Opinion: Daily Journal

High court rejects role as Democratic backstop

N.C. Supreme Court justices meet in an Aug. 17, 2018, conference. Photo posted at N.C. Judicial Branch Twitter page.
N.C. Supreme Court justices meet in an Aug. 17, 2018, conference. Photo posted at N.C. Judicial Branch Twitter page.

Much of the conversation surrounding this year’s N.C. Supreme Court election focuses on the potential impact for the court’s partisan makeup.

That’s understandable. Party labels are returning to this year’s race. Neither party holds a large advantage within the current Supreme Court membership. The outcome of this year’s election could shift the partisan balance.

But last week’s Supreme Court decisions on proposed constitutional amendments send a clear message: Politicians should not rely on the state’s highest court to issue consistently partisan rulings.

Since Democrat Michael Morgan won the last Supreme Court election in 2016, the court has operated with four registered Democrats and three Republicans. Morgan’s win had flipped the partisan balance from 4-3 Republican to 4-3 Democrat.

This partisan realignment has not created a seismic shift in the court’s rulings. In 123 opinions handed down since Morgan joined the court, the Democrats have formed a four-vote majority against three dissenting Republicans just three times. (In one other case, all seven justices agreed with the result in a particular case, but the Republicans wrote a concurring opinion since they disagreed with their Democratic colleagues on the legal basis for the decision.)

This court has issued fewer 4-3 rulings split along party lines (three) than 4-3 rulings in other configurations (seven). In five of the remaining 4-3 splits, all three Republicans joined a single Democrat to form a majority for a particular case.

An observer searching for partisan bias will point immediately to the January ruling in Cooper v. Berger. That case pitted the Democratic Gov. Roy Cooper against Senate leader Phil Berger and other Republican legislative leaders. The court’s four Democrats backed the governor in his bid to block a newly created state board overseeing state elections and ethics enforcement. (An amended version of that board survived later court scrutiny.)

But that ruling stands in stark contrast to much of the rest of the court’s work. Rather than signal a new era of partisanship among the justices, Cooper v. Berger marked the only 4-3 partisan split among 65 opinions handed down so far this year.

In all three 4-3 splits emerging since Cooper v. Berger, the Republicans formed majorities with Democrat Sam Ervin IV. Why is that significant? Ervin authored the Cooper v. Berger majority opinion that divided Democratic and Republican justices. That ruling doesn’t appear to have hurt his ability to work with Republican colleagues.

The high court’s approach to the recent battle over new constitutional amendments fits well with the established pattern of avoiding overt partisanship.

The Republican-led General Assembly has approved six constitutional amendments for the November ballot. Democratic activists already have launched a campaign opposing all six. Meanwhile, lawsuits have challenged four of those amendments. (Only amendments targeting hunting and fishing and crime victims’ rights emerged completely unscathed by the legal process.)

A three-member Superior Court panel consisting of one Democrat, one Republican, and one unaffiliated judge considered the legal challenges. That panel rejected attempts to block a voter ID proposal and an income tax cap plan from the ballot. But the three judges agreed with Cooper that two other amendments contained misleading language.

Lawmakers reconvened shortly after the three-judge panel’s initial ruling. The General Assembly rewrote both disputed amendments. Both now more clearly describe the legislature’s goals. If approved, voters would shift power away from the governor and to lawmakers. That shift would change the processes for filling judicial vacancies and appointing members of the state elections board.

Here’s where the Supreme Court enters the story.

The state NAACP, which opposed all four disputed amendments, asked the high court to intervene to block all four from the ballot. Meanwhile, Cooper asked justices to block the two rewritten amendments. He based that request on his victory in the dispute over the original ballot language.

Justices refused both requests. Had the court’s Democratic justices wanted to enter the partisan fray, they could have issued rulings blocking two or four amendments. Instead a united court followed the dictates of the legal process.

While deferring action on the NAACP’s request, the justices told Cooper’s lawyers it would be inappropriate for the state’s top appellate court to rule on amendments that never had been considered in a trial-court setting.

Even if a trial court had rejected earlier versions of those same amendments. Even if everyone knew the Supreme Court eventually would have to act in the case. Even if a Supreme Court decision would help all parties deal with a tight electoral timeline.

So Cooper filed a new suit against the revised amendments. The competing parties ended up in front of the same three-judge Superior Court panel. This time the judges agreed unanimously that the new amendments contained clear enough language that voters would be able to make an informed decision.

Cooper appealed, as expected, to the state Supreme Court. Only then did justices decide to take action. The high court handed down a pair of brief orders. One rejected the NAACP’s arguments. The second affirmed the lower court’s ruling on the judicial vacancy and elections board amendments.

Without comment and without any documented dissent, the justices endorsed the work of their Superior Court colleagues. By doing so, they produced a result unfavorable to partisan Democrats.

Barring other legal action, all six amendments will appear on the November ballot. Cooper and fellow Democrats will have to take their complaints about those amendments outside the courtroom and into the arena of political campaigns.

And the state Supreme Court can go back to considering legal matters. The record suggests justices prefer that arrangement to playing partisan politics.

Mitch Kokai is senior political analyst for the John Locke Foundation.