North Carolina seeks to change its judges: rebalancing or constitutional overreach?
putting it in perspective
GOP lawmakers say moves, including redrawing districts to force incumbent African-American judges to run against each other, are necessary steps to recalibrate after a massive influx of people. Democrats, including Gov. Roy Cooper, call it an effort to 'rig the system.'
Asheville, N.C.—Buncombe County Chief District Judge Calvin Hill has practiced law in Asheville, N.C., for 25 years, rising from one of the city’s first black public defenders to a court appointment to winning three elections unopposed. He was elected to the county’s top judicial job in 2010.
But next year, when he’s up for reelection, the people of Asheville won’t be voting on whether Judge Hill keeps his job.
The lone African-American judge in the liberal mountain city, Hill will have to run in a newly drawn district composed largely of white rural and suburban Republicans, including many of the 55,000 locals who voted for President Trump last November.
“As an African-American who is now in the primarily Republican area, I don’t know how racial gerrymandering as it is applied to me – I don’t know how that’s not clear,” Hill says in a Monitor interview, noting that Gaston County, a similarly sized conservative enclave, was not touched. “From every angle, it feels like constitutional overreach.”
The new district is part of a broader effort by the part of state Republicans to redraw the state’s judiciary. GOP lawmakers say it’s a necessary step to recalibrate after a massive influx of people to the state's cities. Democrats, including Gov. Roy Cooper, call it an effort to “rig the system” – and point to the fact that the changes come after the legislature suffered a series of defeats in court, including a voter ID law that was declared unconstitutional.
In October, GOP lawmakers overrode Governor Cooper’s veto of a bill that eliminated judicial primaries in 2018. Other controversial steps include: reducing the size of the state Court of Appeals, preventing Cooper from appointing replacements to retiring Republican judges; forcing all state judges to identify party affiliation on ballots – becoming the first state in about a century to do so; and the new district boundaries, which in some cases force incumbent African-American judges to run against one another.
For Hill’s part, the legislature’s efforts to “double-bunk” some black judges to make them compete for the same seat smacks of cultural retrenchment – if not outright racial discrimination. Legal experts are concerned about the respect for rule of law. If this partisan turn is successful, they say, other states with rapidly changing demographics might turn to North Carolina’s model as a means for one party to hold on to power.
“I do think this transition [to partisan elections] will have impact and will entrench influence and will change the character of the North Carolina judiciary,” adds University of Illinois law professor Michael LeRoy.” “I think it’s a model for others to adopt – and it’s worrisome.”
“Sometimes [state houses] legislate really troubling laws ... that play to extremely skewed interests. And it often implicates core individual rights or liberties and often plays on prejudice. That’s where the role of the state court system is extremely important,” says Mr. LeRoy, author of “Open for Business: Illinois Courts and Party Politics.”
After North Carolina voters placed Republicans in power in 2010, lawmakers began redrawing the political landscape, turning the Old North State into Exhibit A for a national rise of hyper-partisanship and political payback.
North Carolina Republicans have characterized their sometime hardball tactics as tit-for-tat for when Democrats were in power. But the US Supreme Court ruled this year that the legislature created illegal racial gerrymanders when drawing election maps in 2011. And the high court sustained a lower-court ruling that the state’s 2013 voter ID law discriminated against black voters “with almost surgical precision.”
Legal experts such as LeRoy say the courts in North Carolina have simply served their constitutional purpose as “a brake on runaway legislatures.”
'We all stand for justice'
For at least one former North Carolina district court judge, the addition of partisan labels and the creation of racially-tinged judicial districts proves that the state is taking a “step in a bad direction.”
When Rep. Marcia Morey spoke to 270 district judges at a conference in October, it became clear to her that the reforms were not originating among sitting judges from either party.
“I got a standing ovation for saying that I didn’t know who in the room was Republican or Democrat, but that we all stand for justice,” says Representative Morey, a Democrat who served as a Durham County chief district judge for 16 years. “But even that reaction makes me worry that North Carolina has become the petri dish for the rest of the country: ‘Let’s throw it on the wall and see if it sticks and, if it does, let’s expand these concepts to other states.’ ”
To be sure, a handful of states still hang onto traditions of noting partisan affiliation on the ballot, though mostly for higher courts. But North Carolina is the first state since 1921 to add partisan labels to ballots, all the way down to the lowest courts.
