Oyez! Oyez!
It's April 13, and the N.C. Supreme Court is in session in Raleigh. The seven justices enter their courtroom in solemn fashion, taking their seats behind the walnut-paneled bench. Chief Justice Mark Martin, a Republican, is in the center. The six associate justices are divided equally between Republicans and Democrats, giving the Republicans a 4–3 majority. Does their party affiliation matter? It's not supposed to. And yet ...
Scheduled for argument today: Faires v. State Board of Elections. Tellingly, it's a case about Supreme Court elections. It's simple on its face. But look again: there's the full tangle of politics that has our state tied in knots.
When the case is called, Republican Justice Bob Edmunds gets up and leaves without explanation. No need. Edmunds has recused himself, and everyone in the court knows why: Faires, among other things, is about him.
At issue is a change enacted last year by the Republican-dominated General Assembly. It was designed to let Edmunds, whose eight-year term expires in December, run for "re-election" in 2016 assured that no other candidate could run against him.
How? By allowing him to choose a "retention election," a system never before used in North Carolina. The new law offered this option only to sitting Supreme Court justices who had been elected previously. Edmunds fit the bill; he was elected in 2000 and 2008. So did GOP justices Barbara Jackson and Paul Newby, whose terms will expire in 2018 and 2020. In a retention election, the only choice is whether to keep the incumbent. If not, the governor would appoint a replacement.
Obviously, lawmakers wanted to keep the Supreme Court in Republican hands.
The plaintiffs in Faires, howeverincluding Raleigh attorney Sabra Jean Fairesargued that the law violated the state constitution, which requires that judges be elected in real elections. That was the legal question. Faires was a potential candidate against Edmunds. Was her right to run protected by the constitution?
But there was also a political question that hung over the courtroom: Could these justices be trusted to set politics aside?
The good news, now that we know how Faires came out, is that the Republican scheme was indeed struck down, though not by the Supreme Court.
Consequently, Edmunds has been forced to run in a real election, beginning with a primary on June 7, against three opponents: Faires, who deserves consideration if for no other reason than that her lawsuit is the reason we're having an election; Michael Morgan, a top-rated Wake County Superior Court judge; and Daniel Robertson, a little-known Davie County bank attorney.
The top two finishers will face off in November. Edmunds, the only Republican in the field, is almost certain to be one of them.
If you don't want the court to remain under GOP control, you have options: Faires, an unaffiliated voter, or Morgan, a Democrat. (Robertson is also a Democrat.)
It's a choice you probably didn't know you have, in an election that you may not have known is happening. But it is happening, and it's as important an election for the future of North Carolina as any that will be on the ballot this year.
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Now for the bad news: the answer to that political question is no, the court's Republicans cannot be trusted to rise above politics.
Faires was an easy test, involving an uncomplicated statute with an obvious constitutional flaw. When it came before a lower court in February, the judges unanimously granted summary judgment to the plaintiffs. But the Supreme Court split 3–3, which allowed the lower court's ruling to stand. The high court's non-decision was announced May 6 in a brusque, unsigned opinion that failed to specify how each justice voted.
Again, no need. Everyone who was in court April 13 heard the three remaining GOP justices mount a vociferous defense of the law. The gist: members of the General Assembly are the people's representatives, and if they think retention elections satisfy the state constitution, that's what matters.
The three Democratsjustices Cheri Beasley, Robin Hudson, and Sam Ervin IVcountered that even legislators can't ignore the constitution, which calls for judges to be elected just as the governor and legislators are. If this law were upheld, Ervin asked, could the General Assembly create a retention election for an incumbent governor?
Edmunds didn't vote, of course. But he'd already cast his lot when, as a candidate, he decided whether or not to run in a retention election. The law gave him that choice; he could run in a traditional election, open to other candidates, or shut them out and run solo for retention.
Within days of the law's passage, Edmunds chose retention.
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If Faires demonstrated how far the Republicans will go to keep control of the Supreme Court, it told us little about why they will go so far.
For that, let's turn to John Davis, a smart political consultant who, in 2013, wrote a series of articles for his conservative-leaning clientele under the heading, "How the North Carolina Republican Party Can Maintain Political Power for 114 Years (Like Their Predecessors, the Democrats)."
Davis set down five rules, the last of which was: "Lose the courts, lose the war."
That war would be for the General Assembly, which for more than a century prior to the 2010 elections was dominated by Democrats. But here's a little-known corollary that Davis put his finger on: between 1896 and 1994, not a single Republican was elected to the state Supreme Court.
In the nineties, the Republicans began to break through, as voters started electing law-and-order candidates to the courts. By 2004, the Supreme Court was 6–1 Republican.
What happened next was redistricting mayhem. Following the 2000 census, Democrats controlled the General Assembly and, as they'd done before, they drew legislative districts that favored their continued control.
Davis, who specializes in election analysis, says the resulting Senate maps produced twenty-eight Democratic-leaning districts, sixteen Republican-leaning districts, and six swing districts. In the House, the edge was fifty-nine Democratic districts to forty-seven Republican leaners, with fourteen swing districts.
But then the state Supreme Court swept in and, in a series of rulings called the Stephenson cases, declared that the maps violated the state constitution. New maps were forced on the Democrats by the Republican court, and they shifted the gerrymandering advantage slightly in the Republicans' direction.
Which is where things stood until 2010, when a national landslide helped Republicans capture solid control of both the House and Senate. Davis maintains that, but for the Stephenson rulings, the Democrats' original maps might have allowed the party to retain its edge in at least one house. Saddled with the Republican maps, however, the Democrats were toast.
