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NC Supreme Court: 4 of 7 Seats Up in 2014. Rule #5: Lose the courts, lose the war

 Lady Justice may be blindfolded, and those scales she holds may be balanced, but if the case impacts the outcome of political races, Lady Justice will take that blindfold off to check the political party of the plaintiffs … then she will adjust the scales accordingly. John Davis Political Report, February 5, 2013            

Tuesday, February 5, 2013             Vol. VI, No. 5             2:13 pm

 When I saw today’s dramatic news that the North Carolina Senate Rules Committee had passed a bill out that would “effectively fire all members of the Utilities Commission, Environmental Management Commission, Coastal Resources Commission, Lottery Commission and Wildlife Resources Commission,” I saw a full-employment opportunity for state lawyers.

The Republican majority has a right to initiate radical reforms. Everyone else has a right to sue them.  That’s why next year’s Supreme Court races are critical for long-term Republican political dominance.

In 2014, four of North Carolina’s seven Supreme Court justices will be elected.  There will be a new Chief Justice, as Chief Justice Sarah Parker will reach the mandatory retirement age of 72 on August 23, 2014.  The four Supreme Court seats up for election in 2014 are:

• Chief Justice Sarah Parker, Democrat, Mecklenburg (Mandatory retirement)
• Justice Mark Martin, Republican, Wake (Running for Chief Justice)
• Justice Cheri Beasley, Democrat, Cumberland (Appointed to Timmons-Goodson seat)
• Justice Robin Hudson, Democrat, Wake

The NC Supreme Court has a solid conservative majority.  There are four “non-partisan” Republicans and three “non-partisan” Democrats.  Chief Justice Parker, a former member of the Executive Committee of the state Democratic Party, has long been seen as a conservative justice.

However, North Carolina is a purple, battleground state trending blue. Blue is Democratic. Most of the growth in the next several decades will be in urban areas; Democrat-friendly areas. There is no guarantee that returning to partisan Supreme Court races alone will help Republicans keep the majority.

But this much you can guarantee: Lady Justice may be blindfolded, and those scales she holds may be balanced, but if the case impacts the outcome of political races, Lady Justice will take that blindfold off to check the political party of the plaintiffs … then she will adjust the scales accordingly.

Three weeks ago, I began a series of reports highlighting key rules for How the North Carolina Republican Party Can Maintain Political Power for 114 Years (like their predecessors the Democrats). The four rules highlighted thus far are:

• Rule #1: Always remember that you are vulnerable
• Rule #2: Criminal indictments scare off contributors
• Rule #3: Keep your voters close, and your metropolitan voters closer
• Rule #4: Caring must be at the core of conservatism

Today, I am adding Rule #5: Lose the courts, lose the war.

US Supreme Court: 224 decisions with a 5-4 vote since 2000

 To give you some idea of what an ideologically split NC Supreme Court would look like, consider the US Supreme Court.  The justices are historically labeled ideologically as liberals, moderates or conservatives.  According to SCOTUSblog, about 80% of all US Supreme Court cases are not decided along ideological lines.  However, an average of 19 cases a year are 5-4 decisions.

• Since 2000, there have been 224 US Supreme Court 5-4 split decisions
• US Supreme Court has an average of 19 opinions per term with a 5-4 split decision
• 70% of all 5-4 split decisions divided the US Supreme Court along ideological lines

Examples of 5-4 votes by the US Supreme Court since 2000:

• BUSH v. GORE (2000) decided the outcome of the presidential race
• CITIZENS UNITED v. FEC (2010) decided that independent political spending was unlimited
• NFIB v. SEBELIUS (2012) decided that ObamaCare’s individual mandate is constitutional

In the 2012, one man, US Supreme Court Chief Justice John Roberts, decided that ObamaCare is constitutional. Not the $700 million spent in 2012 by conservative independent groups; not the $1.2 billion spent by “I will repeal ObamaCare” Mitt Romney. Just John Roberts.

