NC courts face perception of partisanship

Moments after the order was issued, Republican leaders in the state Senate issued a statement admonishing the court, pointing to the fact that the majority of its justices are Democrats.

“Democrats on the Supreme Court want districts that elect more Democrats, so they’re blocking every election in the state until they get their way,” Sen. Ralph Hise, R-Mitchell, said in the statement.

The redistricting challenges and the so-called Leandro case, an ongoing saga over state educational funding, have increasingly drawn allegations of politics on the bench. And for years, some observers say, partisanship in the judiciary has been on the rise, eroding confidence in judicial impartiality.

There’s always been some level of partisanship in the judiciary, former state Supreme Court Justice Bob Orr said in an interview. But in the past, it was rarely publicly expressed.

“The difference I see now, which probably reflects the political changes in our society, is that partisanship seems to be more overtly done,” Orr said.

Political maneuvering that led to legislative changes in how judges and justices are chosen is part of the perception of partisanship on the bench.

Voters elect judges in North Carolina. Beginning in 2004, North Carolina judicial elections were nonpartisan. Political party designations for state and local judge candidates didn’t appear on ballots, and there were no partisan primaries for judicial seats, unlike races for legislative or executive offices.

The move to nonpartisan judicial elections came after Democrats lost control of the state Supreme Court in 2000. Democratic lawmakers removed judges’ party affiliations from ballots, hoping to benefit their party’s candidates. However, the parties often endorsed candidates, so voters generally knew which way a judge might lean.

More than a decade later, over Democratic objections, GOP lawmakers restored partisan affiliations on the ballot for state Court of Appeals and Supreme Court candidates, beginning in 2016. In 2018, partisan labels were added for lower-court races, over a veto by Democratic Gov. Roy Cooper.

In recent years, as high-profile political cases have appeared before the courts, allegations of judicial partisanship have increased. Such assertions are also clouding cases that aren’t overtly political.

Take the Leandro case, which centers on a battle for $1.7 billion in educational funding.

The Leandro lawsuit was first filed in 1994 by families in five low-wealth counties and those counties’ school boards against the state. It alleges that schools weren’t sufficiently funded.

For many years, the case wasn’t terribly political. The state Supreme Court that ruled in the plaintiffs’ favor in 2004 was 6-1 Republican. Howard Manning, the judge appointed by the Supreme Court to oversee its ruling, was a Republican, while the legislature he sought to influence was led first by Democrats and then by Republicans.

Orr, the Republican former justice, wrote a second ruling on behalf of the majority in 2004, ordering the state to remedy shortcomings.

“There were obviously differences between the Democrat and Republican perspectives on public education, generally,” he reflected, but “I don’t think we ever viewed it as a partisan case."

That changed this year, when Democratic Judge David Lee, Manning’s successor, ordered the state to turn over $1.7 billion for a settlement agreed to by the parties in the case. Republican legislative leaders were quick to condemn Lee, calling him “unelected” and “unhinged.”

Orr said that ruling “was completely inappropriate in a variety of ways.”

The petitions panel generally remains anonymous. But in this case, the judges signed the 2-1 ruling, with the two Republican judges, Jefferson Griffin and Chris Dillon, echoing many of the arguments made by Republican lawmakers.

“It probably is Exhibit A on the more overt partisanship of the courts these days,” Orr said. “Griffin and Dillon knew that the panel makeup was going to be different the next day, which probably is why they hot-boxed the order the way that they did.”

Through a spokesperson, Griffin and Dillon declined to comment. Chief Justice Paul Newby and Chief Court of Appeals Judge Donna Stroud also declined to comment.

Meanwhile, partisan politics in the judiciary are entering the debate over redistricting.

After the three-judge panel declined to stay the beginning of candidate filing under the new maps, a different Court of Appeals panel reversed that decision and issued the stay just as filing was set to begin Monday. The vote was not made public. The panel included two Democrats and one Republican, according a court source.

The challengers appealed that ruling Monday night to the state Supreme Court, asking justices to reinstitute the stay of candidate filing. The high court agreed, staying candidate filings and delaying all elections from March 8 to May 17, to allow the case to be heard.

The court’s order Wednesday evening did not offer a vote count. The court is made up of four Democrats and three Republicans, including Newby.

Orr said that, in petition cases like this, the court takes a majority vote. For the challengers as well as Democratic critics of the new maps, that’s good news, assuming justices rule along party lines.

Democratic Justice Robin Hudson is stepping down in 2022. If Republicans can take her seat, they’ll regain the Supreme Court majority they lost in 2016. That could spell longer odds for the redistricting challengers. So, Democrats are hoping the case would be allowed to move forward now, while Republicans are hoping to delay it to the next election cycle.

Since the U.S. Supreme Court has already said it won’t take up partisan redistricting cases, state courts are the only venue for those challenges.

“Everybody wants an independent judiciary,” Orr said. “They just want to make sure their side has a little bit of an advantage.”