Midterm election proves to be Independence Day for NC courts

The North Carolina courts have a lot to celebrate after Tuesday night – voter turnout in statewide judicial races was higher than the past three midterm elections, voters elected the first openly LGBTQ candidate in any statewide political race, and there was a rejection of lawmakers’ efforts to politicize the judicial branch.

“No doubt this is an encouraging sign,” said Douglas Keith, counsel in the Brennan Center for Justice’s Democracy Program. “The public’s broad rebuke of these efforts and the bipartisan public officials’ rebuke of these efforts will hopefully be kept in the back of the minds of anyone who thinks of revisiting efforts to politicize the judicial branch.”

Voter turnout in statewide judicial races this year increased by more than 15 percent from the last three midterm elections, according to data from the State Board of Elections and Ethics Enforcement. That number could also grow, as provisional and absentee ballots are still being counted from Tuesday’s election.

Voter turnout in this year’s Supreme Court race was 51 percent as of Thursday, which is comparable to 2016, a presidential election year with 57 percent turnout. Overall voter turnout as of Thursday in the midterm election was 52.38 percent compared to 68.89 percent in 2016.

*****

Democratic civil rights attorney Anita Earls was elected to the high court by 49.45 percent of the vote over incumbent Republican Justice Barbara Jackson (34.15 percent) and Republican Raleigh attorney Chris Anglin (16.40 percent).

Earls’ election to the state’s highest court will tip the bench to a 5-2 Democratic majority.

Earls said in an email that she was fully prepared to hit the ground running. She will be sworn in Jan. 3 and the following Monday, the high court will celebrate its 200^th anniversary. She added that there will be oral arguments in six cases the two days after that, Jan. 8 and 9.

“I’ll be ready to hear those cases and give them the full and careful consideration they deserve,” Earls said. “I want voters to know that their voices were heard, they want a fair court that treats everyone the same.”

She said her hope for the future of North Carolina’s courts is that they will improve access to justice so everyone who needs legal advice and representation can obtain it, and so they can address the issues of implicit racial and other biases in the civil and criminal justice systems.

In a speech at the state Democratic party headquarters following her election, Earls thanked Jackson and Anglin for “engaging in a healthy debate with me about our state’s democracy, the role of the judiciary, and our views on the path forward for North Carolina.”

“When we set out on this journey 12 months ago, we were clear about our vision: we stand for an independent and fair court that applies the law equally to everyone,” Earls said. “I am confident that our clarity and your commitment carried us to this victory.”

Earls recounted her “uphill battle” in her victory remarks, noting that nothing was certain and they didn’t know who was in the race until the end of July.

“Litigation over one of the five laws passed to prevent what happened tonight kept us guessing what the ballot might look like until just ten weeks ago,” she added. “It was your faith in what we could accomplish together, your steadfast commitment and hard work, that got us to this moment. We faced long odds together with the conviction that voters would hear our positive message, share our values and be moved to support us.”

The litigation she referred to concerned Anglin’s party label on the ballot. When GOP lawmakers eliminated judicial primaries, they left out a rule requiring candidates be registered with their affiliated political party for at least 90 days before appearing with the label on the ballot.

Anglin, who did not return two requests for comment after losing the election, took advantage of the new rules and changed his party affiliation from Democratic to Republican shortly before declaring his candidacy for the Supreme Court.

Republican lawmakers tried to change the rules in the middle of the candidacy process and revoke Anglin’s party label from the ballot, but he won a lawsuit over the matter.

Jackson said in an email Wednesday to Policy Watch that she doesn’t yet have plans for 2019 and will spend the next few weeks wrapping up her work at the Supreme Court.

She wrote in a speech on Facebook after the election that she looked forward to spending a lot more time with her husband, Scott Mabry. She thanked him for his “unwavering love and support” and also expressed gratitude for other supporters in her life.

“During my time as a candidate and judge, I have made so many friends and I have been genuinely touched by how many of you have volunteered your time, contributed, or reached out to me personally,” she wrote. “These memories are priceless and I will treasure them, along with your steadfast support and friendship.”

Jackson called Earls to congratulate her after the election and said she wished her and the rest of her colleagues on the Supreme Court well moving forward.

In her email to Policy Watch, she said transitions at the high court happen very smoothly.

“Ordinarily, the Chief Justice and the junior Associate Justice – and some of their staff members – meet with incoming Associate Justices and their staffs to welcome them and orient them to the Court and their responsibilities,” she said. “Chief Justice Parker and Justice Hudson and their staffs were extraordinarily helpful to me when I joined the Court, along with all of my colleagues during my tenure there.”

