'Ramifications are substantial.' How Republicans gained a lasting grip on the NC Supreme Court

North Carolina Republicans elected a new U.S. Senator and captured a supermajority in the state Senate. They strengthened their majority in the state House and expanded the number of GOP sheriffs in North Carolina’s 100 counties.

But the biggest and longest-lasting impacts of Tuesday’s elections will be felt at the state Supreme Court, where Republicans flipped two Democratic-held seats to earn a 5-2 majority that will last until at least 2028.

State lawmakers and U.S. House members elected Tuesday will have to face voters two more times before Democrats even get a chance to retake the state’s highest court. In that time, conservative justices will have a chance to weigh in on a multitude of issues, including redistricting, voting rights, the balance of power between the executive and legislative branches and social issues, including, potentially, abortion rights.

It will also decide cases few can imagine at the moment. Who, for example, foresaw a global pandemic — one with all kinds of legal implications — when electing Supreme Court justices in 2012 or 2014?

“The legislature will have a different makeup next time. You’ve got to think about, unfortunately, before the votes are even counted, who is going to run and who is going to do what in the ’24 election,” said Dallas Woodhouse, former executive director of the North Carolina GOP. “Republicans will now control the Supreme Court through the next presidential election – not the one coming up, but the next one.”

North Carolina elects Supreme Court justices to eight-year terms. Before the 2020 elections, Democrats held a 6-1 majority on the court. Entering Tuesday, the court was a 4-3 Democratic majority after three GOP victories in 2020, including Paul Newby's 451-vote victory over then-incumbent Chief Justice Cheri Beasley.

The five Republican justices who will sit in the next court were elected in either 2020 or 2022. A GOP justice won’t face reelection in 2024 or 2026. A single incumbent Democrat will face the voters in each of those elections, giving Republicans a chance to take the entire court before a current Republican justice must begin campaigning.

“The ramifications are substantial,” said former state Sen. Floyd McKissick, who is the first vice chair of the North Carolina Democratic Party. “They are profound with the issues in front of the court and what it could mean in terms of rights.”

GOP’s campaign focus

Republican Trey Allen defeated incumbent Democratic Associate Justice Sam Ervin IV in one race Tuesday. Republican Richard Deitz defeated fellow appellate court judge Lucy Inman in the other race, replacing outgoing Democratic Justice Robin Hudson. Allen and Dietz each received more than 52% of the vote, earning a higher vote share than U.S. Rep Ted Budd did in his successful U.S. Senate bid.

Republican candidates also swept four appellate court races, two years after sweeping five races on the 15-member court. GOP judges now hold 12 of 15 spots in the appellate court, which hears cases in three-member panels.

With control of the court on the line, spending in the two Supreme Court races exceeded $15 million from the general election candidates and political actions committees, The Associated Press reported before the election. Two Super PACs — one on each side — spent a combined $8 million, while the North Carolina Chamber spent more than $1.3 million in support of the Republican candidates. The money largely went to television and digital ads.

There has been a concerted effort on the part of the GOP to put more resources and attention on the state Supreme Court in recent years, according to Republican strategist Jordan Shaw, a former staffer of U.S. Sen. Thom Tillis.

“For a long time, judicial races were forgotten and there was no campaign apparatus around them,” Shaw said. “Voters would go into the ballot box and they were in the dark about who the candidates were. You can’t vote for someone you don’t know. There was a recognition by Republicans in North Carolina that we can have majorities in the legislature and a lot of that work gets undone by liberal Supreme Court judicial activists. It became apparent that we had to treat those Supreme Court races with the same level of importance that we treat everything else.”

Republicans have not hid their disdain for the Supreme Court’s Democratic majority and Justice Anita Earls, in particular. The court, in a 4-3 decision along party lines, rejected the legislature’s congressional map and drew their own districts with the help of three experts, including former Republican Supreme Court Justice Bob Orr, who split with his party over its embrace of President Donald Trump. Democrats won seven of 14 U.S. House races on Tuesday, likely three or four more seats then the party would have won under the lawmakers’ maps, which are not subject to a gubernatorial veto.

The court invalidated successful constitutional amendment elections on voter identification and lowering the maximum state income tax level because the legislature that put them on the ballot was later ruled to be an unconstitutional racial gerrymander. Earls wrote, in the majority opinion, that “what makes this case so unique is that the General Assembly, acting with the knowledge that 28 of its districts were unconstitutionally racially gerrymandered and that more than two-thirds of all legislative districts needed to be redrawn to achieve compliance with the Equal Protection Clause, chose to initiate the process of amending the state constitution at the last possible moment prior to the first opportunity North Carolinians had to elect representatives from presumptively constitutional legislative districts.”

