This story was co-published with Democracy NC.
North Carolina Republicans have overhauled the way North Carolinians vote and are represented by their government in the seven years since they seized control of the state legislature. Now the GOP leadership has turned its attention towards further consolidating the party's power over the state judiciary. With the threat of a new gerrymandering bill on the horizon that would redraw the judicial districts, some jurists are worried that the Republican supermajority's manipulations pose a long-term threat to the courts' independence in the state.
Over the past two years, Republican leaders have tried a number of tactics to shift the judiciary into their column. They shrunk the size of the Court of Appeals to prevent Gov. Roy Cooper from appointing Democrats and diluted the state Supreme Court's power of appellate review. GOP lawmakers also reinstituted partisan judicial elections and reordered the ballot in Court of Appeals races to stack Republican candidates at the top. This change arguably made it easier for Phil Berger Jr. — the son of Senate Leader Phil Berger — to win his election last year over Democrat incumbent Linda Stephens by a thin margin.
"The current leadership is doing everything it can to try to ensure that Republicans have the best chance of being elected to the judiciary," Stephens told Scalawag in the conference room of the Raleigh firm where she currently works. "And if that means giving the Republican candidates an unfair advantage, in my opinion, the current leadership is willing to enact legislation to secure that advantage."
In pushing through these judicial changes, GOP lawmakers have eschewed the traditional legislative process in favor of expediting bills, which has angered some Republicans as well as Democrats.
The closed-door legislating doesn't look to be letting up either. Rep. Justin Burr, a rightwing House Republican, introduced a bill last session that would redraw the maps allocating the district court and district attorney seats. The bill was delayed, but may return in either a special session planned for October or next year's short session.
Burr faced criticism for not including input from current judges and district attorneys in House Bill 717.
"This proposal to redo judicial districts may very well have some merit," said former state Supreme Court Justice Robert Orr, a Republican. "But that's the sort of major change that you should have a study committee, hearings [for]. The administration of the courts [is] involved, and the local elected officials who are affected should have an opportunity to come in and make their case for or against the changes. You just don't draw up a map in the backroom and try and run it through for a vote."
But that's the approach that the current Republican majority has favored. And if they get their way, reshaping the courts — irrespective of whether the public supports it or not —could have far-reaching ramifications for judicial independence in North Carolina.
The redistricting process has long proven a successful way to shift political power — and both Democrats and Republicans alike have sought to use it to their advantage in North Carolina historically. But since winning majority control of the legislature in 2010, Republicans have deployed redistricting legislation to lock down their control over all levels of state government.
Making a foray into redrawing the judicial districts, however, is a recent move for Republican legislators. Introduced this summer, Burr's bill would have changed not only the lines of the district and superior courts, but also those for the prosecutorial districts, all of which have existed for decades. The effects on Democrats would have been palpable. For example, two district attorneys would have their posts eliminated — one position covers Scotland and Hoke counties, and the other covers Anson and Richmond. Cooper won all of those counties except Richmond, and he lost Richmond County by less than 500 votes.
Burr released the new maps on a Sunday night in June. The committee hearing on them was scheduled for the next day.
"The most egregious thing was that no one was consulted about it or knew who drew the maps," Democratic Rep. Marcia Morey said. Morey previously served as the chief district judge of Durham County. "I mean, was it really just Justin Burr on his own? I think the silence of the administrative office of the courts was quite apparent."
Some district attorneys weren't happy with the process either.
"I don't think [the proposal] is a good idea, and I think these proposals came about with no consultation with the people who understand the districts and the people who would be most affected by this," Orange and Chatham County District Attorney Jim Woodall said. "I don't think [Burr's proposal] has been thought out or vetted to the extent it should be, and I hope it does at some point."
HB 717 would have affected Woodall's district enormously. The new map would have removed Chatham County, a liberal-leaning county that both Clinton and Cooper won by double digits, from the district it shares with Orange County — one of the bluest counties in the state. Instead, Chatham's some 70,000 residents would have been added to a district with Randolph County, which President Trump won with 76 percent of the vote last year. Given that Randolph County's population is roughly the same size as Orange's, Chatham County's judiciary would likely become more conservative than its population.
Woodall told Scalawag the change would have had negative impacts on Chatham.
"Chatham and Orange have been a district for over 40 years now," Woodall said. "So I think we have a collective history together that's not just the judges, lawyers, prosecutors, and public defenders, but the citizens of the two counties… Chatham is smaller and less populated, and because of that, they've not had the resources that we have in Orange County. And we have shared those resources."
One of those ideas shared with Chatham, Woodall says, is a community resource court, which started in Orange County as a partnership with the UNC Center for Excellence in Community Mental Health. A community resource court, according to the court administration's website, is a special court that "links eligible offenders with services and supports that help them to better manage their mental illness." Those eligible to participate can agree to accept treatment for mental health and substance abuse instead of jail time. Woodall called the program "very effective."
"When it started years ago, I was a skeptic. I thought we were coddling people too much," he said. "It started in Orange, went to Chatham, and then went to places throughout the state."
