After a series of losses in state courts as well as federal on issues from gerrymandering to gubernatorial appointments, North Carolina Republicans have decided to target the courts themselves.
[T]he legislature has embarked on an unprecedented plan to transform the state’s courts by gerrymandering judicial maps to elect more Republican judges, preventing [Governor Roy] Cooper from making key judicial appointments, and seeking to get rid of judicial elections altogether. Cooper calls it an attempt to “rig the system.”
Of the GOP’s efforts, the push to redraw judicial election maps presents the biggest threat.
The new maps would likely give Republican judges 70 percent of seats on North Carolina’s superior and district courts, according to an analysis by the Southern Coalition for Social Justice, a voting rights group based in Durham. The groups calls the new lines “a gross political gerrymander of our state’s legal system, designed to ensure that Republican judges will be elected in a disproportionate number of districts statewide.”
Republicans would pick up seats by pitting Democratic incumbents against each other. About 70 percent of the judges who would be forced to run against other incumbents under the new maps are Democrats, according to the SCSJ analysis. The Republican maps would also reduce the number of minority judges by pitting half of African American judges against other incumbent judges in cities like Durham and Greensboro. The new districts “bear an uncanny resemblance” to the racially gerrymandered state legislative maps struck down in court, the analysis found.
Democratic state legislators are protesting Republican colleagues’ lack of transparency.
A joint House and Senate committee met Monday to discuss proposed changes and gather more input in an effort to reach a compromise, but Democratic members expressed frustration at the lack of background material, saying they have no clue as to how Republicans drew their proposed maps.
"You cannot draw a map without criteria. Did you consider race? Did you consider partisanship? Did you consider incumbency?" asked Rep. Darren Jackson, D-Wake. "You want participation and tell us to participate, but you're not letting us participate."
Rep. Justin Burr, R-Stanly, the sponsor of the House plan, said he merely used population as the basis for the new districts. Legislative leaders said no other statistics are available to back up the maps.
To be fair, some Republicans would be fine doing away with elections—so long as the Republican-dominated state legislature then gets to handpick judges.
Some Republicans, like state Senate leader Phil Berger, favor a more radical solution: ending judicial elections altogether. Under this proposal, the legislature would nominate candidates for the bench, and the governor would have to choose from among them to fill new vacancies, effectively allowing Republicans to select all judges. (Republicans hold a 50-seat advantage in the legislature.) Voters must approve this system through a constitutional amendment, which Republicans could put on the ballot in May, when voters will select state legislative candidates in the primaries. “This is just a way for legislators to cherry-pick their judges because they’re disappointed with how the judiciary hasn’t ruled their way,” says Melissa Price Kromm of North Carolina Voters for Clean Elections, a government watchdog group that is leading opposition to the judicial changes. South Carolina and Virginia are currently the only states where state legislatures choose judges.
Not content to merely take over the lower courts, Republicans also want to push for shorter terms, a position surely unrelated to the obstacles to illegality they’ve faced in the form of the state supreme court’s liberal majority.
Republicans are also floating a proposal to require all state judges to run for election every two years—instead of the current four-year terms for district court judges and eight-year terms for superior court, appeals court, and supreme court judges—which would give North Carolina the shortest judicial terms in the country. “Some would argue that we do have some activist judges, and the thought would be if you’re going to act like a legislator, perhaps you should run like one,” Republican state Rep. David Lewis told radio station WUNC. Republicans are particularly upset that the liberal majority on the state supreme court is safe at least through 2022, allowing the court to block GOP attempts to gerrymander electoral maps after the 2020 census.
Although the Republicans have doubled down this time, it’s hardly their first sortie when it comes to assailing the independence and the inclusivity of the state judiciary.
The GOP attack on the courts began in 2013, when the legislature ended public financing for judicial elections, which had helped elect more minority and women judges. These efforts accelerated after liberal judges gained a 4-3 majority on the North Carolina Supreme Court in 2016. The legislature promptly changed the judicial election system by requiring candidates to represent a political party, the first time a state has moved from nonpartisan to partisan judicial elections since 1921. Republicans reasoned that having to identify as a Democrat would make it harder for liberal judges to win in a GOP-leaning state. The legislature then canceled judicial primaries, giving incumbents (who were mostly Republicans) an advantage due to their name recognition in races where voters were asked to choose among many candidates. Republicans also eliminated seats on the court of appeals to prevent Cooper from appointing three new judges.
Holding the line on state courts will be critical as the Trump administration continues to force far-right nominees through the Senate and onto the federal bench at an unprecedented pace. Take, for example, Pennsylvania: It was the state supreme court, not a federal court, that struck Republicans’ extreme congressional gerrymandering. Critical as the federal judiciary is, state courts are no less important when it comes to preserving voting rights and fighting for fair elections.