What angered conservatives the most about ObamaCare was the individual mandate; the right of the government to compel Americans to buy health insurance. According to Forbes, The Inside Story on How Roberts Changed His Supreme Court Vote on Obamacare, Chief Justice Roberts initially sided with the “four conservatives” on the court. Then, he switched. Now, ObamaCare is constitutional.

Political Turning Point for NC Republicans was the Stephenson Case

 There is no greater illustration of the political significance of the courts in North Carolina than the Stephenson v. Bartlett redistricting case in 2002.  A 5-2 Republican NC Supreme Court upheld lower court rulings in favor of Republican plaintiffs who argued that the Democratic legislative remappers violated the state constitution by failing to preserve whole counties. They even upheld the right of a Superior Court judge to throw out the legislative plans and draw his own interim maps.

Here is what the press had to say:

Asheville Citizens Times, June 1, 2002; Writer: Kerra Fisher: “The equivalent of a political seismic shift occurred on Friday, when a Smithfield trial court judge issued new political boundaries for the state that could tip the scales of legislative power in the Republicans’ favor.”

Winston-Salem Journal, Sat. June 1, 2002; Writer: David Rice: “In a decision that Republicans said puts both houses of the General Assembly in play and that Democrats criticized as unjustified judicial activism, a judge adopted new maps yesterday for state legislative districts in the 2002 elections.”

The political consequences were dramatic, shifting the advantage of remapping away from the Democrats to a level legislative playing field.

NC Senate Democrats: 12-Seat Advantage to 0-Seat Advantage

• In 2001, Democrats in the NC General Assembly drew 28 Senate districts favoring the election of a Democrat and 16 Senate districts favoring the election of a Republican, for a net advantage of 12 districts for the Democrats. There were six swing Senate districts.
• After the judicially mandated remapping of districts based on the 2002 ruling of the North Carolina Supreme Court in Stephenson v. Bartlett, there were only 22 Senate districts favoring the election of a Democrat and 22 Senate districts favoring the election of a Republican, for a total loss of the advantage for the Democrats. There were six swing Senate districts.

 NC House Democrats: 12-Seat Advantage to 4-Seat Disadvantage

• In 2001, Democrats in the NC General Assembly drew 59 House districts favoring the election of a Democrat and 47 House districts favoring the election of a Republican, for a net advantage of 12 districts.  There were 14 swing House districts.
• After judicially mandated remapping the districts based on the 2002 ruling of the North Carolina Supreme Court in Stephenson v. Bartlett, there were only 51 districts favoring the election of a Democrat and 55 districts favoring the election of a Republican, for a net loss of 16 districts for the Democrats. There were still 14 swing districts.

Democrats were outraged. Here is what a few Democrats had to say at the time:

Sen. Allen Wellons, (D), Johnston: “The Constitution has been trampled on. I’m shocked. This is the worst judicial activism I’ve seen,” said Wellons, “Unless the people stand up and see what has been done to them, the Republicans will take over the legislature.”

Sen. Fountain Odom, (D), Mecklenburg: “It’s unbelievable to me a judge has exercised his discretion in what he thinks maps should look like,” Odom said. “The plaintiffs in this case went judge shopping and found a judge that was not only friendly to their cause but was a friend of theirs.”  .

Sen. Wib Gulley, (D), Durham: “It’s become very clear that [Jenkins] has engaged in a raw power grab on behalf of the GOP,” said Gulley, “All it does is ensure the election of more Republicans.”

Scott Falmlen, Executive Director of the NC Democratic Party: “It’s not too difficult for us to believe that the fix was in from the very beginning,” he said.  “I don’t ever want to hear a Republican complain about judicial activism…. These are the most activist opinions I’ve ever seen.”

I added the outrage so you can sense the political significance of the NC Supreme Court’s rulings.  “Unless the people stand up and see what has been done to them, the Republicans will take over the legislature,” said Sen. Allen Wellons, (D), Johnston.

Without Stephenson v. Bartlett, the number of state senate and house districts drawn to favor Democrats would likely have been too great to overcome in 2010, even with a strong Republican leadership team and national GOP-friendly momentum driven by anti-President Obama sentiment.

