ruling. The NAACP’s argument doesn’t apply, two of the three appellate judges said. Voter ID remains part of the state’s constitution, as amended by voters.
But hours after the Appeals Court announced its decision, the NAACP said it would take its case before the Supreme Court.
“Voter ID just became the most important issue in the N.C. Supreme Court campaigns,” tweeted Brent Woodcox, an attorney for legislative Republicans.
Separation of powers
The N.C. Constitution is clear that judicial, legislative, and executive powers are separate. But the line between the three is often muddled by judicial interpretation.
In the 2017 case Cooper v. Berger, Gov. Roy Cooper sued the legislature over its attempt to form a bipartisan election board. By forcing the governor to appoint four Republicans and four Democrats to the board, legislators stripped Cooper of his executive powers, the governor argued.
A three-judge Superior Court panel rejected Cooper’s arguments. But when the case arrived at the Supreme Court, the Democratic majority ruled in favor of Cooper. The legislature limited Cooper’s control over “the views and priorities” of the bipartisan elections board by requiring that the governor choose members who would block Cooper’s own policy preferences, the judges wrote in their opinion.
Newby dissented, along with the other two Republicans who served on the court at the time.
The court violated the constitutional separation-of-powers principle it claimed to protect in the case, Newby wrote in his dissent.
“The Court strips the General Assembly of its historic, constitutionally prescribed authority to make the laws and creates a novel and sweeping constitutional power in the office of the Governor — the authority to implement personal policy preferences,” Newby wrote.
During interviews Newby, Berger, and Barringer have frequently extolled the constitutional separation of powers. Barringer, who spent six years in the state legislature, says her experience in making laws helped prepare her for the judiciary.
“It is imperative that we have judges who refrain from legislating from the bench,” Barringer said Sept. 10.
While the Supreme Court wields “super legislative powers,” that doesn’t mean it has to, Guze said. Certain judges have “renounced such powers and limited themselves to their constitutionally permissible role of applying the state’s law and the state constitution as written.”
Some will, regardless of party, resist the urge to put policy and political preferences first, Guze said.
Appeals Court Judge Lucy Inman, a Democratic contender for Newby’s vacated Supreme Court seat, showed this ability to put party affiliation aside in 2019. In another case called Cooper v. Berger, the governor challenged the General Assembly’s control over federal block grant funds. A lower court affirmed the legislature’s authority to use the money as it saw fit. Inman, along with two other appellate judges, upheld the ruling.
Inman herself wrote the opinion, which came down hard on Cooper’s attempt to dictate use of state money without legislative input.
“This court is an error-correcting court, not a law-making court,” Inman wrote. “The North Carolina Constitution plainly provides that no money shall be drawn from the State treasury but in consequence of appropriations made by law.”
North Carolinians are lucky, Guze said, since members of the state Supreme Court are elected, not appointed for life. If judges misuse power or legislate from the bench, the best recourse is found at the ballot box, Guze said.
“My advice to voters is this: When you go to the polls, or when you fill out your absentee ballots, remember the N.C. Supreme Court justices you choose will be able to exercise more power over you and your family than any other candidates on the ballot. So, choose wisely!”