Late last week, the General Assembly passed Senate Bill 4, “Bi-Partisan Ethics, Elections & Court Reform” in a special session. The legislation was passed largely on a party-line vote (Democrat William Brisson voted with the Republican majority) and was signed into law by Governor Pat McCrory on Friday.
SB4 contains several reforms, including 1) creating a new state agency by combining the functions of three other bodies; 2) increasing transparency in elections for the North Carolina Supreme Court and Court of Appeals; and c) modifying appellate review of certain cases.
The special session was called while legislators were in Raleigh for an emergency session called by Governor Pat McCrory to provide for over $200 million in disaster relief following the devastating effects of Hurricane Matthew and the extensive wildfires in the western part of the state.
So-called “special sessions” can be called when three-fifths of both chambers of the General Assembly agree that there is a need to do business outside their normal biennial schedule. The General Assembly meets over a two year period, called a “biennium.” Its regular session, also called the “long session,” begins in January of each odd-numbered year and lasts roughly six months. After the legislature adjourns for the summer, it reconvenes again the following even-numbered year, usually in the Spring, for what’s called the “short session.”
Elections and Bipartisan Election Reform
SB4 combines the functions and duties of the State Ethics Commission, the lobbying section of the Office of the Secretary of State, and the State Board of Elections into the new “Bipartisan State Board of Elections and Ethics Enforcement.” Starting on January 1, 2017, this board will be responsible for oversight of campaign finance, lobbying and ethics investigations. The bill requires an evenly-divided bipartisan makeup of both the state board and 100 county boards of elections.
Membership of the state board consists of eight individuals, four appointed by the Governor and two appointed by the Speaker of the House and President Pro Tem of the Senate, respectively. The Governor, Speaker, and Senate leader are required to appoint an equal number of members to the state board from both major parties. Additionally, membership of the 100 county boards of elections will increase from three to four members, also with an even bipartisan split between the two major parties.
“This board will be responsible for oversight of campaign finance, lobbying and ethics investigations, ensuring that similar functions are regulated by the same agency and helping avoid situations where separate entities issue conflicting interpretations of the law,” said Senate President Pro Tem Phil Berger. “It follows the model of the Federal Elections Commission and the current model of the State Ethics Commission by requiring the board’s eight members to be evenly divided between Republicans and Democrats, and by requiring at least six votes for an official action.”
Greater Transparency in Judicial Elections
Another significant reform included in SB4 involves providing more information to voters by indicating the political party that a judicial candidate belongs to clearly on the ballot. This method of electing North Carolina’s judges was the one long used before it was changed by the Democrat majority beginning two decades ago; prior to 1996, all judicial elections were conducted this way. In 1996, the elections of Superior Court judges were made “non-partisan” and then, starting in 2004, all elections of appellate court, superior court, and district court judges in North Carolina were conducted in a “non-partisan” manner.
Of course, no election is really non-partisan; elections involve candidates who are supported and endorsed by partisan political parties. And while the role of a judge is to interpret the law, that person’s ideological bent undoubtedly informs his or her judicial philosophy; this is why we often use the words “conservative” or “liberal” to describe a judge or justice. On the issue of guns, for example, a conservative justice would be more inclined to support a literal reading of the Second Amendment (supporting an individual’s right to keep and bear arms), while a liberal judge would be more inclined to see the provision as outmoded and therefore support more broad restrictions on gun ownership.
The Judicial Branch of government in North Carolina is established as a co-equal branch of our state government under Article IV of the State Constitution. North Carolina’s court system, called the General Court of Justice, is a unified statewide and state-operated system consisting of three divisions: the Appellate Division, the Superior Court Division and the District Court Division. The Appellate Division is composed of the Supreme Court and the Court of Appeals. Appellate Court justices are elected statewide, and serve eight year terms. In 2015, the General Assembly changed the law to require candidates running in non-partisan races for Court of Appeals judge to have the candidate’s party affiliation printed on the ballot. SB4 now expands that transparency to election for the North Carolina Supreme Court.
So why the change from “non-partisan” to partisan for the state Supreme Court?