Jackson served as an appellate court judge in North Carolina for 14 years. When she ran for the Supreme Court in 2010, voter turnout for that race was only about 33 percent compared to this year’s 52 percent.

Democratic candidates won every statewide judicial race this year – in addition to the high court, there were three races for Court of Appeals candidates.

*****

Voter turnout for the three appellate races hovered just shy of 51 percent. Turnout in 2014 was between 27 and 35 percent for four appellate races, while turnout in 2010 was between 23 and 32 percent for five appellate races.

Democratic candidates Allegra Collins and Toby Hampson won seats on the Court of Appeals, replacing retired judges Ann Marie Calabria and Rick Elmore. Calabria and Elmore had both served since 2002.

Hampson did not return a request for comment after the election, but Collins said Wednesday that it felt amazing to win and she was still taking it all in.

“Many people have reached out with their congratulations, and I so appreciate everyone’s kind words and support,” she said in an email. “This campaign was truly a team effort among family, friends, and supporters, and it feels great to have the opportunity to touch base with so many of those people.”

She added that she looked forward to working hard as an appellate judge and to writing articulate, concise and accurate opinions that litigants, attorneys and citizens alike can understand.

Court of Appeals incumbent John Arrowood kept his seat on the bench. He was appointed in 2017 by Gov. Roy Cooper to fill a vacancy after Republican appellate Judge Doug McCullough retired early to delay a GOP legislative measure shrinking the court.

Arrowood was challenged by Republican Judge Andrew Heath, an appointee of former Gov. Pat McCrory.

“It felt good; I’m happy,” Arrowood said in a phone interview Wednesday. “I don’t foresee any transition. I’m back in my office today doing my job, reading opinions and preparing for next week.”

Arrowood said he thinks it speaks well of the state that he made history as the first LGBTQ candidate elected here to statewide office.

“Hopefully it will serve as an inspiration that young people can live their lives honestly and openly and still achieve their dreams,” he said.

He recalled when he came out as a gay man that he had just decided it was time and that he had been in a supportive work environment.

He felt good about the decision, but noted there was still some fear over the years about how it would affect things. He added that he hoped this election would be a reminder that it doesn’t.

“My LGBT is a part of who I am, but it is not the driver for what I do,” Arrowood said. “I think I am a really good judge who happens to be gay. I’m not a gay judge. Just like I was a really good lawyer who was gay. I didn’t practice gay law.”

*****

Results in the Superior and District Court elections were more evenly split.

Of the 42 Superior Court races, 12 were contested. Judges registered as Democrats won six of those, though in four of the races, their opponents were also Democratic. Judges registered as Republicans won the other six races, though in one of those, their opponent was also Republican.

Of the 119 District Court races, 29 were contested. Judges registered as Democrats won 10 of those, though in four of the races, their opponents were also Democratic. Judges registered as Republicans won the other 19 races, though in eight of those, their opponents were also Republican.

Perhaps the biggest message voters sent Tuesday was that they didn’t support GOP lawmakers’ attempt to gain more partisan control over the courts. They rejected a constitutional amendment that would have reallocated power from the governor to the legislature to appoint judicial vacancies.

Nearly 67 percent of voters rejected the amendment, and only seven counties voted for it. Keith said lawmakers’ attempts to get partisan control of the courts backfired.

[Tweet “The opposition to the politicization of the judicial branch is bipartisan”]

“The opposition to the politicization of the judicial branch, to taking away the court’s independence, is bipartisan,” he said. “This was not an amendment that was struck down with 51 percent of the vote. This was a large majority of the state, even in divisive political times, that said this was not appropriate.”

He said it was difficult to assess what aspect of the campaign against the amendment was most successful or what pieces were most important.

“I think something you saw in North Carolina, that we saw in states this year when there have been efforts to encroach on the judicial branch’s powers, is there was a broad bipartisan repudiation of these efforts,” Keith explained. “You saw former governors and former judges speak out about the harm that these amendments would do to the extent where eventually … even legislators who voted for these amendments started doubting the wisdom of supporting them.”

The message that voters sent here by widely rejecting the politicization of the courts will echo throughout the nation, he added.

“The efforts in North Carolina without a doubt have been something that legislators in other states have also been paying attention to, and so the losses in North Carolina or the loss of the constitutional amendment in North Carolina is significant for the rest of the country,” Keith said. “If that effort had been successful, then you may have seen similar efforts arise in other states, and hopefully it’s something that those elected officials in other states will reconsider now.”

[Editor’s note: This article has been updated to reflect a response from Supreme Court Justice-elect Anita Earls.]