Just days before the election, the court — again led by Earls — ruled that the state had to transfer hundreds of millions to public schools over objections by lawmakers that the legislature is responsible for spending money and funding public schools. Critics of the decision in the Leandro case hope the new court will reconsider the decision.

The court has not issued a final ruling on the congressional redistricting case, though it heard arguments in October. The court is scheduled to release opinions in December. The court is expected to hear a long-running case on the restoration of voting rights for felons in 2023.

Republicans some of the rulings to animate their voters on the campaign trail.

“When we were at events, we spent more time, it seemed like, talking about how important the judicial races were and really talking about the importance of where are with the Supreme Court,” Republican House Speaker Tim Moore said Wednesday.

He said the Republicans’ court majority is “good, not just for Republicans. That’s good for everybody that wants tough laws when it comes to sex offenders, that wants to ensure the rights of the people were upheld, that the constitution is respected and, importantly, that the balance of power between the executive branch and the legislative branch is kept in the proper place.”

Democratic Gov. Roy Cooper’s oft-used veto power was weakened by Tuesday’s results. Senate Republicans have a veto-proof supermajority. Moore is just one vote shy of a veto-proof supermajority in the House. The other avenue that Democrats and liberals have used to thwart moves made by the GOP-controlled legislature is through the court system. That, too, is likely to be less effective moving forward.

How much the court changes, Earls told WRAL News, is up to the new conservative majority.

“Are we going to truly be constitutional conservatives or are we just going to be at the whim of how elections turnout?,” Earls said. “I really believe it used to be that what we valued was consistency in our courts, was equal justice and was a vision of judges who hear both sides and come up with wise decisions that is best for everyone. If that’s what we’re doing, everyone can do that no matter what your party is. If instead what we’re doing is wielding power based on our own political views, then it’s a whole different notion of justice.”

Earls said the Democratic majority didn’t overturn prior precedents in its decisions. She said fealty to stare decisis — or fidelity to previous decisions — and the notion of equal justice is what is at stake moving forward.

“If we don’t uphold that, how your case is decided depends on what year you bring your case,” Earls said. “Before you get one outcome, after you get another outcome. If that’s the legal system we have, then it’s not equal anymore.”

Redistricting, abortion

Among the first impacts of the change in the court’s majority will be seen in the next congressional redistricting where the conservatives are likely to allow legislative maps to stand, no matter their expected partisan result.

The court-imposed congressional map used in the 2022 election was a one-time map, meaning the Republican legislative majority must redraw it before the 2024 election. Redistricting is not subject to a governor’s veto in North Carolina, and the U.S. Supreme Court has already ruled that it will leave partisan gerrymandering cases to states.

In his dissent in Hall v. Harper, the redistricting case decided in February, Newby wrote that the majority decision “violates separation of powers by effectively placing responsibility for redistricting with the judicial branch, not the legislative branch as expressly provided in our constitution.”

A new map is likely to severely hamper the long-term election prospects of Congressmen-elects Wiley Nickel in the Triangle and Jeff Jackson in the Charlotte area and two-term U.S. Rep. Kathy Manning in the Triad.

“This court is going to give great deference to anything and everything the General Assembly may enact,” Orr said. “It’s not a particularly favorable landscape for those that want to challenge acts of the General Assembly.”

Such deference, Democrats warn, could extend to reproductive rights. The U.S. Supreme Court overturned the landmark Roe v. Wade decision, which guaranteed women the right to an abortion, allowing states to make their own laws and rules about access to abortion. Abortion is legal in North Carolina until 20 weeks. If state lawmakers were to reduce that timeframe — or eliminate it — the court is seen as unlikely to interfere. Berger and Moore have said they don’t support making abortion completely illegal in the state.

“The General Assembly is more poised to do so and courts are more poised to sanction whatever laws might come forward that might limit women’s reproductive rights,” said McKissick, the state Democratic Party official.

Democrats, he said, should take a page from Republicans and do a better job of “elevating in the minds of voters the importance of the decisions made by the state Supreme Court and the Court of Appeals and how it impacts their lives.”

“So many of the rights you take for granted can be stripped away if you have the wrong judges on the court and the wrong philosophies that are carrying a partisan crusade,” said McKissick, who is also a Durham lawyer.

Voter awareness

While Democrats may have prevented a “red wave” in Tuesday’s election with their focus on abortion rights, particularly in North Carolina’s urban counties, the Republicans saw the results as a rebuke to the Democratic-majority high court.