“One of the easiest ways for voters to identify who shares their philosophies on the role of the judiciary is through partisan affiliation,” commented Senator Berger. “This is a much better way for voters to select candidates in lower profile races than by relying on name ID and ballot order. That’s why this bill creates partisan elections for state Courts of Appeals and Supreme Court candidates. Even the liberal tabloid INDY Week highlighted the problem with our current system, noting that a newly-elected Supreme Court Justice may have won “because conservative voters, knowing little to nothing about these candidates but having seen Republican judges on top elsewhere on the ballot, assumed [he] was a Republican.”
Senator Berger is referring to the most recent state Supreme Court election, where liberal Judge Mike Morgan unexpectedly defeated conservative Justice Bob Edmunds, 54 to 46 percent. It was the only race on the November ballot where the candidates’ party affiliation was not identified for the voter. And Judge Morgan was listed first — this is significant, because in every other race, it was the Republican that was listed first, following a long-standing tradition of listing the candidate of the governor’s party at the top. And with little to go on in a non-partisan race, voters tend to choose the candidate listed first — especially when all candidates are listed in a uniform order in every other partisan race on the ballot.
Studies have shown that when a candidate’s name is listed first on a ballot, even in partisan contests, it can give them a slight advantage; especially where candidates aren’t as well-known as gubernatorial or presidential candidates. Political analyst Larry J. Sabato offers a summary of the “ballot order effect” in his paper for the University of Virginia “Who’s On First? Does the Ballot Order of Candidates Make a Difference?”.
Morgan’s victory was considered anomalous by many due to the fact that he won most counties, (including counties with a Republican majority) yet Republicans swept all five partisan Appellate Court races. And despite Attorney General Roy Cooper’s razor-thin victory over Governor Pat McCrory, Republicans succeeded in retaining their supermajorities in the state legislature, gaining a historic majority on the Council of State (with the election of a Republican Superintendent of Public Instruction and a Republican State Treasurer) and a substantial victory for the Republican candidate for President.
With political parties displayed on the ballot for most races, at least voters could refer to this information if they were otherwise unfamiliar with the candidate’s names or political philosophies. “Allowing judges and justices to run under political party labels would help voters better understand the types of decisions they might make,” commented Senator Bob Rucho.
“Political scientists have determined that party label is probably the most important factor in voters’ decisions in judicial races,” says Michael DeBow, Diane Brey, Erick Kaardal, John Soroko, Frank Strickland, and Michael B. Wallace in “The Case for Partisan Judicial Elections.”
“Candidate party affiliation is seen as the most meaningful cue to voters regarding which candidate they should support,” concluded Chris Bonneau and Damon Cann in their 2013 paper on political behavior for the University of Pittsburgh.
Harry Stumpf and John Culver are even more succinct in their book in The Politics of State Courts: “In partisan [judicial] races, the political party label may give most voters all the information they seek.”
So why did Democrats want to remove any indication of a judicial candidate’s political party? In a word, politics. History shows that people tend to vote for Republican judges when the candidate’s party affiliation is shown on an election ballot.
Speaking on the House floor during debate of Senate Bill 4, Representative Justin Burr remarked: “We’ve listened to the Democrats object to partisan elections for judicial races because they claim justices and judges shouldn’t be selected based on their party affiliation, but their own record doesn’t match up with the rhetoric that we’ve heard from them today on the matter of judicial races being partisan.”
“It is clear that the Democrats’ efforts to remove the judicial candidate’s party affiliation nearly ten years ago wasn’t an attempt to keep the courts from being partisan, but the real strategy was to make it difficult for voters to receive critical information that they rely on when they go to the polls to vote,” Representative Burr continued. “It is clear that the Democrats aren’t interested in nonpartisan races or picking the best and most qualified jurist for the seat. They really want a Democrat. And that’s fine. And the Democrat Party and its officials here know that the chances of electing a Democrat judge are increased if the voters are not provided with the information on the ballot.”
Even the Raleigh News & Observer admits that’s Morgan’s victory was a partisan one, saying “Mike Morgan’s rare big win for Democrats tilts party balance on NC Supreme Court.”
Full Appellate Review
The bill also allows for some constitutional challenges to be brought before a lower court. Now, appeals can be heard by the entire 15-judge Court of Appeals (called en banc, from the French for “by the full court”) instead of just by the usual three-judge panel. This is the same standard used by our federal judicial system.
“This bipartisan idea – which was championed by Governor-elect Roy Cooper in 1999 and high-ranking Democrat senators in 2001 and 2005 – will ensure at least one full appellate court can review trial court decisions in North Carolina,” concluded Senator Berger.