Courtrooms as political battlefields
Critics see it as an invitation to outside money and influence, turning courts into political battlefields where robes are no longer black, but blue and red.
“It’s just politics gone crazy, really,” says Hill. “It makes it look like [the legislature has] got something in for the courts, because they have not been getting favorable rulings in the courts.”
At the same time, Democrats and Republicans agree that North Carolina’s court system, long a national model for how to administer justice uniformly across geography, needs reform.
Given the state’s massive population growth, especially in its cities, the state’s largest courthouse, in Charlotte, now represents a district 16 times as populous as the smallest district. In terms of resources and capacity, that means justice has become, in some respects, increasingly unequal, says Michael Crowell, a Carrboro lawyer.
Separation or 'sharing' of powers?
Republicans, too, may be right to say that the decision by a Democrat-controlled legislature to scrap political labels 15 years ago made it harder for Republican lawyers to win judgeships in liberal enclaves like Asheville.
Ohio Northern University law professor Scott Gerber, author of “A Distinct Judicial Power,” notes that, in the 1780s, North Carolina became one of the first states to constitutionally enshrine John Adams’s “Thoughts on Government” idea of independent judicial review. But Adams also noted that not only should the judiciary be a “check upon both” of the other branches, but also that “both should be checks upon that.”
“The work of the three branches overlaps considerably – it always has – and when you talk about separation of powers it’s really more sharing of powers,” says Mr. Crowell, who sat on a state court reform commission in the 1990s. But the GOP’s focus on court reform, he adds, “seems to be driven not by any effort to improve the courts but more of an effort to rein them in.”
'Shoe now ... on the other foot'
In part, after decades of what they have seen as court-packing by Democrats, the building resistance to party labels and redistricting is simply a result of “the shoe now being on the other foot,” says Carl Mumpower, who for years served as the lone conservative on the seven-member Asheville City Council. “This is an effort to right the balance, if you will, and to create an opportunity for fair representation.”
From the Republican point of view, he says, it is the courts, not legislatures, which need to be humbled. While courts concern themselves about discrimination and equal access, he argues, more fundamental ideals around citizenship, the immorality of intoxicants, and traditional gender roles are being lost.
Mr. Mumpower, however, adds that he does not view Hill as a judicial activist.
“I think a majority of Americans see Republicans as more attuned to our constitutional compass than they do Democrats,” says Mumpower, now the chair of the Buncombe County GOP. “If you don’t have a compass, you get lost.”
In that way, he adds, “I’m proud of the Republican Party for no longer pretending that the other side is sincere in their agenda. Their agenda is power and there’s no better example of that than Asheville, North Carolina.”
'A dot of blue ... in a sea of red'
Asheville is a mountaintop Berkeley, in some ways, rife with brewpubs and tourism, where most restaurants, like the famous Buxton Hall BBQ, sport “gender-neutral” bathrooms. It’s where bumper stickers suggest: “It is OK to have too much fun.” All the district court judges are Democrats. So are all the city councilors.
In its loud opposition to Raleigh’s rightward swing, Asheville has become a political punching bag.
“We’re basically a dot of blue in a sea of red – and that’s how it feels,” says Asheville blacksmith Zack Noble.
For his part, Hill says, “I’m not worried about my race” next year. “This’ll be my third election cycle,” says the judge, who fresh out of law school interned with the late Buddy Malone, a pioneering black lawyer who defended one of the activists arrested in the Greensboro Sit-In.
“I’ve never been challenged,” he says. “I’ve had a lot of Republican support ever since I became a judge, and the reason why is people in this county know who I am, they know my position on most things, they have watched me as a lawyer and a judge, and none of them are going to say that I go Democrat or Republican in my rulings; they cannot.
“The other reason I’m not worried is I’ve still got a law license,” Hill adds. “I can always go to work as a lawyer.”
Correction: This story has been updated to correct the name of Gaston County.