RALEIGH – Appellate court races are usually North Carolina’s forgotten elections, with most voters knowing little about the candidates and one-quarter of them failing to reach that far down the ballot to even record their preferences.
Nevertheless, the stakes for the state Supreme Court are high once again this November.
The outcome of a single race could swing the legal temperament of the entire court. The winner likely will have to rule on challenged redistricting maps approved by the new Republican-controlled Legislature. There could also be lawsuits over business-friendly legislation, such as medical malpractice award limits.
The election has led to the creation of an outside committee led by political and financial heavyweights backing Associate Justice Paul Newby. The group could raise enough money to exceed the roughly $625,000 the campaigns of Newby and challenger Sam Ervin IV had between them June 30.
“With the exception of the governor’s race, it’s the most important (statewide) political campaign in North Carolina this year, and it’s hardly on anybody’s radar screen,” said Tom Fetzer, a former state Republican Party chairman leading the effort for the North Carolina Judicial Coalition supporting Newby. “The philosophical fulcrum of the court could shift.”
While candidates for appeals court seats aren’t labeled on ballots with party affiliations, Republicans hold a 4-3 advantage on the Supreme Court when it comes to voter registration. One of the four is Newby. Ervin, a Court of Appeals judge, is a Democrat and grandson of a party icon, the late U.S. Sen. Sam Ervin Jr. The winner gets an eight-year term.
This month’s oral arguments on a public records matter in unresolved redistricting lawsuits filed in part by Democratic voters highlighted the court’s current split. The three Democrats on the Supreme Court sounded the most skeptical of arguments by lawyers for Republican lawmakers that certain documents were protected by attorney-client privilege. Republican justices who spoke were more sympathetic.
Scott Falmlen, a former state Democratic Party chairman, said he has high expectations for the current court if it ultimately must determine the legality of the GOP-penned legislative and congressional districts. But “I certainly would have a much greater comfort level if the court was 4-3 registered Democrats,” he said.
In 2008 and 2010, Republicans won the single seat up for re-election on the state’s highest court. The big differences this year are the Judicial Coalition and new campaign finance rules.
The coalition is an independent expenditure group known as a “super PAC” that intends to run a campaign separate from Newby but supporting him. Fetzer said the group began soliciting donations in earnest this month. The law prevents the coalition from coordinating activities with the campaign of Newby, a former federal prosecutor.
It doesn’t appear anyone has yet come forward to organize a similar super PAC to support Ervin. Many Democratic candidates and the state party are behind Republican rivals in fundraising.
“There are just so many needs out there,” said Russ Swindell, a consultant to independent expenditure groups.
In 2006, a group run by Falmlen spent about $250,000 on television ads touting the fairness of four Supreme Court candidates without actually asking people to vote for them. All four judges — three of them Democrats — won the election.
Federal court decisions since have opened the door for these groups to specifically support or oppose candidates even while receiving unlimited corporate or union donations.
Proponents of the state’s popular voluntary public financing system for appellate court candidates are worried about the coalition’s influence. They say the program has reduced the amount of outside money entering court races and minimized the notion that judges’ rulings could be influenced by donors. Ervin and Newby both qualified for program funds. Federal judges also have ruled extra funds can no longer be given to qualified candidates getting outspent by outside groups.
“The introduction of a super PAC in this year’s state Supreme Court race is troubling,” said Bryan Warner with the North Carolina Center for Voter Education.
The race doesn’t solely fall along partisan lines. Newby has the endorsement of four of the five living chief justices of the state Supreme Court, two of whom are Democrats. One of them, Burley Mitchell, is a coalition leader.
Mike Davis, Ervin’s campaign manager, said he was disappointed to see Mitchell’s role in the super PAC and argues the practices of super PACs since a 2010 U.S. Supreme Court ruling points to mudslinging ahead.
“Show me an independent expenditure program anywhere in the county that’s had all positive ads for a candidate,” Davis said.
Davis said Newby has an ideological bent. In an interview, Newby responded that such comments are unfortunate and that he only attempts to apply the law as it was intended.
Mitchell said the coalition won’t run negative ads or comment about Ervin. He said he’d prefer to see the method for selecting judges overhauled. For now, he said, the super PAC may be a preferred alternative than judicial candidates aggressively seeking donations.
“It’s far better for independent groups who are supportive of justices and judges to raise money ... than for the justices themselves having their hat out to ask for money,” Mitchell said.