If North Carolina’s U.S. Senate race—a neck-and-neck contest that could see the election of the state’s first Black senator or the ascendance of a gun-slinging, abortion-rights-denying, MAGA-aligned congressman—has stirred so little buzz compared to other contests that national news outlets have labeled it a “sleeper race,” the four races for the NC Court of Appeals are straight up comatose.
The eight candidates vying for state appellate seats haven’t aired many ads, nor have they received much attention from the press; as in most years, media coverage surrounding the elections has amounted to little beyond candidate questionnaires, with contenders offering nearly identical responses about their judicial philosophies and camouflaging any significant differences in legalese.
And while it’s always hard to get voters excited about judicial elections, this year’s midterms—which will likely be decided by the public’s stances on hot-button issues like abortion, gun safety reform, and economic policy—have elicited a particularly low amount of enthusiasm for appellate candidates, who usually do not disclose where they stand on such matters and who, compared to the contenders for the state’s highest court, seem to be running for less consequential positions.
But while the NC Supreme Court races are certainly momentous (see our story on page 6 for more on that), the state’s oft-overlooked appellate elections also carry weight.
The NC Court of Appeals, which determines whether trial courts have correctly applied the law, is perhaps best known for pushing cases down the line.
And its error-correcting role is an important one. In 2020, for instance, after hearing a case that had been appealed from a Wake County district court, state appellate judges ruled 2-1 to allow people in same-sex relationships to obtain emergency restraining orders against abusive partners—a protection that the district court had denied—and effectively passed the case off to the state supreme court, which voted to uphold the appellate court’s decision.
But most of the time, the appellate court, which hears around 60 cases every two weeks, is actually the end of the line.
“A very high percentage of cases that are appealed from lower courts end in the court of appeals, meaning that the court of appeals makes the final decision,” says Donald Beskind, a trial lawyer and Duke University law professor. “Many important matters never reach the [state] supreme court.”
When appellate judges—who serve in rotating panels of three—rule unanimously, it almost always brings an end to a case, Beskind continues, except in rare situations when the state supreme court wants input.
In the past year, appellate judges have had the final say on cases ranging from education to rezoning and environmental justice, issuing decisions that have allowed students to sue the UNC system over fees they paid for on-campus services that were closed during the pandemic, prevented the city of Charlotte from using a rezoning dispute as a precedent in future court proceedings, and granted state legislators the authority to make it nearly impossible for people to sue hog farms for nuisance.
These decisions may sound boring, but important ones often do.
So while the biggest, buzziest cases of the next few years, such as those involving redistricting and abortion, will undoubtedly be heard by the state supreme court, hundreds of others—involving climate action, workplace rights, and public health, among other issues—will be decided by appellate judges, and appellate judges alone.
Which is to say: the makeup of the appellate court matters.
In 2020, Republicans swept all eight statewide judicial races in North Carolina, winning or retaining three seats on the supreme court and five on the court of appeals.
If Republicans perform similarly this year, they could win two additional seats on the appellate court, which is currently composed of 10 Republicans and five Democrats. If Dems sweep the appellate races, the court will shift to a near-even split.
Of course, electing judicial candidates on a partisan basis is contradictory to the impartial positions they’re running for.
“A case should be decided on the law and the facts and not on people’s ideological views,” Beskind says. “The cornerstone, the protective bumper, the place we have to rely on if things are going badly, is the court.”
Since the state legislature switched all judicial elections from nonpartisan to partisan in 2018, Beskind has noticed a shift in the neutrality of judicial candidates.
“[Partisan judicial elections] have brought out more people who have very strong ideological views as candidates,” Beskind says. “And so when I look at the candidates in this particular election, there are a few of them that I think have pretty clear and pretty strong ideological views. Which, in my opinion, is a very bad thing.”
Beskind doesn’t name names, but he could be referencing Donna Stroud, a Republican incumbent who proudly identifies as the “first conservative to serve as Chief Judge of the Court of Appeals,” or John Tyson, another Republican incumbent whose website says he “maintains a conservative judicial philosophy” that protects “self-defense” and “parental and rights of the unborn,” among other “individual freedoms” touted by the GOP.
In questionnaires submitted to the INDY and The Fayetteville Observer, all four Republican appellate candidates describe themselves as “textualists”—a mode of interpretation that focuses on the plain meaning of a legal text, with no consideration of the context in which it was written.
“Textualism is code for ‘we’re not going to legislate,’” Beskind says. “And there’s something good to be said about that. But textualism doesn’t solve all the problems. A problem may arise after a law is written, and the problem itself could not have been contemplated by the drafters of the text. How does a legislature in 1920 envision, you know, computers?”
Oftentimes, Beskind adds, a case reaches the appellate court because there’s a controversy about what the text means, so it’s crucial that judges have the ability to be open-minded in their interpretations.
“When I’m arguing a case in front of the court of appeals,” he says, “I want a fair shot.”
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