One key consequence of the 2016 elections in North Carolina was that the state’s court system drew a great deal of attention. You can expect that attention to continue, and perhaps to lead to constructive change, during the coming year.
Four election stories had the effect of turning the political spotlight to the judicial branch. Democrat Mike Morgan outpolled Bob Edmunds, an incumbent Republican on the North Carolina Supreme Court, thus shifting the partisan balance on the state’s officially nonpartisan high court from a 4-3 Republican edge to a Democratic one. At the same time, Republican candidates won all of the elections for Court of Appeals, making that 15-member body strongly Republican.
With Democrat Roy Cooper narrowly defeating GOP Gov. Pat McCrory and Republicans retaining their supermajorities in the General Assembly, the partisan atmospherics grew stormy. Republican lawmakers concluded they had inadvertently produced Morgan’s victory by the following convoluted process: 1) establishing a “retention election” for the Edmunds seat in 2016, rather than a truly competitive one; 2) then losing the subsequent court case about it; 3) then watching the Supreme Court race revert to the previous “nonpartisan” system and not intervening to put party labels back on the ballot, as they had for the Court of Appeals races; and 4) then watching Morgan’s name get placed first on the ballot, the position GOP candidates held in other races, thus leading Republican voters to think they were choosing the GOP candidate when they voted for him.
If you look at vote totals across conservative-leaning counties, you can see why this explanation is the most plausible one. Edmunds got many fewer votes in those counties than did comparatively obscure Republican candidates for appeals court. It strains credulity to assert these voters made such careful distinctions among the Republican judges.
But what was the proper remedy? A few Republicans toyed with the notion of creating two more openings on the Supreme Court and allowing outgoing Gov. Pat McCrory to fill them, with subsequent partisan elections to be held in 2018. But McCrory himself and most other Republicans never thought this was a defensible remedy for the errors that led to Morgan’s win.
What happened instead was that lawmakers resurrected an old idea Roy Cooper himself had proposed while serving in the North Carolina Senate. Both the state and federal appeals courts handle most of their cases as three-judge panels. But the federal courts also occasionally hear cases “en banc,” meaning before all the judges of a circuit. During a post-election special session, the North Carolina legislature authorized a similar process for the state appeals court.
Why do this? Because Democrats are about to attempt to re-litigate every court challenge they’ve made against Republican-enacted policies (the ones they didn’t already win before a Republican-majority Supreme Court, I mean). An en banc hearing before the full Court of Appeals may add another step to the process.
Whatever you think of this change, it does signify that Republican lawmakers are willing to consider changes in the structure and operation of the state courts. Well, they are about to get many more proposals for change. The North Carolina Commission on the Administration of Law and Justice, a panel created by Chief Justice Mark Martin in 2015, will publish its final report in 2017.
I serve on the commission. Our findings and recommendations address every aspect of the justice system in North Carolina, from civil litigation and criminal procedure to technology upgrades and judicial selection. During our work, we found that while most North Carolinians have confidence in our state courts and the judges who preside in them, they are also concerned about the time and money it takes to litigate cases, the independence of judges, and the treatment of juveniles, racial minorities, and low-income people, especially those who represent themselves in judicial proceedings.
The commission’s report will offer legislative leaders and the new Cooper administration an opportunity to work together on important issues of mutual interest. Here’s hoping they seize it.
John Hood is chairman of the John Locke Foundation and appears on the talk show “NC SPIN.” You can follow him @JohnHoodNC.