Voters have the opportunity to impact the state’s legislative future this week and oddly it has nothing to do with either the legislative or executive branches- it’s with the judicial branch. Specifically, it involves the North Carolina Supreme Court races pitting three conservatives or Republican against three Democrats.
Currently the state’s highest court is weighted 6-1 in favor of Governor Cooper’s party, Democrat, which over the past two years has benefited the governor in his fight over legislative matters. And should this disparity continue, the state’s legislative and administrative decisions will be dictated by the governor, facilitated by the state’s highest court and not by the elected legislators who are constitutionally responsible for passing laws and setting budget priorities.
This year’s Supreme Court race pits Republican Justice Paul Newby against Chief Justice Cheri Beasley who was appointed to that seat by Governor Cooper to fill the unexpired term of retiring Chief Justice Mark Martin. Justice Newby has vacated his seat on the Supreme Court to run for the Chief Justice position. Court of Appeals Judge Phil Berger Jr., a Republican and son of N.C. Senate leader Phil Berger, is competing with fellow Appeals Court Judge Lucy Inman for the seat left open by Justice Newby’s race.
Former Republican State Senator Tamara Barringer, Wake County, is running against Justice Mark Davis who was appointed to the court to fill the vacancy left when Justice Beasley was tapped to be Chief Justice.
It is unfortunate that voters are now having to consider legislative issues with every vote cast, especially in the case of judicial races. Normally voters assume that judicial races are perfunctory and that they are little more than nominal differences between candidates based on legal experience and not on party affiliation. That is no longer the case.
Political decisions, particularly legislative decisions, are no longer decided through debate and compromise in the bicameral General Assembly. Instead, either the losers in the contest and or affected parties pursue legal action that eventually lands at the door step of the state’s Supreme Court. The result is that the court is used to bypass the will of the voters and their elected representatives in the House of Representatives and Senate.
Jon Guze, director of legal studies at the John Locke Foundation, predicts that this year’s judicial elections for the state’s highest court will determine the laws and public policies for the state for many years ahead.
Guz describes the North Carolina Supreme Court as a “super legislature” in a recent Carolina Journal article written by Kari Travis. He goes on to say, “As a result of judicial doctrines adopted in the second half of the 20th century, the court now has the power to uphold facially unconstitutional laws if a majority of the justices approve them on policy ground, to strike down facially constitutional laws if a majority of justices disapprove of them on policy grounds and to change the meaning of laws and the Constitution- in order to advance the majority’s policy.”
This doctrinal approach when added to political intentions of any of the other branches results in total or arguably dictatorial control of not only laws, but finances and eventually public policy. And that is what Governor Cooper has enjoyed for the past two years and possibly the next four years if the current political makeup of the N.C. Supreme Court remains.
While Cooper lacks a compliant legislature he has used the state’s highest court to stymie voter approved constitutional amendments such as voter ID; refused to follow through in his constitutional requirements to work with the Council of State- all the other elected administrative officers- in forming his Covid-19 mandates that are crippling the state’s economy and its citizens; and is threatening the legislature’s prerogatives to establish funding priorities such as Opportunity Scholarships designated to opening school choice opportunities for low-income families.
This year’s judicial elections will directly influence redistricting resulting from the 2020 census, which has been a litigious concern every ten years, as well as the future of Opportunity Scholarships now being being litigated through the state’s courts as is the constitutional amendment of Voter ID.
In the waning days of the election process, as voters are inundated with political ads promoting up-ballot races for President, U.S. Senate and Governor, there is need to focus on the more sedate but equally important down-ballot state judiciary races. Because of the new found value of legal action by progressives, the state’s future and the voice of its citizens hang in the balance.