So Republican legislators were in charge of drawing the new legislative district maps following the 2010 census. The gerrymandering was vicious.
The Republican maps have allowed them to win supermajorities in both legislative houses, even though roughly the same number of people in the state vote Democratic as Republican. In short, because they controlled the Supreme Court a decade ago, the Republicans control redistricting now. Because they control redistricting, they control the General Assembly. And because they control the General Assembly, they control every aspect of public policy in North Carolina, from school funding to which bathrooms we use.
That they've gone on a right-wing rampage is putting it mildly.
Which is where the present-day Supreme Court comes in. It could put a serious crimp in their power. But as long as its GOP majority holds, it won't.
Critically, the Supreme Court decides whether the Republican gerrymander is unconstitutional, which it arguably is because of the extent to which voters are assigned to districts by racediluting the impact of African-Americans and thus helping Republicans.
Twice so far, the Supreme Court has approved the current Republican maps. The first time, in 2014, the vote was 4–2 (one seat was vacant), with Edmunds writing the majority opinion for the Republican bloc. Ordered by the U.S. Supreme Court to review the maps a second time, the Republican quartet again rubber-stamped them in a 4–3 opinion written by Newby.
Each time, the court's only African-American justice, Cheri Beasley, authored angry dissents, joined by her fellow Democrats, blasting the maps as illegal racial gerrymanders.
It's not hard to surmise that if the Republicans lose control of the court, Beasley's dissents will become the majority opinion and the Republican gerrymandering will eventually be struck down. That might not cost the Republicans control of the legislature, at least not right away. At a minimum, though, their margins would be thinner, and there would be far fewer safely Republican districts.
That, in turn, might curb the Republicans' enthusiasm for legislation like House Bill 2.
HB 2 is the subject of dueling lawsuits in federal courts, though it could also be challenged in state courts based on the state constitution's guarantees of equality and equal protection under the law. With the current GOP majority on the Supreme Court, such a challenge would fail. A more progressive court, however, might strike it down.
A more immediate example of constitutionally dubious legislation is the state's school voucher plan, the so-called Opportunity Scholarship Program. It provides annual grants of up to $4,200 per student to private schools, religious schools, even home schools, with no standards for what's taught, who the teachers are, or what the students are learningif anything.
Wake County Superior Court Judge Robert H. Hobgood ruled that the program violated the state constitution in eight separate ways, including the clear requirement that public funds for education be used "exclusively" for public schools.
But in 2015, the Supreme Court overruled him, 4–3, with the Republican quartet again finding that if the General Assembly had decided something was constitutional, it was.
It's hard to imagine that a court with fewer Republicans would rule the same way.
The Challengers
Here's irony: Supreme Court elections are officially nonpartisan. So you won't see any party designations on your Supreme Court primary ballot. But Edmunds will likely finish first, because he's the only Republican running, and the Republican Party is telling its voters to support him. One other advantage Edmunds has: there are four hotly contested Republican congressional primaries on June 7 and just one Democratic primary. In much of the state, this so-far obscure judicial primary will be the only reason to vote. Turnout will be awful. But because of the congressional races, it will be somewhat less awful on the Republican side.
As for the Faires-Morgan choice (you can only vote for one, after all): Faires is a sixty-year-old lawyer for a private firm. But for thirty years she worked on the legal staff at the General Assembly, serving as an expert on tax and election laws whose advice was trusted on both sides of the aisle. She has the unique distinction of having been a top aide at different times to former Senate leader Marc Basnight, a Democrat, and former House Co-Speaker Richard Morgan, a Republican.
A self-described introvert, she'd actually decided not to run against Edmunds until the retention-election bill came alonga bill she knew instantly was unconstitutional. Yet it passed, and Edmunds signed up for a retention election.
"I thought, this is a total outrage," she says. "This is nothing but blatant partisan politics."
The Supreme Court shouldn't be political, she saysand if she's on it, she won't be.
Morgan, also sixty, isn't quite as blunt when it comes to calling out the court's partisanship. As a sitting judge, there are limits to what he can say. But he makes the point indirectly, criticizing Edmunds for labeling himself "conservative."
True, Morgan's a Democrat. "But I've not called myself 'liberal' ... or 'progressive' or anything else except fair and impartial," he says.
Morgan is running on his experience as a judge for twenty-one years on the superior court and district court. As a trial judge, he gets high marks from the bar association.
"I want this as a promotion," he says. "I feel I'm ready for promotion to the highest court."
He offers something else, too. He's an African-American male. And while he's not running as a "black candidate," he says, he is someone who likes to get out in the community, speak to groups, answer questions, and try to dispel by example the idea that the judicial system can't be fair to African-American men.
It's hard to run in judicial races. The candidates can't talk about cases that may come their way or even about constitutional issues except in the most general terms.
Faires does, however, object to the kind of gerrymandering that produces districts that look like "ink splats."
And when asked about the voucher law, Morgan mentions that he serves on the bench with Judge Hobgood, who ruled against the law but was overruled by the Supreme Court. "I have a great deal of respect for Robert Hobgood," Morgan says. "His thoroughness and his reasoning, I always find to be enlightening. I felt as though it was the same in this case."
Which is about as close to a policy position as he's allowed to take.
This article appeared in print with the headline "The Quiet Election That Could Save the State"
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Courtesy of sabrajeanfairesforjustice.com
Sabra Faires
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Photo by Mike Whitaker
Judge Michael Morgan
