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NC Republicans hoping for another sweep of statewide judicial races this year

NC Court of Appeals Building
Dave DeWitt
N.C. Court of Appeals Building

In this year's midterm elections, North Carolina voters will determine which party holds the balance of power on the state's highest court. And with major implications for everything from future elections to reproductive rights in the state, Republicans also hope to pick up four more seats on the 15-member state Court of Appeals.

North Carolina has made great strides in the past couple of years when it comes to racial justice and voting rights, according to Mitchell Brown, voting rights counsel with the Southern Coalition for Social Justice.

But Brown said those gains could be short-lived depending on the outcome of this year's statewide judicial contests, especially the two North Carolina Supreme Court seats on the ballot.

"If the court flips and changes composition then we may go back into an era where voting rights are diminished," Brown said.

Voting rights advocates concerned

SCSJ helped lead a major state Supreme Court case this year that got Republican-drawn voting maps thrown out for being unconstitutionally gerrymandered with extreme partisanship. It was a case decided by a slim 4-3 majority, with the current court's four Democrats outvoting the three Republicans. That balance of power will flip if a Republican wins just one of the two state supreme court races this year.

Brown said he fears the impact that could have on efforts to expand voting rights in the state.

"Where the legislature passes laws that are just rubber stamped by the Supreme Court," he predicted, "and are allowed to go forward even though they diminish voting rights for North Carolinians and, more specifically, diminish Black voting rights here in North Carolina."

 Republican Richard Dietz (left) and Democrat Lucy Inman (right) are running for the third seat on North Carolina's Supreme Court.
Campaign Photos
Republican Richard Dietz (left) and Democrat Lucy Inman (right) are running for the third seat on North Carolina's Supreme Court.

One of the Supreme Court races pits Court of Appeals Judge Lucy Inman against fellow appellate court Judge Richard Dietz. They're vying to replace the retiring Democratic Justice Robin Hudson.

In a candidate forum hosted by PBS NC and the North Carolina Bar Association, Dietz emphasized what he sees as the importance of justices reaching consensus in cases and avoiding writing dissenting opinions.

"And I think that's a huge part of what our Supreme Court needs right now more than ever is people that go there, no political mission, no plan to kind of try to take over the court but just work as a team and build that consensus," Dietz told the moderator.

Inman, who said she has written dissents when necessary, challenged that view.

"I think it's also important, however, to, with respect, know when you have to stand up for what is right," Inman countered.

Consensus will be difficult on a divided high court

For now, there is no photo ID requirement to vote in person in North Carolina but that could change depending on the outcome of a case being considered by the state Supreme Court. Expert testimony for the plaintiffs fighting the mostly Republican-backed ID law showed Black voters were less likely than white voters to have the requisite forms of identification.

And next year, the state's high court will consider whether people formerly incarcerated for felonies but still on probation should have their voting rights restored. In March, a trial court ruled in favor of the restoration opening the door to thousands of formerly incarcerated people to register for this year's midterms.

Judicial candidates tend to avoid specifics when talking about issues they might rule on, so voters are left to make decisions based on more vague statements about legal philosophy and methods of interpretation. Voters also have partisan labels to go by because in North Carolina judicial candidates run with party affiliations.

 Democrat Sam Ervin (left) is up for re-election to the NC Supreme Court, but is facing a challenge from Republican Trey Allen (right).
Campaign Photos
Democrat Sam Ervin (left) is up for re-election to the NC Supreme Court, but is facing a challenge from Republican Trey Allen (right).

"My judicial philosophy is really one of judicial restraint," said Trey Allen, the Republican challenging incumbent Justice Sam Ervin, a Democrat, in the other Supreme Court race. "I think the courts should closely follow the law. I think they should avoid injecting themselves into politics."

Judicial restraint is code for a stricter interpretation of laws and the constitution, a philosophy that appeals to conservative voters like Tami Fitzgerald.

