Opinion: Daily Journal

Partisan ruling in constitutional fight would produce ‘not a good’ perception

Former N.C. Appeals Court Judge Edward Greene appears Nov. 28, 2017, on Spectrum News' "Capital Tonight."
Former N.C. Appeals Court Judge Edward Greene appears Nov. 28, 2017, on Spectrum News' "Capital Tonight."

At least one veteran N.C. jurist expects a ruling other than 4-3 when the state Supreme Court decides a case pitting the Democratic governor against the Republican-led General Assembly.

“They’re going to look to try to resolve this so it doesn’t come out 4-3 with party-affiliated votes,” said Edward Greene, an appellate attorney who served for 16 years as a judge on the N.C. Court of Appeals before retiring in 2002. “They realize that the perception is not a good one to come out that way.”

Greene offered these comments last week when he appeared alongside this columnist as panelists on Spectrum News’ “Capital Tonight.” The program focused on the upcoming Supreme Court ruling in Cooper v. Berger.

Gov. Roy Cooper wants the seven-member Supreme Court to rule that the legislature, including Senate leader Phil Berger, overstepped its constitutional bounds earlier this year. Legislators enacted a law merging state elections and ethics agencies under a new eight-member board. The bipartisan board would feature four Democrats and four Republicans. Cooper would appoint all eight members from lists provided by the two major political parties.

Under prior state law, the State Board of Elections consisted of five members. Three of the five members represented the political party of the sitting governor. Cooper’s lawyers have argued that the new law violates his constitutional power to exercise control over the elections agency.

The governor has refused to make any appointments to the new board during the ongoing legal dispute. State elections staffers have operated without board oversight throughout this year. Unless the Supreme Court resolves the dispute soon, North Carolina could enter 2018 without a board constituted to deal with statewide election policy decisions and complaints.

A three-judge Superior Court panel ruled against Cooper in October, but the governor and his supporters have expressed confidence that the Supreme Court will reverse course.

Such confidence could be tied to the fact that the state’s highest court features four registered Democrats and three Republicans. Syndicated columnist Colin Campbell of the Insider State Government News Service recently suggested as much, labeling Cooper’s view of the judiciary “incredibly cynical.” “He’s suggesting that judges will blindly follow their party regardless of what the laws, constitution, and legal precedent say,” Campbell wrote. (Upon publication, Campbell later tweeted, a Cooper spokesman called him to say that the cited section of his column was “insane.”)

If justices split 4-3 on a partisan basis in Cooper v. Berger, it would represent a relatively rare occurrence. The court has issued 4-3 rulings just six times in 51 cases this year. Only two of the cases pitted Democrats against Republicans. In contrast, 42 rulings — four out of every five — have been unanimous, and most disagreements have defied pure partisan analysis.

“The bottom line is that there are no statistics that show party affiliation makes a difference in the North Carolina Supreme Court,” Greene said on “Capital Tonight.”

He also cited his experience with the state’s second-highest court, which had judges affiliated with both major parties. Greene served as a Democrat, winning his last re-election bid in a 1998 contest against Paul “Skip” Stam, who later served as Republican caucus leader in the N.C. House of Representatives and House speaker pro tem.

“I can attest that I never saw a vote that was taken where I thought that just because someone was a Democrat or just because someone was a Republican they voted a certain way,” Greene said of his years on the bench.

This year’s Supreme Court rulings tend to support Greene’s description of appellate court business.

Justice Michael Morgan’s 2016 election switched the Supreme Court’s partisan makeup from 4-3 favoring Republicans to 4-3 favoring Democrats. Yet just two of the nine splits in court rulings this year featured the four Democrats prevailing over the three Republicans.

The Democrat Morgan joined the three Republican justices in the majority for the year’s first 4-3 ruling. All three Republicans have joined the majority in three other 2017 cases that split the court’s Democrats. Seven of the year’s nine split rulings have featured at least one Republican in the majority.

The Supreme Court is scheduled to release another batch of opinions Friday. It’s unclear whether they’ll have anything to say about Cooper v. Berger. If not, we’ll at least see more clues about the constantly shifting coalitions within the court that help resolve the state’s thorniest legal and constitutional issues.

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