Before HB 717 could advance, the regular General Assembly session ended, but the reprieve may only be short-lived. Calling the current districts "gerrymandered and disproportionate," Burr vowed to bring the measure back.
"I look forward to debating HB 717 when the General Assembly returns in a few months," Burr told the News & Observer at the time. "In the meantime, I will continue to welcome feedback from those interested in the commonsense and badly needed judicial-district reforms I am proposing in HB 717."
Burr's effort to rework the district courts comes on the heels of the GOP's work this year to minimize the influence of Democrats on the state Supreme Court. In a surprise win for Democrats last election, a superior court judge in Durham beat incumbent Justice Robert Hunter by nearly double digits. Michael Morgan's win gave Democrats a 4-3 advantage on the state's highest court as the justices review a number of GOP-instigated policy changes, including the gerrymandered legislative district maps.
A month after Morgan's win, the GOP leadership called a "surprise" special session — two weeks before Cooper took office and just minutes after lawmakers concluded another session to appropriate funding to rebuild communities after Hurricane Matthew and wildfires. Over the next few days, the legislature not only attempted to curb Cooper's power ahead of him taking office, but it also made Supreme Court races partisan for the first time since 2002.
Legislators also changed the process for state constitutional challenges: previously, cases that raised constitutional issues skipped the Court of Appeals and went straight to the highest court for review. Under the new law, those cases now go first to the heavily Republican Court of Appeals, which can decide to hear them en banc with all 15 members or with the traditional three-judge panel. Former appellate judge Douglas McCullough said that change was based on a misconception of how the Court of Appeals actually operates.
"They seem to think that judges decide cases the way [lawmakers] decide issues in caucus," he said. "I believe that's their perception of the en banc procedure. There is one area where en banc is very useful, and that's when one panel has ruled on an issue, but another panel can't overrule the panel. So if that issue comes back before the court, it could then be overruled by the court sitting en banc."
He said that this situation, however, is exceptionally rare.
"In fifteen years on the Court of Appeals, I had one issue and saw another issue where that situation presented itself," he said, "The problem with [the legislature's] reasoning is that under the rules, the Supreme Court can take away a case from the Court of Appeals anytime it wants to."
It's not clear how this will actually work in practice. According to rules established by the Supreme Court days after the legislation passed, an en banc procedure "is not favored and ordinarily will not be ordered" unless the party petitioning for the case to be heard by the full court can prove that it is "necessary to secure or maintain uniformity of the court's decisions," or the judges decide that the case "involves a question of exceptional importance that must be concisely stated." Perhaps more tellingly, according to what one courts' staffer told NC Lawyers' Weekly, there isn't even a courtroom at the Court of Appeals or at the Supreme Court that's large enough to accommodate an en banc hearing.
Morgan's importance on the Supreme Court, meanwhile, should not be understated. In February, the state Supreme Court blocked changes that would have merged the State Board of Elections and the State Ethics Commission into an eight-member board with equal representation from Democrats and Republicans; previously, the governor's party held a majority of the five seats on the Board of Elections. Democrats have called the move a blatant attempt to subvert Democratic control over the state's election process following more than six years of GOP dominance. The state Supreme Court is now taking the issue up; given the Board of Election's role in keeping polling stations open during the last gubernatorial election, Morgan's vote could be a crucial one, should the 2020 election be as close as it was last year.
"Whether [the changes] are because the Republican leadership is doing everything it can to control all three branches of government, or whether the Republican leadership is looking for ways to avoid having legislation declared unconstitutional or overturned, I don't know," Stephens said about the GOP-led changes to the appellate courts. "Regardless of the political affiliation of individuals elected to the bench, the job they take is to uphold the Constitution of the country and the state…It would certainly be a sad day if the goal, and certainly even worse if the result, is to put people on the bench who will ignore that and uphold unconstitutional legislation."
While the legislature has taken aim at both the highest and lowest levels of the judiciary, Republican lawmakers have focused their work by far the most on the Court of Appeals.
McCullough told Scalawag that over last Thanksgiving weekend, he received a call from Robin Hayes, the chairman of the state Republican Party. Hayes asked him to resign his seat on the Court of Appeals in order to allow for a successor to be appointed by McCrory, prior to Cooper taking office. (McCrory officially conceded on Dec. 5 and Cooper took office on Jan. 1.)
"I told him I could not do that in good conscience because I had 25 pending cases in 2016," McCullough said. "We had three judges on court retire unexpectedly, and I had to turn to their cases first to get the work done."
Instead, McCullough says, he offered Hayes an alternative — for the legislature to raise the mandatory retirement age from the age of 72, so that he could serve out his term or serve until his successor was elected.
"[Hayes] said, 'No, we'll never do that,'…that's when I realized it wasn't just keeping a Republican in the seat, it was their Republican that they wanted," McCullough said. "And I was not that guy."
In April, the legislature passed HB 239, a law that would eventually lower the number of seats on the Court of Appeals from 15 to 12. The measure prevents Cooper from appointing replacements for the next three judges to retire and thus keeps a solid Republican majority intact. Republicans claimed the change was motivated by the appellate court's flagging caseload.
