The N.C. Supreme Court will look much different in 2023. Voters decided in November to oust one incumbent Democrat from the state’s highest court. Voters also replaced a retiring Democrat with a Republican. The end result is a shift in the court’s partisan control.
After six years of dominance by Democrats, including a 4-3 Democratic court for the past two years, the N.C. Supreme Court that begins work in January will feature a 5-2 Republican majority.
That partisan shift could affect major cases involving election maps, voting rules, school funding, and parental school choice.
The one Supreme Court incumbent on the 2022 ballot, Democrat Sam “Jimmy” Ervin IV, was seeking a second eight-year term. Voters instead preferred Republican Trey Allen, general counsel for the N.C. Administrative Office of the Courts. Allen beat Ervin, 52% to 48%, in the Nov. 8 election.
The second Supreme Court contest pitted two N.C. Court of Appeals judges who hoped to succeed retiring Democratic Justice Robin Hudson. Hudson would have been able to serve little more than one year of a new eight-year term before hitting the state’s mandatory retirement age of 72.
By a 52% to 48% margin, Republican Appeals Court Judge Richard Dietz defeated Democratic Judge Lucy Inman to take Hudson’s seat. Dietz had two years left in his Appeals Court term. Gov. Roy Cooper will appoint a replacement.
Republicans also swept all four Appeals Court seats on the Nov. 8 ballot, with winning margins of 52% to 48% or better. If Cooper appoints a Democrat to replace Dietz, Republicans will end up with a net gain of one seat on the 15-member Appeals Court. The court will have 11 Republican judges and four Democrats.
It’s the second straight election cycle in which Republicans won every statewide N.C. judicial contest. In 2020 GOP candidates won three Supreme Court races and five seats on the Court of Appeals.
The new partisan composition of the state’s highest court could come into play with one of the first cases up for discussion in the new year.
The outgoing court issued an Oct 6 order in a lawsuit titled Community Success Initiative v. Moore. It’s a case that could determine whether felons who have completed active prison time will be able to vote in future N.C. elections.
Thanks to a 2-1 Appeals Court ruling, with two Democratic judges outvoting a Republican colleague, felons on probation, parole, or post-release supervision were able to register and vote in the latest general election.
Advocates for felon voting argue that a state law from the 1970s sets up unconstitutional barriers for felons to regain voting rights. Republican legislators responded in court filings that the state constitution itself blocks felons from voting.
The Oct. 6 order said justices “will calendar the matter for hearing at the first regularly scheduled session of Court to be held in 2023.”
Felon voting is just one issue that could set up clashes between the state Supreme Court’s Democratic and Republican justices.
The Republican-led General Assembly will redraw the state’s election map for 14 seats in the U.S. House of Representatives. A court-imposed map used only for 2022 produced a 7-7 split between the two major parties. Pundits predict that GOP lawmakers will produce a new map that’s likely to favor at least a 9-5 Republican-friendly split in 2024.
With the outgoing state Supreme Court’s Dec. 16 decision in Harper v. Hall, lawmakers might also be required to redraw their N.C. Senate election map. Legal challenges involving any new statewide election maps could head back to the state Supreme Court in 2023.
Justices might also take another crack at photo identification requirements for state voters. On Dec. 16 the outgoing court used the Holmes v. Moore case to strike down North Carolina’s 2018 voter ID law. It’s possible a voter ID dispute could return to the state’s highest court for further action in 2023.
It’s also possible that justices could be asked to revisit N.C. NAACP v. Moore. In that case, the court split 4-3 along party lines in August to rule that a trial judge could throw out two state constitutional amendments. One of the voter-approved amendments from 2018 would enshrine a voter ID requirement in the state’s governing document. The other would lower an existing constitutional cap on state income tax rates.
Once a Wake County Superior Court judge issues his decision in that case, it would be subject to an appeal back through the court system.
In addition to election-related cases, the state Supreme Court might have new opportunities to address education issues that have produced past party-line divisions.
A trial judge is scheduled to take up the Leandro education funding lawsuit again. A split 4-3 Supreme Court ordered the judge to determine how much of his earlier $785 million Leandro spending order should proceed. High-court Democrats also ordered the judge to force state officials to transfer Leandro-related funds from the N.C. treasury without input from the General Assembly.
It’s likely that whatever order emerges from the Leandro court will face an appeal back to state Supreme Court justices.
Seven years have passed since the state’s highest court ruled, in a party-line split favoring Republicans, that North Carolina’s Opportunity Scholarship parental school choice program complied with the N.C. Constitution.
An ongoing suit, Kelly v. State, challenges Opportunity Scholarships again. That case heads next to a three-judge Superior Court panel. But it’s possible that the state’s highest court could have a chance to consider the scholarships again in 2023.
Past experience suggests that justices’ party affiliations won’t affect every decision. Even 2022, which featured a relatively high number of partisan divisions by historical standards, produced a majority of rulings in which justices agreed unanimously.
But it’s clear that the court’s new 5-2 Republican majority has a chance to make a difference in some of North Carolina’s highest-profile legal disputes.