It’s easy to mistake Chris Shella for a politician. On a cool spring Saturday morning in March, the Durham attorney hit Club Boulevard in a pinstriped suit to go door-to-door canvasing for votes.
Shella is a natural campaigner. If a wary resident opens the door an inch, Shella has him on the porch talking about clean government and building a strong community. Shella is quick with a joke, making fun of the cracking, discolored wing tips he wears when he pounds the pavement. At every door, he leaves a business card with his name and a link to a campaign Web site on which he touts a Facebook page and endorsements from prominent local officials.
Shella looks and acts a lot like your average first-time N.C. General Assembly hopeful. He’s young, intelligent and personable. But he’s not a politician, at least not exactly. Shella wants to be a Durham Superior Court judge, and if he’s elected, the people whose doors he knocks on could one day stand before him for sentencing.
N.C. residents who hit the voting booth this May or November will likely be thinking about big names like U.S. Sen. Richard Burr and big issues like health care and the economy. But once those voters select a candidate for the prominent federal and state elections, they’ll be faced with a stupefying array of local and statewide offices, from tax assessor to commissioner. And perhaps the most inscrutable of all will be the long list of nonpartisanmeaning they aren’t listed by political partycandidates for district, superior, state appellate and state supreme court.
Though most voters know next to nothing about these candidatesnot even their party affiliationsthe winning judges will go on to decide cases that could affect the state more than any initiative in the Congress or the General Assembly. Judges at the district and superior level have enormous direct power over people in their districts, hearing child custody, divorce and criminal cases and more. These candidates will decide matters of life and death, crime and punishment. But who are they? And is the public well-informed enough about the judicial system to elect them?
Retired N.C. Supreme Court Justice Bob Orr laughs when he remembers his first day in the state’s highest courtroom. “This security guard came up to me and said, ‘Hey, I voted for you,’” Orr said. “I said ‘Thanks,’ and he said, ‘Yeah, Bobby Orr was the greatest hockey player who ever lived.’ The only reason (the security guard) voted for me was my name.”
North Carolinians have been electing judges since the mid-1800s. Judicial elections were partisan for most of that time, though Democrats won most every office between the Civil War and the Reagan Revolution.
Then, in 2002, the General Assembly passed the Judicial Campaign Reform Act. Its purpose was to make all such elections nonpartisan and to provide optional public campaign financing for appellate and supreme court races. The move was pushed by progressive clean-government activists in the state and drew national attention from judicial organizations and political junkies. The state’s system now merits a mention in many undergraduate state government textbooks. U.S. Sen. John McCain even dropped by in 2003 to encourage residents to support the reform.
The reform was passed largely to circumvent the growing ugliness of partisan judicial elections. In many states, partisan elections for high courts have turned into the kind of big money circuses of ads and attacks that we tend to associate with gubernatorial or presidential races. And campaign donors can influence judicial decisions. In 2008, for example, the U.S. Supreme Court ruled that a West Virginia Supreme Court justice should have recused himself from a case in which he ruled in favor of a coal company whose executive had spent more than $3 million on that justice’s election campaign. The justice, to no one’s surprise, had ruled in favor of his donor.
Damon Circosta is the executive director of the N.C. Center for Voter Education, an organization that was instrumental in formulating and advocating for the reform. He says the system is working well.
“The voters are almost unanimous in wanting an election system” for judges, Circosta said. And in the new nonpartisan, publicly financed system, “you get a greater diversity of candidates and a level playing field.”
Shella sides squarely with Circosta on the question of judicial elections. “I don’t want someone to walk into a courtroom like it’s a Star Chamber,” Shella said. “It’s back-room politics if you don’t do elections. You have to trust the American voter.”
Indeed, polls show that the public supports electing judges, but the results aren’t as clear-cut as Circosta contends. A November poll conducted by Elon University found that more than 70 percent of North Carolinians surveyed think we should elect judges. However, the Elon poll found the cognitive dissonance that crops up in polling about poorly understood subjects. Ninety percent of North Carolinians said they were “not at all familiar” or only “somewhat familiar” with our current system of judicial selection. The poll also reported broad support for partisan judicial elections, yet it also found that most respondents think partisanship shouldn’t play a role in judicial decision making.
There is plenty of other evidence that voters are uninformed about judicial candidates. In 2008, for example, 1.2 million fewer people voted in the N.C. Supreme Court election than cast a ballot for president. These voters simply didn’t want to vote for any candidate for the state’s highest court.
A study by the UNC-Chapel Hill Program on Public Life showed a steady decline in votes for judicial candidates since the 2002 reform. This is understandable: Party identification, though generally meaningless in terms of a judge’s day-to-day job, at least tells people something about a candidate.
“They’ve been drinking the Kool-Aid,” Orr said of Circosta and other advocates for the current nonpartisan system. “We should not elect judges.”
Orr isn’t alone. Kenneth Broun, a professor at the UNC-Chapel Hill School of Law, calls the state’s system of selecting judges “deeply flawed.”
“The whole system lends itself to politics that are not necessarily related to the competence of the trial court judge,” Broun said.
Former U.S. Supreme Court Justice Sandra Day O’Connor has also attacked the state’s elections. She lobbied against the current system in Charlotte last year and wrote an op-ed in March arguing that the state should cease judicial elections.
Even the N.C. Bar Association has joined the fray, lobbying heavily for the General Assembly to overturn the current system and replace it with nonpartisan “merit selection.” In the March edition of N.C. Lawyer, Bar Association President John Wester lashed out at the current system.
“No data I have seen suggests that, where the election of judges is concerned, an informed electorate is going to the polls,” Wester wrote.
Most states use various forms of “merit” appointment systems to select judges. Merit systems change from state to state, but most rely on a panel of experts to make binding recommendations to governors or legislatures on judicial appointments.
Aside from the lack of knowledge about specific candidates, critics also contend that the publicly financed system isn’t as public as it seems. Candidates still need to raise tens of thousands of dollars to qualify for public financing, and many of them opt out of public money. According to data collected by the UNC-CH Program on Public Life, in 2006 incumbent N.C. Supreme Court Justice Mark Martin spent nearly $500,000 while trouncing his less well-funded opponent. Public funding of N.C. Supreme Court races cannot exceed $240,000 in most cases.
And with the recent U.S. Supreme Court decision Citizens United, which opened the floodgates to corporate cash in elections, the numbers will likely continue to rise. In a recent Alabama Supreme Court election, more than $14 million was spent on one seat.
Despite a recent resurgence of interest in reforming the system, it’s unlikely to change. Orr complains that the 2002 reform tapped out any political will at further reform efforts. Program on Public Life Director Ferrel Guillory agrees.
“Once people get a right to vote for something, it’s very hard to take it away from them,” Guillory said. “I hate to say this, but it’s likely to change only when we get a big scandal or embarrassment.”
Correction (April 12, 2010): This story originally misstated the source of incumbent N.C. Supreme Court Justice Sarah Parker’s campaign funds; she did use public money in her 2006 campaign.