“That vote was a complete repudiation of the Anita Earls-led leftward tilt of the state Supreme Court,” Senate leader Phil Berger said the day after the election. Berger’s son is a Republican member of the state Supreme Court, who wrote the dissent in the recent Leandro decision. “It’s something that should be clearly read by the public and should be clearly read by others. That is not what the people in the state of North Carolina want to see in terms of the Supreme Court.”

An alternative reading is that the judicial races — which garner far less attention than top of the ticket Senate or presidential races — are a near-perfect substitute for generic ballot elections. Dietz and Allen fell within 8,400 votes of each other. The Republicans in the four appellate court races garnered between 52.4% and 54.6% of the vote. In 2020, the Republicans in the five appellate court races won between 51.1% and 51.9% as did one of the Supreme Court races. In the two others, the higher profile chief justice race and one by Justice Berger, the Republicans earned just a tick less: 50% and 50.6%, respectively.

Earls, a former civil rights attorney who argued several high-profile voting rights cases and founder of the Southern Coalition For Social Justice in Durham, may be a prominent name in political circles, but she’s not necessarily a household name in most North Carolina homes.

“This was pretty much a generic vote for Republican judges and justices down the ticket,” Orr told WRAL News. “The broad electorate is more comfortable electing Republican judges. I dare say if … some pollster asks people about their evaluation of Anita Earls’ opinions, most voters are going to say, ‘Who is Anita Earls?’”

Voters will surely be more aware of Earls come 2026 when she is up for reelection, a race that may attract even more outside money despite the fact that the court’s majority will not be at stake.

How Earls and fellow Democrat Michael Morgan reached the court is instructive. Morgan won 54.4% of the vote in 2016, the last time Supreme Court elections did not include partisan labels on the ballot. Earls was elected in 2018 with less than 50% of the vote as two candidates listed as Republicans appeared on the ballot after the General Assembly canceled judicial primaries that year. Raleigh attorney Chris Anglin changed his registration from Democrat to Republican shortly before running for the Supreme Court. He was able to remain on the ballot and took 16% of the vote, no doubt helping Earls’ election.

Since then, judicial primaries have winnowed down the field to one Republican and one Democrat on the November ballots. And with Republicans winning the top-of-ticket races for senator and president, GOP judicial candidates often have an easier path.

Partisan elections

Partisan identification was removed from the ballot for Supreme Court races after the 2002 election when Republican candidates won convincing victories in the two seats. Democrats controlled the General Assembly at the time.

Michael Crowell, the former executive director of North Carolina’s Commission for the Future of Justice and the Courts, said there was little change in judicial elections during the 1990s when Democrats controlled the state. Many judges were first appointed and rarely faced electoral opposition after their first run, he said.

“It was a cozy, secure system. A nice system of elections until we actually started having elections,” Crowell said. “Beginning in the ’80s and ’90s, when North Carolina started becoming a two-party state, that’s when the periodic manipulation started.”

The parties have flipped positions on a merit system for choosing judges, partisan labeling and public funding based on their particular political standing at the time, Crowell said.

Republicans point to increased participation in judicial elections as evidence of the positive impact of partisan labeling on the ballot. In 2016, more than 4.7 million North Carolina voters cast a ballot in the presidential election. More than 4.4 million voted in the partisan Court of Appeals race. That number fell to 3.9 million in the nonpartisan Supreme Court race — just 83% of those cast in the presidential election.

In 2020, the vote total in the chief justice race equaled 97.5% of the votes cast in the presidential election. On Tuesday, the vote totals between the U.S. Senate race and the first Supreme Court race were within 21,000 of each other.

“If you have partisan elections, then you’re going to have people elected for being partisan,” Crowell said. “I’m a very strong believer in not having partisan elections. But I think, given the world we’re in these days, that’s not going to change anytime soon. I fear that there’s going to be more money spent, the ads are going to be uglier and even more misleading, and it’s going to do considerable damage to the reputation of the court and the standing of the court in people’s minds.”

There may be one, somewhat unexpected, outcome that results from the Republicans gaining control of the court: Fewer highly partisan issues making it to the Supreme Court. Conservatives, who are winning victories in the legislature, may also have less desire to pursue legal remedies. Liberal groups, facing a court expected to rule against them, have less incentive to bring cases.

“They may look at the court and say, you know, we got a real long shot here at having any success and we don’t want to make bad law, which if you give them the opportunity to write on a particular issues, you run the risk of not only losing the case, but having precedent set that is going to harm you in other types of litigation,” Orr said. “I think we’re going to see less of these kinds of hot-button issues going to the courts.”