Senate gears up on judicial redistricting

Posted November 8, 2017 7:08 p.m. EST
Updated November 8, 2017 7:49 p.m. EST

— Experts raised questions Wednesday about the constitutionality not only of proposed new judicial districts in North Carolina, but the state's current ones as well.

Years of inattention, preceded by decades of political tinkering, left the districts North Carolina uses to elect judges with unbalanced populations in faster-growing urban areas. That opens them to constitutional attack, a pair of attorneys with a long history in state government told state senators gathered to discuss controversial judicial reforms.

The state addressed this issue years ago in Wake County, but similar issues linger in Mecklenburg County and, potentially, in other areas, according to Michael Crowell, the former executive director of North Carolina's Commission for the Future of Justice and the Courts, and Gerry Cohen, an attorney who worked with the legislature for more than 30 years.

State Rep. Justin Burr, R-Stanly, has repeatedly made similar arguments for his proposed new judicial maps. Even Democrats who are wary of another effort from the Republican legislative majority to tinker with the judiciary concede changes are needed. But there was a catch Wednesday for GOP legislators eager to pass some sort of reform: Burr's proposal could be open to constitutional attacks as well, Cohen and Crowell said.

Those maps, laid out in House Bill 717, double-bunk a number of sitting black judges and could potentially be challenged under the Voting Rights Act, Cohen said. Lawsuits pending now regarding partisan redistricting could change the rules, opening the map to that line of legal challenge, he said. Legislative Democrats have said repeatedly that the new districts were drawn to favor Republican judicial candidates.

Crowell said the way Burr's proposal splits counties at the district court level could be a problem, since people would suddenly be appearing before judges they no longer had a say in electing. But he also said existing districts, drawn while North Carolina was under Democratic Party rule, were changed over the years "more often than not ... for political purposes."

Exactly where the issue goes from here remains to be seen. There has been talk in the Senate of moving to an appointment system instead of electing judges, a change that would require a statewide referendum to change the North Carolina Constitution. The three co-chairmen of a select committee appointed to review judicial reforms were unwilling to predict any outcome Wednesday, saying they plan a half-dozen meetings between now and January, when the General Assembly comes back into session.

The House already has passed House Bill 717. The Senate committee heard presentations on the bill and on state judicial history for about four-and-a-half hours Wednesday.

The GOP majority voted earlier this year to make judicial elections in North Carolina partisan again, passing the measure over Democratic Gov. Roy Cooper's veto. Burr's redistricting proposal took judges, prosecutors and others in the justice system by surprise. Then the General Assembly voted, again over Cooper's veto, to cancel next year's judicial primaries, which means judicial candidates will run all at once, but with party labels by their names.

When some howled over the move, the powerful rules chairmen of the House and Senate rolled out a bill to force judges to run for re-election every two years instead of serving the eight-year terms appellate and Superior Court judges serve now and the four-year terms in place for District Court judges.

Some saw it as an attack on judicial independence. Representatives from judicial groups asking the legislature to slow down redistricting and other reforms split Wednesday on whether that was a fair characterization.

"I don't think the two-year-term bill could be viewed as anything else," Judge Joe Buckner said after the committee hearing.

Buckner represented the North Carolina District Court Judges Conference at Wednesday's meeting. Judge Joe Crosswhite was there for the state's association of Superior Court judges and said "just about any judge" is against two-year terms, which would make them "a full-time politician."

But he didn't characterize the legislative majority's maneuvers as an attack.

"I think the judges, the way they look at it, is it's up to the legislators to decide (how the system is structured), and judges will follow suit," Crosswhite said.

During his presentation, Buckner stressed the importance of logistics, saying Burr's map would displace roughly 40 percent of experienced judges. These district lines don't just lay out election boundaries but determine the district attorneys, law enforcement, court clerks and social workers that judges deal with on a regular basis.

Splitting up effective teams for political gains would "disrupt the mechanism," potentially causing backlogs in district courts that deal with the vast majority of legal filings in the state, including complicated family violence and child endangerment cases, Buckner said.

"We'll find a judge," he said, "but will we find the right court communities?"