Opinion: Daily Journal

Restore Real Judicial Elections

Liberal groups in and outside the state seem to be spending sleepless nights worried about the fate of judicial-election changes North Carolina adopted in 2002. The General Assembly should save our liberal friends any additional insomnia by immediately ending government funding of judicial campaigns and returning judicial elections to their original partisan status.

These policies were themselves the result of partisan interests, although not everyone who supports them has a partisan intent. During the 1990s and early 2000s, the then-majority Democratic Party became increasingly frustrated at the success of Republican candidates for Supreme Court and Court of Appeals. Having previously resisted calls for change, Democratic lawmakers changed their minds and enacted the Judicial Campaign Reform Act in 2002.

Both government campaign subsidies and nonpartisan elections have proved to be highly problematic over the past decade. To start with, the subsidy scheme was based on two revenue sources: a check-off on state income tax returns and a $50 fee on attorneys practicing law in the state. To discourage judicial candidates from running private campaigns outside of the system, it included “rescue funds” that provided additional government subsidy for candidates whose opponents declined to participate or who benefitted from independent-expenditure groups.

Much of the architecture of the 2002 law were patently unconstitutional, as subsequent state and federal court decisions have confirmed. North Carolina attorneys cannot be compelled to fund the campaigns of judicial candidates with whom they may disagree. After a lawsuit by the N.C. Institute for Constitutional Law, the state was ordered to change the system to allow attorneys to designate their $50 fee to fund voter guides rather than judicial campaigns.

Meanwhile, the “rescue funds” provision became impossible to enforce after federal courts struck down a similar provision in Arizona. Far from excluding special-interest money from judicial elections, North Carolina’s new system just pushed the spending out of the spotlight of reportable campaign donations and into the shadows of independent expenditure. Furthermore, there have been election cycles in the past when state officials had to bail out the judicial-election fund with general tax revenues, thus violating their original promise not to compel general taxpayers to fund the system.

As for nonpartisan elections, they aren’t unconstitutional – but they are an unworkable mess. Robbed of the information contained in a party label, and largely disinclined to read lengthy voter guides distributed by the state, most voters remain largely uninformed about statewide judicial candidates. Some make choices on the basis of such dubious factors as guesswork or a vague sense of name recognition. Others choose not to vote at all. In 2012, more than a million North Carolina voters, or nearly a quarter of those who turned out to vote for president and governor, indicated no preference for statewide judicial elections.

All these defects were predictable – and predicted – many years ago. But key Democratic leaders were primarily interested in arresting Republican momentum in judicial elections, not protecting individual rights or maximizing voter participation in judicial races. And liberal groups saw North Carolina as a critical beachhead in their national fight for campaign-finance reform.

North Carolina has indeed become an important case study for political scientists studying judicial reforms. But contrary to liberal expectations, the resulting academic research has not been helpful to them. For example, a 2011 study in the journal Politics and Policy confirmed that voter participation dropped off significantly after the passage of North Carolina’s judicial-campaign changes. Specifically, the authors found that an average of about 7.5 percent of voters for president or other high-ballot races declined to cast votes for appellate judges before the implementation of the Judicial Campaign Reform Act. After implementation, the average drop-off percentage rose to 30 percent. The distribution of voter guides appeared to have no effect on voter participation. The authors also found that North Carolina voters who remained interested in judicial elections after the so-called reforms continued to try to cast partisan votes and preferred to have party labels returned to the ballot.

Two other scholars confirmed in a 2012 paper that voters in the two states they studied, North Carolina and Minnesota, continue to put a high value on partisan information to make decisions about judicial candidates. I also recently read a study by a Virginia Tech grad student who used the North Carolina case to see if there was any detectable affect of nonpartisan judicial elections on subsequent party-line judicial decisions. “I find no evidence to suggest that the nonpartisan system was associated with justices behaving in more ‘nonpartisan’ ways,” he concluded, “If there was any change, it was that during the nonpartisan era, the behavior of the justices was more in line with what would be expected of partisans than it had been in the partisan era.”

The liberal experiment in judicial-campaign reform has failed. The Democratic experiment in using judicial reform as a tool for partisan advantage has also largely failed. The case for repeal is not the result of a conspiracy. It is empirical.

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Hood is president of the John Locke Foundation and author of Our Best Foot Forward: An Investment Strategy for North Carolina’s Economic Recovery, published by JLF in 2012.