Let's Reform Judicial Elections

by John Hood

North Carolina policymakers will have a lot on their plate in 2013. The General Assembly will tackle education reform, a rewrite of the state tax code, the unemployment-insurance debt, and other pressing issues. Gov. Pat McCrory will propose initiatives of his own, likely to include regulatory reform and changes to the budget process.

Nevertheless, I hope they make time early in the 2013 legislative session to take care of a lingering legal problem: North Carolina’s unwise and unconstitutional system for electing members of the state’s appellate courts.

The current system is unwise because it deprives voters of relevant information and reduces voter participation in judicial elections. Some years ago, the Democrats then in control of the General Assembly got worried about the increasing numbers of Republicans being elected to the Supreme Court and Court of Appeals. Dressing up their partisan worries in good-government clothing, they voted to strip party labels from the ballot for judicial elections. They also instituted a government-funding scheme designed to discourage judicial candidates from running real, statewide campaigns – that is, campaigns that were privately funded with enough dollars to communicate effectively to voters.

The trick was essentially to compel judicial candidates to participate in the “voluntary” scheme by punishing those who didn’t. Under the law, if you refused to participate and received significant donor support – or, even more problematically, your campaign benefited from privately funded independent expenditures – your opponent received extra “rescue funds” from the state.

It was certainly not the case that, after these reforms, the races for the appellate courts became truly nonpartisan. Both Democrats and Republicans continued to recruit and endorse candidates for Supreme Court and Court of Appeals. But because party labels were no longer on the ballot, and the government-financing scheme starved the campaigns, many voters had no idea who was in which party.

That was, of course, the idea behind these changes in the first place. Republicans had been winning judicial races, possibly because North Carolina voters thought GOP judges would be tougher on crime than Democratic judges. Robbed of this information by legislative action, voters had to resort to guesswork, or to thrilling moments of representative government in which they choose judges on the basis of apparent gender or a vague inkling of name recognition.

Some chose not to choose at all. In this year’s general election, some 4.5 million North Carolinians cast ballots for federal, state and local offices. Nearly all of them (99 percent) made a selection in the presidential race. Almost as many voted for governor (98 percent). But participation in other statewide races was significantly lower. More than a million voters, or nearly a quarter of the electorate, declined to indicate a preference for Supreme Court or Court of Appeals.

In addition to being unwise, the rescue-fund element of North Carolina’s election system also proved to be unconstitutional. The U.S. Supreme Court ruled in 2011 that a similar program in Arizona constituted an assault on the First Amendment. Because of the decision, North Carolina’s program was rendered unenforceable. But the law is still on the books.

I think state lawmakers should address these problems ASAP. They should repeal the government-funding system entirely and restore party labels to our statewide judicial races. The current system is the worst of all possible worlds – nonpartisan elections that aren’t really free from partisanship. By depriving voters of a valuable piece of information (party labels) and using so-called public financing to discourage judicial candidates from running real campaigns, the system pushes judicial politics into the world of super PACs and other independent-expenditure groups.

Failing that, lawmakers should do the next-best thing: Submit a constitutional amendment to voter referendum that emulates the federal model by having governors appoint the judges, subject to legislative confirmation and perhaps a subsequent retention election by voters.

Either option would be far superior to the current mix of play-acting, speech-punishing, and keeping voters in the dark.

John Hood is president of the John Locke Foundation and an NC Spin Panelist