Courts races present tough choices for voters

"We spend a fair amount of time at gatherings at which frequently the first questions (are), 'Who are you? Why are you here? And why are we doing this?'" Sam Ervin IV told the students and faculty gathered in Elon Law School's library earlier this week.

North Carolina voters will choose four of the state's seven Supreme Court justices this fall, along with four judges for the 15-member state Court of Appeals and dozens of District Court and Superior Court seats across the state.

"These are the individuals who decide how the states laws affect North Carolinians on a daily basis," said Bryan Boyd, a law professor at Campbell University's Norman Adrian Wiggins School of Law.

While everything from traffic tickets to the death penalty, complex business litigation to neighborhood disputes depend on the decisions made by judges at different levels, voters are not always enthusiastic participants in judicial elections.

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In 2010, for example, voters faced a ballot similar to one that awaits them on Nov. 4. That year, 2.6 million voters cast ballots in the U.S. Senate campaign between Sen. Richard Burr and Secretary of State Elaine Marshall. More than 600,000 fewer – a 25 percent drop off – voted in the Supreme Court race that was on the same ballot. That 25 percent gap between the top partisan race on a ballot and the top judicial race is typical of courts elections in recent years.

"There's a lack of awareness about what these people really do, what their jobs are," said Brent Laurenz, executive director of the North Carolina Center for Voter Education.

Asked why voters who are already in the voting booth simply don't vote for judicial candidates, he said, "I think a lot of voters don't feel comfortable voting for these offices ... They see these races that they're not familiar with, and rather than just guessing, a fair number leave them blank and go home."

Ervin is running against Bob Hunter, a former Court of Appeals judge who was appointed to a vacancy on the Supreme Court earlier this year.

Asked about the problem of getting more people interested judicial elections, Hunter pointed out that the State Board of Elections has mailed a pamphlet with profiles of appellate court candidates to every voter in the state.

"I don't know that you can do very much more than to get their attention than send people a fairly neutral discussion of people's qualifications," Hunter said.

In a race like the one between Hunter and Ervin, both have sat on the state Court of Appeals and practice law. Ervin is a former member of the state Utilities Commission, while Hunter is a former chairman of the State Board of Elections.

Candidates for courts often campaign using certain buzzwords such as "fair" or "tough on crime," but they are prohibited from talking about how they would decide particular kinds of cases.

"They can't speak that openly about the issues that might be before their court," said Boyd.

That leaves many court races as civil, almost courtly affairs, with candidates eschewing the sort of bare-knuckled back-and-forth that marks legislative or gubernatorial races.

Both Ervin and Hunter took pains in recent appearances not to characterize their opponent's decisions.

Court races are nonpartisan, so a judge's party affiliation isn't on the ballot. Still, parties do endorse candidates, and judges' affiliations are well known both inside the court and in political circles.

"I never really saw the politics come out when I was there working," said Boyd, who served as a clerk to Associate Justice Robert Edmunds.

In fact, the court decides most cases unanimously, and splits along mostly party lines are rare.

There are some cases in which observers say party affiliation might be expected to – whether it does or not – play some part. For example, the court is currently considering whether recently drawn legislative districts comply with state constitutional requirements. Those districts were drawn by Republicans who might believe a court with more GOP jurists will be more likely to uphold those maps. More broadly, the court will have the last word on whether laws passed by the General Assembly, such as those providing for school vouchers or changing who controls an airport, comply with the state constitution.

None of that means that Supreme Court races can't take on aspects of more traditional campaigns.

For example, Ola Lewis, a Superior Court judge from Brunswick County, is seeking to unseat newly installed Chief Justice Mark Martin. During a recent candidates forum, she not so subtly criticized what she described as the slow pace of work on the court. She also blasted the raft of endorsements Martin cites, ranging from the North Carolina Republican Party to the AFL-CIO union.

"The question for the public becomes, who can we trust and who will do the right things," Lewis said, adding that she believe Gov. Pat McCrory appointed Martin chief justice this summer in order to "stack the deck" for the fall election.

Martin, though clearly irritated, brushed aside the criticisms.

"Maybe it is scandal, or maybe there is bipartisan consensus that one candidate is better qualified," said Martin, who has served on the court since 1999.

Generally, judicial races don't see quite as much campaign fundraising and spending as statewide partisan campaigns, such as the race for U.S. Senate or governor. Until 2012, most candidates for Supreme Court and Court of Appeals took part in a public financing system that limited how much candidates could raise and spend. Lawmakers have since eliminated that system, leaving candidates to raise as much money as they can from donors.

"The judiciary is the branch of government that really has to stand separate and apart from the political divide," said Eric Levinson, a Superior Court judge and former Court of Appeals judge who is running against Associate Justice Robin Hudson, who is seeking re-election.

Levinson and others running for judicial seats say that there is an awkward tension between needing to raise money in order to get a message out and maintaining a sense of impartiality, even from interests that may have supported a particular campaign.

That fundraising will show up on television among other places.

As for Hudson, she told students at Elon's Law School that the trend was troubling.

"It's not our job to protect anybody's political agenda," she said. "It is our job to administer justice without favoritism and to be fair and impartial to all.

"We don't go into a courtroom having people ask, 'OK, you're coming into court – are you Democrat of a Republican.'"

One race in which partisan endorsements may play an outsized role is the 19-candidate tussle to replace former Court of Appeals Chief Judge John Martin. He resigned in July, too late in the year for the state's normal primary process, which would have narrowed the field to two candidates, to work. 

"I'm pulling up the Board of Elections' voter guide, and I think and write about the law all day, but I'm having difficulty going through the 19 candidates," Boyd said.

In 2004, a similar retirement triggered an eight-way scramble that Supreme Court Associate Justice Paul Newby won with 22 percent of the vote. The fact that such a low plurality selected a member of the high court sent policymakers looking for the a solution. The General Assembly implemented so-called instant runoff voting, a system in which voters would indicate their first, second and third choices for a particular office.

When that instant runoff system was used in 2010, many voters found it confusing, so lawmakers later scrapped it.

"I think the outcome this year might dictate whether the General Assembly takes another look," Laurenz said.

Given the results from past years and the sheer number of candidates, it's possible the winner of the 19-way race to replace Martin will need less than 10 percent of the vote.

"If that turns out the be the case, folks are going to question the validity of the election," Laurenz said.

The state Republican Party has endorsed John Tyson, a former Court of Appeals judge. The state Democratic Party has thrown its support behind John Arrowood, also a former Court of Appeals judge. However, the Democratic Party's African-American Caucus has thrown its support behind Keischa Lovelace, a deputy industrial commissioner.

Three other Court of Appeals seats are on the ballot this year, although Donna Stroud is running unopposed for re-election.

Asked how voters might choose between candidates, particularly among those with appellate court experience, candidates often refer to specific decisions where they have differ with an opponent or the court's majority. But few voters take the time to read and understand such opinions.

Boyd said he looks for a Supreme Court and Court of Appeals candidates with a breadth of experience because the appellate courts handle a wide variety of cases. Laurenz said that both a candidate's biography and the answers to questionnaires allow voters to glean useful information.

While parties play a role in judicial elections, Laurenz said he believed the nonpartisan labels were an important signal to voters.

"The nonpartisan label is at least a nod to the fact these judges are not your everyday, ordinary politicians," he said.