Republicans hold a slim 4-3 majority on North Carolina’s Supreme Court, where justices are chosen in nonpartisan elections against another candidate for an eight-year term. To protect that majority in 2016, state Republicans passed a law in 2015 to allow incumbents seeking reelection to switch to a retention election where they would simply face a yes or no vote, a process that is far friendlier to incumbents than a head-to-head election.
Electing judges is awful for good governance and retention elections can help reduce partisan influence over the judicial selection process. However, after spending millions on the last several races, including a high-profile effort in 2014 that narrowly failed to flip all three remaining Democratic seats, Republicans’ bid to change to judicial retention elections solely for the state Supreme Court reeks of hypocrisy and partisanship. Fortunately for Democrats, a district court panel recently struck down this law for violating the state constitution, which would have required a voter-approved amendment rather than merely a statute to institute retention elections.
Republican Justice Bob Edmunds, who is up for reelection this year and was at the center of this controversy, recently recused himself from hearing the appeal. That practically ensures that the state Supreme Court will deadlock 3-3 and the lower court ruling will stand, meaning Edmunds will likely face a Democratic opponent in November when he seeks a third term. Incumbent judges can be difficult to beat, but Edmunds only narrowly survived by a two-point margin in 2008. He will be quite vulnerable in 2016, especially if Donald Trump or Ted Cruz leads the Republican ticket and Hillary Clinton wins North Carolina. If Democrats defeat him, they will likely hold a 4-3 majority until at least 2023.
So what does this have to do with redistricting?
North Carolina is one of the most gerrymandered states in the country. In 2012, Democratic candidates effectively won the most votes statewide, but gerrymandering gave Republicans veto-proof majorities. Republicans are thus overwhelming favorites to hold the legislature during the next redistricting cycle. However, when they try to pass new state legislative gerrymanders in 2021, a Democratic court majority will likely strike them down for violating the state constitution, violating the Voting Rights Act, and maybe even by finding such flagrantly partisan gerrymandering illegal.
Why can we be so confident that a Democratic court would at least partially curtail the eventual Republican maps? Because every Democratic justice already supported efforts to do so in 2015, when the current maps wound up before the state Supreme Court and only survived because of the Republican majority. With North Carolina’s governor having no legal role in the redistricting process and winning the legislature in 2020 under the current gerrymanders nearly impossible, retaking the court is simply the most plausible way Democrats can block future Republican gerrymanders at the state and even the local level.
Unfortunately, the state constitution doesn’t have the same restrictive criteria for congressional redistricting that it does for the state legislature, so Democrats will have to hope the federal courts continue to curtail congressional gerrymandering. However, thwarting legislative gerrymanders could allow Democrats to regain General Assembly majorities next decade—and that alone presents an enormous opportunity to repair some of the damage Republicans have caused under Gov. Pat McCrory.
Even if Democrats again fail to defeat Edmunds in 2016, they still have hope of changing the balance of the court in time for redistricting. If attorney general Roy Cooper defeats McCrory for governor this year and wins reelection in 2020, Republicans would lose their court majority in April 2021 because Edmunds will hit the mandatory retirement age of 72 then. A Democratic governor could then appoint a replacement for Edmunds, whereas if McCrory is reelected or Republicans prevail in 2020, Edmunds could time his retirement to fall under a Republican governor.
2016 is a critical election for the future of North Carolina politics. If Democrats hope to block future Republican efforts to undermine the integrity of the democratic process through gerrymandering, they absolutely must work to defeat Bob Edmunds and Pat McCrory this year.