North Carolina’s Attacks on the Courts Lead to Fewer Judges of Color

State and federal courts are incrementally cracking down on the North Carolina General Assembly’s voter suppression efforts. Federal courts have ruled that legislators intentionally reduced African American voters’ access to the ballot when they crafted the state’s wide-ranging 2013 voting bill and when they redrew legislative election districts in 2011.¹ The North Carolina Supreme Court could soon rule in several cases that could affect voting rights.²

GOP politicians have harshly criticized these court rulings and have responded by proposing drastic changes to the court system that could get their preferred judges on the bench.³ Legislators have passed bills that limit Gov. Roy Cooper’s (D) authority to appoint judges.⁴ They shrank the size of the North Carolina Court of Appeals to prevent appointments by the governor,⁵ and they recently canceled the 2016 judicial primary elections.⁶ In a series of laws in recent years, legislators have made North Carolina’s judicial elections partisan.⁷ Legislators have waged war on the judicial branch.⁸

The state’s African American judges have found themselves caught in the crossfire of these political battles. People of color are already severely underrepresented in North Carolina state courts,⁹ and recent changes could be making the problem worse.¹⁰ Bills pending in the legislature could deepen the disparity and further entrench a conservative, white elite in the state’s judiciary. At a moment of deep divisions and doubts about American democracy,¹¹ political decisions that could eliminate the few judges of color would only heighten the mistrust among communities of color with respect to the justice system and the political process.¹²

Concerns that the legislature’s changes to the judiciary could lead to fewer judges of color has not slowed down their efforts to increase their power over the courts. The General Assembly will soon consider a judicial redistricting bill that gerrymander judges and prosecutors, as well as a constitutional amendment that gives legislators the sole power to choose judges.¹³

The proposal for judicial redistricting would likely lead to less diversity on the bench. The bill passed by the state House of Representatives would put judges of color in districts with other incumbents, making it more difficult for these judges to keep their seats.¹⁴ Judge J. Calvin Hill, for example, is the only black judge in Buncombe County, which includes the mountain city of Asheville, and an early version of the bill placed him in a district with another incumbent.¹⁵ “If you look at the lines in Buncombe County as it relates to me as an African-American, there’s no question the race issue has come into play,” Judge Hill said.¹⁶ He said the new district “disenfranchises the large part of the African-Americans who would be a voting bloc for me.”¹⁷ Judge Hill moved to Asheville to become a public defender in 1995, after the local legal community sought a black lawyer for the position.¹⁸ Judge Hill has talked about alternative sentencing when campaigning,¹⁹ and he recently expressed concern about a for-profit company hired by the court to process low-level misdemeanors and whether defendants could afford its fees.²⁰

In addition to gerrymandering, legislators also plan to move forward with their ultimate power grab: a constitutional amendment taking away the voters’ power to choose judges and giving it to the legislature. The greatest threat to judicial diversity may be handing over the reins of the judiciary to a legislature that has suppressed black voters.

In recent years, North Carolina has become the epicenter of the fight against voter suppression. The courts have protected voters’ rights, and judges of color have played a key role.²¹ Proposals that would eliminate the voices of judges of color cannot be interpreted as mere coincidence but rather as part of a broader effort to eliminate the political power of people of color in North Carolina.

Overturning the voters’ choice in 2016

A conservative North Carolina Supreme Court justice was up for re-election in 2016, and control of the court was also up for grabs.²² But in 2015, the legislature passed a bill to change state Supreme Court elections from open races to retention elections, in which voters only decide whether an incumbent should remain in office.²³ Even if voters had rejected the conservative incumbent and the Republican governor, the lame-duck governor would have appointed a replacement.²⁴ A liberal candidate would not even have had the chance to run.²⁵ State courts struck down the bill.²⁶

Voters elected Justice Mike Morgan, one of the two black justices on the North Carolina Supreme Court, and this resulted in a new 4-3 liberal majority.²⁷ Just days later, some conservatives suggested a “court packing” scheme, in which the legislature would create two new seats on the court and allow the lame-duck conservative governor to fill them.²⁸ The proposal was a blatant attempt to overturn the results of the 2016 election, and legislators backed down after a public outcry and a threatened lawsuit from the state NAACP.²⁹

