Raleigh, N.C. — The last time the North Carolina Supreme Court had a disagreement leading to a split decision, it was about, well, the North Carolina Supreme Court and the rather esoteric debate over what the word "election" means relative to judicial candidates.
Given that most of the state's highest court decisions are unanimous, why is this year's contest between incumbent Justice Bob Edmunds and challenger Superior Court Judge Mike Morgan on track to become a multimillion-dollar campaign, complete with a jarring attack ad, a presidential endorsement and an earworm-worthy jingle. Much of that money has come from undisclosed sources that may never be known or will ultimately be revealed after the votes are counted.
"The outside interest in the Supreme Court all revolves around redistricting, and that's unfortunate," said Bob Orr, a former Supreme Court justice who is still active in high-profile legal cases, including work for Gov. Pat McCrory. "It does the court a disservice and the candidate a disservice."
Redistricting is the practice of redrawing maps for Congress and state legislative seats every 10 years after the census. Although it's supposed to be a chance to rebalance voting districts to ensure that everyone's vote counts equally, it has long been embraced by lawmakers of both parties as a chance to tilt the partisan balance of power. North Carolina has a particularly rich history of controversial maps and contentious redistricting cases, and the maps drawn after 2010 are still being contested.
"Redistricting is the difference between having three Democrats from North Carolina in Congress and six or seven," said Steve Greene, a political science professor at North Carolina State University, pointing to the recent swing in North Carolina's political fortune.
Given that, "redistricting alone" would be worth the investment for those trying to influence the race, Greene said. That, at lest in part, explains why a poorly documented last-minute dump of cash during the two weeks before Election Day into judicial races has become something of a tradition in North Carolina.
The potential fruits of future redistricting decisions also help explain why President Barack Obama has recorded a message urging people to vote for Morgan, something that those contacted for this report called "unusual" and "extraordinary." Partisan tilt in Congress could one day hinge on what the North Carolina Supreme Court decides is a legally drawn congressional district.
Supreme Court races are, in theory, nonpartisan affairs. Candidate's party affiliations are not listed on the ballot, and justices frequently say they do their best to shed their partisan affiliations when on the bench. And those interviewed for this story described both candidate's "qualified" and "good choices." WRAL News will carry interviews with the two candidates next week.
But Morgan is a registered Democrat, and Edmunds is a Republican, and both candidates have the backing of their respective parties.
They also have the backing of outside groups loosely affiliated with those parties. According to Kantar Media data provided to WRAL News, there was already $750,000 in broadcast television advertising by Oct. 25 in this year's Supreme Court race, only 3 percent of which came from a candidate. That total is likely to jump significantly when new figures are reported on Nov. 1 and Nov. 8. According to the Brennan Center for Justice at the New York University School of Law, spending was poised to hit $1.4 million before a doo-wop-style jingle from a recently formed nonprofit with unknown backers entered the fray.
"We don't want judges to be be politicians in robes," said Alicia Bannon, senior counsel at the Brennan Center, which both tracks spending in state judicial elections and encourages states to limit the influence of campaign money on the courts. "They are supposed to play a different role in our democracy than legislators or governors."
Like any other candidates, those running for Supreme Court have to raise money in order to travel, buy yard signs, air ads and pay for other campaign expenses. Judicial candidates also could find themselves accepting donations from interests that may one day have a case before their institution. For example, in recently filed disclosures, Morgan's campaign reported receiving $1,000 from a PAC connected to a large law firm, and Edmunds reported receiving $4,100 from a committee connected to BB&T.
Far more troubling, Bannon said, is the fact that the source of money behind ads both praising and tearing down Edmunds is unknown aside from links to vaguely partisan groups. For example, the document trail connected to N.C. Families First, which aired "The Snake" ad critical of Edmunds' opinion in a redistricting case, received at least $1 million from another nonprofit called Make North Carolina First. That second group's board includes real estate developer Adam Abram and businessman Dean Debnam, both frequent Democratic donors, and Jay Reiff, a political operative who has worked for a number of Democratic figures, including former Gov. Mike Easley.
North Carolina at one point had a public financing system that allowed judicial candidates to raise a large number of small-money donations in exchange for taxpayer support. That system was ultimately struck down as unconstitutional. That's in part due to a provision that bailed out candidates who faced an onslaught of outside money, which was seen as allowing taxpayer dollars to favor one candidate over the other.
Even less is known about those behind Fair Judges, the group praising Edmunds.
Among those spending on behalf of Edmunds is the North Carolina Chamber, a group of the state's biggest businesses.
"The judiciary has the power to dramatically impact North Carolina’s business climate," said Kate Payne, a spokeswoman for the group. "States with liability-restraining courts enjoy better business climates and growth potential. The ad speaks for itself."
In fact, the ad emphasizes Edmunds' tough-on-crime credentials as a former prosecutor rather than emphasizing his business-law experience. It's also worth noting that the N.C. Chamber focuses a lot of lobbying firepower on the General Assembly, whose districts frequently face scrutiny by the court.
Of the four times the court has split in 42 decisions this year, none has had much to do with business law. Two were criminal cases where one or two justices broke with their colleagues. A third decision settled a spat between McCrory, a Republican, and the Republican-held General Assembly over appointments to environmental commissions, and again, only one justice, Paul Newby, broke with his colleagues.
The last of the four cases was a split over whether lawmakers could allow judges to run in retention elections rather than face opponents. Edmunds sat out that decision – saying he choose to recuse himself because he believed "participation would give rise to an appearance of impropriety even if my participation was permissible under the Code of Judicial Conduct" – paving the way for a 3-3 tie.
"State supreme courts are the final word on questions of state law," Bannon said.
In addition to life and death criminal justice issues, they settle differences over such things as environmental regulations, consumer rights and family law matters.
"These are high-stakes courts, and the selection of judges is a high-stakes decision," she said.
Observers closer to the ground in North Carolina say that, in view of the justices' generally simpatico views on a wide range of matters, it's only a handful of cases in which outside spenders are really interested.
"As long as we elect Supreme Court justices, significant amounts of money will be spent on their campaigns," said John Hood, a longtime conservative commentator and president of the John William Pope Foundation.
Hood suggests that, in addition to redistricting, money pouring into the Supreme Court race has to do with school choice, including whether taxpayer-supported vouchers to support students going to private school are unconstitutional.
He also said that Obama's endorsement of Morgan may be aimed at ensuring African-Americans voter turnout and attention to down-ballot races in Wake and Mecklenburg counties, both large population centers. Morgan is one of seven African American candidates running statewide, and may be the most prominent even compared to Linda Coleman, who is running for lieutenant governor, and Dan Blue III, a candidate for state treasurer.
"This is an attempt to turn Hillary Clinton's lead, whatever size it is, into wins in down-ballot races," Hood said.
But by and large, he said, it is redistricting driving money into the race.
A final reason why outside spenders may be attracted to the Supreme Court race: a little goes a long way. Voters generally don't know a ton about the candidates. While Edmunds is a veteran appellate judge, he's not a household name, and during his time on the Superior Court bench, Morgan's highest-profile case may have been a now-shelved tilt over the state's voter ID law.
That means ads that quickly build name recognition – like 2012's banjo ad or this year's doo-wop ad – can go a long way to influencing voters who may only know a name when they head into the ballot booth.
"It doesn't take a lot of money to shape the race," Bannon said.