"We call that textualism and originalism and that's what people should be looking for in their candidates," said Fitzgerald, founder and executive director of the NC Values Coalition, an umbrella group for pro-life Christian organizations. "In other words, are these candidates going to interpret the law as written or they going to make up the law and be activist judicials?"

Abortion, redistricting likely headed to the state Supreme Court

Fitzgerald said this year's Supreme Court races are critical with cases involving abortion and new district maps almost certain to show up on the docket in the near future.

Ervin, who has been on the state Supreme Court since 2015, said in his PBS NC candidate forum that he thinks it's important for the court not to become a political institution.

"What I try to do," he said, "is call them like I see them, because at the end of the day what you're supposed to do is you're supposed to be fair, you're supposed to be impartial, and you're supposed to follow the law as you understand it not as you would like it to be."

As with the confirmation process for federal judicial nominees, Meredith College Political Science Prof. David McLennan said that bland statements from court candidates can leave voters in the dark.

"They say 'Well, we're just going to apply the law or we're neutral arbiters of the law,'' McLennan said of judicial candidates. "And then we end up with Dobbs."

A U.S. Supreme Court decision in June upended 50 years of precedent by overturning Roe v. Wade — a 1973 case that established a woman's Constitutional right to seek an abortion — and put reproductive rights front and center in this year's midterm elections.

Justice Sam Alito, a conservative originalist, wrote the majority opinion in the Mississippi case, known as Dobbs.

After Dobbs, Republican lawmakers in North Carolina immediately moved to have a post-20-week ban on abortions restored. And Democrats fear the GOP will push for more severe restrictions after the midterms.

In the absence of direct comments by judicial candidates on particular cases or issues, voters must rely heavily on those partisan labels to help make choices at the ballot box.

"They're probably going to look at the R and the D next to the candidate's name and fill in those bubbles," McLennan said.

Republicans looking to build on 2020 gains

And McLennan said it is inevitable that, depending on one's political affiliation, when rulings don't go their way, voters are bound to see the outcome through a partisan lens.

Election workers prepare and package absentee ballot requests at the Wake County Board of Elections office in Raleigh Thursday afternoon September 15, 2022.
Jonathon Gruenke
for WUNC
Election workers prepare and package absentee ballot requests at the Wake County Board of Elections office in Raleigh Thursday afternoon September 15, 2022.

"They're going to call it partisanship even though it may be an interpretation of the law," he said.

In one of the four Court of Appeals races, Republican Julee Flood told the moderator at her PBS NC candidate forum she doesn't believe partisanship has any place in the courtroom.

"We are an error-correcting court," Flood said. "We apply the law as it is written. We are not there to make the law."

On her campaign web site, Flood said she believes fairness is achieved through judicial restraint and strict adherence to the original language of the State and Federal Constitutions.

Carolyn Thompson, the Democrat running against Flood, also said at the forum that she doesn't think partisanship has a place in the courtroom. The former district and superior court judge said the key to her judicial approach is fairness, impartiality and common sense.

"I'm the one that's going to make sure that your individual rights are protected and that we will uphold our Constitution," Thompson claimed.

In the other Court of Appeals races:

  • Republican Michael Stading, a Mecklenburg County District Court Judge is challenging incumbent Democrat Darren Jackson. Once the Minority Leader in the North Carolina General Assembly, Jackson was appointed to the Court of Appeals judge by Gov. Roy Cooper.
  • Cumberland County Superior Court Judge Gale Adams is running against Republican incumbent John Tyson.
  • Donna Stroud, Chief Judge of the Court of Appeals, is running for re-election against Democrat Brad Salmon, a district court judge serving Lee, Harnett and Johnston counties.

A recent WRAL/SurveyUSA poll showed GOP judicial candidates for the state Supreme Court with a slight edge in this year's races but with significant chunks of voters undecided.

In 2020, Republicans swept the eight statewide judicial races in North Carolina — three for the Supreme Court and five for the Court of Appeals.

Rusty Jacobs is WUNC's Voting and Election Integrity Reporter.