The legislature did, however, chip away at the governor’s authority to appoint judges.³⁰ It also passed a “court unpacking” bill to shrink the court of appeals by three judges, in advance of three Republican judges reaching the mandatory retirement age.³¹ Judge J. Doug McCullough, a Republican, resigned in protest.³² This allowed the governor to appoint his replacement before the bill went into effect.³³

Former North Carolina Supreme Court Justice Bob Orr, also a Republican, has criticized these power grabs and suggested they are motivated by lawsuits over the 2011 redistricting maps.³⁴ Justice Orr said these bills are intended as a message to judges that they should rule the way that politicians want.³⁵ Some North Carolina legislators want judges on the bench who will not strike down the maps that clearly favor their political party.

More campaign cash and partisanship in judicial elections

In the late 1990s, judicial elections around the country were seeing an influx of a lot more campaign cash.⁶³ Groups backed by big business, including the Chamber of Commerce and the Koch brothers, began to spend millions to elect their preferred judges.⁶⁴ North Carolina’s governor and legislature responded by creating a public financing program for appellate court candidates, which offered almost $250,000 to state Supreme Court candidates who qualified by raising a certain amount in small contributions.⁶⁵

North Carolina’s voters, its legal community, and judges from both parties supported the public financing program.⁶⁶ Supporters pointed out that it opened up avenues to the bench for candidates who might otherwise lack connections to wealthy donors.⁶⁷ For years, the state spearheaded the movement to keep money from flooding into state judicial elections.

Two black justices were voted off the state supreme court just before the public financing program was created, but judges of color saw great success under the public financing program.⁶⁸ According to a 2011 report from North Carolina Voters for Clean Elections, all four black judges on the appellate courts at the time were elected with public financing.⁶⁹ Justice Cheri Beasley, for example, was the first woman of color elected to statewide office in North Carolina. Justice Beasley said that she lacks the connections that many candidates rely on for financial support.⁷⁰

A report from the American Bar Association warned that “privately funded judicial campaigns may limit access to judicial office for all candidates, of color or otherwise, who derive their support from less affluent communities.”⁷¹ The Institute for Southern Studies examined the 600 largest donors from North Carolina in the 2016 presidential campaign and the state’s most expensive campaigns for Congress, and it found that almost all of them—95 percent—were white.⁷² But when Republicans gained a majority in the state legislature in 2010, public financing became a primary target.⁷³ Art Pope, a millionaire-donor-turned-governor’s-budget-director, played a key role in eliminating the program.⁷⁴ After defunding public financing, the legislature repealed the program in the 2013 anti-voting bill, a coordinated effort to close avenues to political power for black voters and candidates.⁷⁵

In 2014, the North Carolina Supreme Court elections cost candidates more than $6 million combined, a record sum.⁷⁶ The Republican State Leadership Committee, a big-business funded entity that helped legislators gerrymander the state’s legislative elections, spent more than $1 million alone to back their preferred candidate.⁷⁷

The General Assembly has also made judicial elections partisan, after getting partisanship out of judicial elections more than a decade ago by switching to nonpartisan elections.⁷⁸ A 2015 op-ed noted that North Carolina is the first state in nearly a century to switch from nonpartisan to partisan election of judges,⁷⁹ and a 2012 editorial from the The New York Times noted that a system of choosing judges in expensive, partisan elections “discourages many highly qualified lawyers from aspiring to the bench.”⁸⁰

North Carolina ended partisan judicial elections at the same time the public financing program was created.⁸¹ At the time, the handful of state supreme courts that were elected in partisan races had seen an explosion in campaign cash.⁸² The legislature is now rolling back the two reforms intended to keep this trend out of North Carolina.

To make matters worse for judges, legislators have proposed a constitutional amendment that would reduce their terms in office to just two years, forcing them to spend more time fundraising with wealthy donors.⁸³ North Carolina judges would serve the shortest terms in the nation, and some are not pleased with this suggestion.⁸⁴

These changes to judicial elections open the door to more inequity in the system and a marginalization of candidates lacking the connections to networks that often preference wealthy, white candidates.