Without 2010, Republicans would not be in power today.

Democrats stopped partisan races in 2002 and created a political trap

 During the 2002 legislative session, the Judicial Campaign Reform Act was passed over the objections of Republicans, ending partisan elections for NC Supreme Court and Court of Appeals races. The law included provisions for the use of public financing of appellate judiciary campaigns, making North Carolina the first state to adopt full public financing of appellate judicial elections.

Why had non-partisan elections not been a priority for Democrats before 2002? Because there were no Republicans elected to the NC Supreme Court from 1896 until 1994.  Thanks to the national Republican wave in 1994, Republicans I. Beverly Lake and Robert F. Orr won seats on the court.

Ten years after the first Republican NC Supreme Court Justices elected in the 20^th Century took their seats, the court became 6-1 Republican with a Republican Chief Justice. That is due in great part to the 1990s being a conservative era, especially with regards to crime and justice.

North Carolina Democrats had to act. What could be done to stop the era of Republican dominance? The answer was three-fold: 1.Non-partisan elections; 2. Public financing limits; 3. A secret fund to run independent expenditure TV ads on behalf of their slate of candidates.

It was a trap. Take the party off the ballot, lure Republicans into limiting themselves to a meager $250,000 in a publicly financed statewide campaign, and then create an independent expenditure committee to effectively double the money being spent on behalf of their candidates.

The trap was sprung in 2006

 In 2006, the trap was sprung. A Democrat-financed independent expenditure group named FairJudges.net spent about as much independently for TV ads promoting their slate of Supreme Court candidates as candidates accepting the public financing limits, thereby doubling the influence of money in the targeted Supreme Court races.

Case in point is the 2006 race for the Supreme Court between Robin Hudson, a Democrat, and Ann Marie Calabria, a Republican.  Hudson barely defeated Calabria 50.6% to 49.4%, spending $273,759 to Calabria’s $291,056.  Hudson not only benefited from the $259,101 spent by FairJudges.net on ads naming her as a “fair judge,” she benefited from the non-partisan elections bill passed by Democrats.

Prior to non-partisan elections, Calabria would have had a partisan advantage, as voters consistently chose Republicans over Democrats in Supreme Court races in the ten years leading up to 2006, even when the GOP candidates were outspent.  North Carolinians wanted a conservative appellate judiciary.

The News & Observer published a story October 31, 2006, “TV Ads Highlight 4 Candidates,” reporting that FairJudges.net was organized by Scott Falmien, former Executive Director of the state Democratic Party.  According to the N&O, a FairJudges.net press release “listed donors, mainly Democratic-leaning entities and individual: the NC Democratic Party, the N.C. Academy of Trial Lawyers PAC, the Teamsters’ political committee, several trial lawyers, and others.”

It was a political trap.

Anticipated demographic changes give Democrats a growing advantage

 The conservative leanings of the current NC Supreme Court on matters involving politics and reapportionment challenges can be seen in recent rulings:

• Dickson v. Rucho: Ruled in favor of Republicans on the matter of whether email between legislative leaders and redistricting attorneys was protected under attorney client privilege.
• Ruled that Republican Justice Paul Newby did not have to recuse himself from redistricting cases just because of independent expenditures made in 2012 on behalf of his campaign.

However, remember, North Carolina is a purple, battleground state trending blue.  Blue is Democratic.  Most of the growth in the next several decades will be in urban areas; Democrat-friendly areas.

If Republicans want to keep the majority on the appellate courts, they should:

• Pass legislation, like the Democrats, to give Republicans advantages in judicial races
• Continue to fund independent expenditure committees, like the Democrats started in 2006

Lady Justice may be blindfolded, and those scales she holds may be balanced, but if the case impacts the outcome of political races, Lady Justice will take that blindfold off to check the political party of the plaintiffs … then she will adjust the balance of the scales accordingly.

Rule #5: Lose the courts, lose the war.

– END –

Thank You for Reading the John Davis Political Report!

John N. Davis, Editor

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