Judge Donna Stroud, another Republican on the Court of Appeals, was dispatched to offer testimony to the House committee with "the correct statistical information" about the court's workload, McCullough said. She spoke at the Senate committee hearing and corrected the inaccurate caseload statistics that had been cited by Rep. Sarah Stevens; the bill passed anyway.
After Cooper vetoed the measure on April 21, the legislature was expected to override the veto. Before they got a chance to, however, McCullough unexpectedly retired a month early, which allowed Cooper to appoint his replacement. Cooper immediately did — choosing Democrat John Arrowood, who previously served on the court for fourteen months in 2007-2008.
"I did not want my legacy to be the elimination of a seat and the impairment of a court that I have served on," McCullough said at the time. On April 26, the legislature overrode Cooper's veto, and the appellate seats will begin to be phased out starting with the next retirement.
Republicans have used other tactics to stack the court with allies who would rule against challenges to their legislative agenda. In 2015, the legislature added a requirement that listed party affiliations on the ballot for the Court of Appeals races. The following year, another law changed the ballot order for Court of Appeals races, discarding the Board of Elections' randomization method in favor of an ordering that would list the nominee from the governor's party first. At the time, that would have bumped Republican candidates to the top.
The legislative change might seem minor and technical, but studies have shown that being the first candidate listed on the ballot provides a significant advantage, particularly in down-ballot races where the candidates aren't as well known. A 2016 Sam Houston State study showed that holding the first position on the ballot could raise a candidate's vote share by at least ten percent in down-ballot races.
The change came at an opportune time for one candidate. Out of the five seats up for election on the 15-seat appellate court last year, only one belonged to a Democratic incumbent, the seat held by Linda Stephens.
Her opponent? Phil Berger Jr., a former failed congressional candidate whose father is Senate President Pro Tem Phil Berger, arguably the most powerful politician in the state. Berger Jr. defeated Stephens by 22,000 votes, just half of a percentage point.
"I was specifically targeted," Stephens said. "All of the Court of Appeals races that were contested, everybody whose name was listed first won."
With Republicans holding onto the other seats last fall, the conservatives gained an 11 to 4 advantage on the state's second-highest court, before Arrowood's appointment brought it back to a 10-5 split.
As Morey, who was a district judge herself for nearly two decades, put it: "It was a perfect example of what's going on. Micromanaging to the broad brush stroke."
While Republicans have upped the ante in recent years, Orr says that in the hundred-plus years that Democrats ran the state, they gamed the system as well. This has been particularly apparent with regard to ballot order.
"Going back to the mid-eighties, they wouldn't tell you the order they were going to pick," said Orr, who now teaches law at UNC Chapel Hill. "I've seen it reverse alphabetical order, I've seen it by incumbent [first]…I think in the greater scheme of trying to give some advantage to a candidate or a group of candidates, the ballot placement has been historically manipulated."
Rep. Joe John, a Democrat who served on the Court of Appeals for eight years in the '90s and early 2000s, pushed back on the idea that Republicans are simply continuing with a bipartisan tradition of rigging the courts.
"The Republicans point to an expansion of the court from 12 to 15 at the end of [former] Governor [Jim] Hunt's final term, but I was on the court at that time, and I don't recall any of [the judges] being particularly involved in that," John said. "My mother said I don't know how many times to me that two wrongs don't make a right. Let's all be adults and stand up and say that it was wrong for us, it's wrong for them now, so let's do it the right way."
Orr remained steadfast in his view that the Republicans are now returning the favor after 100 years of Democratic rule in the state. But either way, he thinks the opaque way that the current lawmakers are handling legislation on court administration harms the judiciary.
"I think it has a substantial negative impact [on judicial independence]," Orr said. "[Judges] see this kind of overt political organization by the General Assembly — which as a practical matter, determines the budget for the judicial system and determines the districts for trial judges. [They] have all of this raw power over the court system."
The problem is not that there aren't better methods to ensure judicial independence. Independent commissions to select judges or to redraw districts have been floated, as has returning to non-partisan elections. Orr suggested that there should be an independent financing system for the judiciary to "take the power of the purse out of the equation when it comes to the legislature and the courts." He also suggested electing judges by panel rather than individually.
Meanwhile, both Morey and John said that they plan to introduce legislation that would appoint some sort of nonpartisan commission to study how judges are selected.
"The further we remove it from the political process, the better judges we're going to get," John said. "I don't like this talk of Democrats having a 'majority' on the Supreme Court because there's seven folks who are there to do the job independent of partisan consideration. If we can get to that point one way or another, that sure would suit me."
Most agree that the current system isn't working. But the fact is that Republicans currently hold veto-proof supermajorities in both chambers of the legislature. There's not much Cooper or legislative Democrats can do at this point to stop them.
In the meantime, McCullough worries that what the Republicans have done with the courts over the last few years "sends a message" to judges and potential candidates for the judiciary.
"The legislature wants you to rule a certain way," McCullough said. "If you rule a certain way, you'll be rewarded. If you don't, you'll be punished."