Gerrymandering judges

Gerrymandering in North Carolina now reaches into all levels of government—from congressional elections to school board races.⁸⁵ In 2011, the General Assembly redrew the districts for elections to Congress and the state legislature. Federal courts ruled that the legislature discriminated against black voters by “packing” them into as few districts as possible.⁸⁶

This did not stop the legislature’s redistricting of other elections in ways that advantage the Republican Party. In 2015, the legislature gerrymandered the city council of Greensboro and the Wake County commission in Raleigh, though federal courts struck down these changes as unconstitutional.⁸⁷

The legislature has carved up districts in urban areas that tend to favor Democrats.⁸⁸ Rep. Pricey Harrison (D), represents Greensboro in the legislature said in an interview that in the judicial gerrymandering bill, “bluer urban counties are carved up in ways that would elect more Republican judges, while similarly sized, red-leaning counties remain whole.”⁸⁹

Rep. Burr, the sponsor of the judicial gerrymandering bill, introduced his initial proposal on Twitter with plans to rush it through the legislature.⁹⁰ Rep. Burr has since sought feedback from judges and voters—who were almost uniformly opposed.⁹¹ At one hearing in September 2017, every speaker was opposed to judicial gerrymandering.⁹² “This is an attempt to take over the final piece of the puzzle and to gerrymander the judiciary in favor of the Republicans,” said one Raleigh voter.⁹³

The current judicial gerrymandering bill would result in one-quarter of District Court judges being “double-bunked,” or placed in a district with another incumbent.⁹⁴ NC Policy Watch reported that “43% of all Black or African-American district court judges are double-bunked.”⁹⁵ The new districts also double-bunk the state’s only Latina District Court judge and its only Native American Superior Court judge.⁹⁶

The maps released by legislators tend to carve up urban districts and combine them with neighboring areas that tend to favor Republicans.⁹⁷ The districts in Buncombe County would be redrawn in a way that could “hand the GOP a majority of Buncombe County’s nine judicial seats, even though most Buncombe voters tend to pick Democrats,” according to the Asheville Citizen-Times.⁹⁸ One Republican legislator said that unless populated areas are split up, “The heart of the city controls who all the judges are.”⁹⁹

Democratic legislators have repeatedly asked Rep. Burr if his bill violates the Voting Rights Act.¹⁰⁰ He responded, “I believe these districts will comply with the law and unless we have a judge trying to legislate from the bench, they should be upheld.”¹⁰¹

Some of North Carolina’s current judicial districts were redrawn decades ago to comply with the Voting Rights Act. To settle a lawsuit under the act, the legislature changed Superior Court districts in 1987.¹⁰² The changes enhanced “the opportunity of minority residents to elect candidates of their choice to that court,” according to the U.S. Department of Justice.¹⁰³

In the mid-1990s, the legislature redrew some District Court boundaries to comply with the Act.¹⁰⁴ The previously redrawn districts include the cities of Greensboro and Fayetteville, both in counties where more than one-third of the population is black.¹⁰⁵ Rep. Burr’s new map would again split up these districts.¹⁰⁶

The judicial gerrymandering bill could undo much of the progress that the state has made towards ensuring that its court districts comply with the Voting Rights Act. The bill could resurrect the previous disparity that violated the act.

Isela Gutierrez of Democracy North Carolina said that Rep. Burr’s bill would weaken the influence of black voters.¹⁰⁷ Anita Earls of the Southern Coalition for Social Justice said the maps being considered this summer included districts in Greensboro and Fayetteville that resembled the legislative districts there, which courts have struck down as unconstitutional racial gerrymanders.¹⁰⁸

Other states, including Alabama, Louisiana, and Texas, are facing Voting Rights Act lawsuits over the geography of judicial elections.¹⁰⁹ In those states, black and Latino voters are arguing that at-large elections have effectively nullified their vote.¹¹⁰

If the judicial gerrymandering bill is enacted and challenged under the North Carolina Constitution, the North Carolina Supreme Court would make the final decision about whether it is unconstitutional.

The ultimate power grab: Legislative appointment

The General Assembly’s latest priority is the elimination of judicial elections in favor of a system that they have called “merit selection.”¹¹¹ The system would be more accurately described as legislative selection, because it would give legislators total control over who sits on the bench.¹¹²

There are only two other states with a similar system: Virginia and South Carolina.¹¹³ If their experience is any indication, legislative selection would not bode well for diversity. In South Carolina, white men represent 30 percent of the population but an astounding 72 percent of the judges, according to the American Constitution Society.¹¹⁴ People of color make up 19 percent of the state’s population but occupy around six percent of the courts’ seats.¹¹⁵ In Virginia, white men make up 31 percent of the population but fill 58 percent of the judicial seats.¹¹⁶

North Carolina’s courts already do not reflect the population. North Carolina ranked 37 in terms of judicial diversity in the American Constitution Society study. White men—less than one-third of its population—make up two-thirds of its judges.

In Virginia and South Carolina, the legislative selection systems have also led to charges of favoritism and nepotism.¹¹⁷ “As recently as 2000, every justice on the South Carolina Supreme Court was a former General Assembly member,” according to a study by the Brennan Center for Justice on legislative selection.¹¹⁸ Legislators have also chosen relatives for judgeships, and Rhode Island voters ended legislative appointment in 1994, after judicial corruption scandals.¹¹⁹

The North Carolina General Assembly itself does not reflect the state’s diversity. As of 2015, 64 percent of legislators were white men, which accounts for around one-third of the state’s population.¹²⁰

Unfortunately, few systems for choosing judges have been effective at fostering diversity.¹²¹ The Obama administration made important strides at the federal level, but President Donald Trump seems to be intent on reversing that progress through his appointments, 75 percent of which have been white men.¹²² North Carolina’s public financing program showed promising results for diversity, but the state courts remain unrepresentative.

Given the racial and ethnic makeup of the General Assembly and its repeated attempts to discriminate against black voters, legislative selection would likely exacerbate racial and ethnic disparities in the state court system. This legislature cannot be trusted to pick judges who reflect the communities they serve.

Disregarding diversity in the quest for more power

The legal battles to protect the rights of North Carolina voters are far from over. Activists and citizens are still looking to the courts to protect voting rights. The state courts will soon rule on important voting rights cases.¹²³ With President Trump rapidly transforming the federal courts and his Department of Justice failing to protect voting rights,¹²⁴ state judges may soon be the only protection for voting rights. State constitutions include much broader rights to vote than the U.S. Constitution.¹²⁵

As state courts rule on these politically charged issues, those courts must include judges with diverse viewpoints. U.S. Supreme Court Justice Sonia Sotomayor spurred a discussion about the value of judicial diversity when she was nominated¹²⁶ and has demonstrated the value of diverse perspectives.¹²⁷ Last year, she wrote a powerful dissent when the court declined to hear a racial profiling case, warning that the targets of racial profiling are “the canaries in the coal mine whose deaths … warn us that no one can breathe in this atmosphere.”¹²⁸

In addition to concerns about diversity, the separation of powers outlined in the North Carolina Constitution must be preserved so that courts are able to protect the rights of voters. The General Assembly’s actions in recent years have compromised democratic institutions and infringed on that separation of powers.¹²⁹

Justice Orr described the proposal for two-year judicial terms as “a continued effort to try and intimidate the judiciary.”¹³⁰ Rep. Marcia Morey (D), a former Chief District Court Judge, called it an “unprecedented power grab by the zealous GOP leadership to control of the judiciary.”¹³¹

North Carolinians need independent, representative courts whose institutional strength will come from a plurality of views—with a shared commitment to fairness and justice.

Billy Corriher is the deputy director of Legal Progress at the Center for American Progress. Michele L. Jawando is the vice president for Legal Progress at the Center. Lukasz Grabowski is an intern with Legal Progress and a senior at Johns Hopkins University.