North Carolina Is a Warning

The ad that signaled the coming catastrophe for democracy in North Carolina appeared just four days before the November 2012 election. As the ad opened, a woman’s voice wondered aloud whether voters “can trust Sam Ervin IV to be a fair judge.” Ervin, captured in black and white, looks shifty, moving his eyes back and forth before turning his head suddenly as if he is on the run. Ervin and his family, the ad announced, had donated to the campaign of the former Democratic governor, and later convicted felon, Mike Easley. The camera lingers on Ervin’s face as the ad explains that he went on to get a $100,000 state job; the portrait could be mistaken for a mug shot, were it not for his suit and tie.

One might have assumed that Ervin was running for high federal office, given the seriousness and slickness of the ad—and the fact that the group responsible for it was largely funded by a national Republican PAC. But no, Ervin was running for one seat of seven on the state supreme court. When Election Day arrived, he lost to Paul Newby, who is now North Carolina’s chief justice. (In 2014, Ervin won a seat on the court too.)

This ad in the Newby-Ervin race augured a fundamental change in the politics of North Carolina’s judiciary. Just eight years prior, the state had made judicial elections nonpartisan and created the country’s first public-funding system for judicial elections. This ad brought the worst of the political system back into judicial races: blatant manipulations of facts to imply that Ervin had gotten his job because he had given a bribe (he hadn’t), ominous tones and negative spins that played to voters’ emotions, and a mysterious political group backed by unknown funders. North Carolina had tried to take the judiciary out of politics—and politics out of the judiciary—but its reforms were no match for the flood of money in politics following Citizens United and Republican efforts to take over the courts after the Tea Party wave. Soon thereafter, the era of attempted judicial reform in North Carolina formally ended. The legislature eliminated public funding just months after the 2012 election and later made judicial elections partisan yet again.

[Read: The local consequences of Citizens United]

Subjecting state judiciaries to the sort of raw politics exemplified in that ad—and making them beholden to partisan, privately funded elections—creates an impossible situation for judges. They are forced to campaign as a member of a party, meaning their funds and support come from the same politicians and donors whose cases they must hear once elected. Over time, their electoral victories and career longevity depend upon the favor and success of their party and its leaders.

The explicit intermingling of judges’ professional obligations and personal interests makes serving as a co-equal check on the other branches of government infinitely more complex. Politicians can then exploit the court’s politicization for their own aims, further undermining the judiciary in the process. For example, if a judge issues an opinion that a politician disagrees with, an elected representative can use the fact that judges are part of the political fray to justify direct attacks on the judiciary, whether they are personal (against a particular judge) or systemic (on judicial power) in nature.

This dynamic is at its most dangerous when it comes to election law, where it threatens the legitimacy of the American electoral system in its entirety. Because of John Roberts’s ruling in North Carolina Republicans’ favor in Rucho v. Common Cause in 2019, state courts are now the only available judicial arbiters for partisan gerrymandering claims. Gerrymandering in particular presents a significant problem for elected state courts. Judges’ legitimacy depends on their perceived objectivity, and so sticking a D or an R next to their name always threatens the public trust in them. This trust is especially at risk of being lost when judges must explicitly rule on whether their own party can or cannot favor itself in an election, as they do in redistricting cases. But the problem here is not just optical; judges in fact could face significant pressure from the political system to rule in favor of their party for no reason other than loyalty.

The mixing of gerrymandering and judicial politics has created a democratic doom loop in North Carolina. The legislature is leaving the court with no good options: give in and grant the legislature the map it wants, or hold fast but face Republicans’ efforts to attack the current court as hopelessly partisan and find candidates who will be more likely to let the party gerrymander freely.

This is an ominous sign for other states. With its even partisan split, its history of racist policies, and its stark urban-rural divide, North Carolina has proved to be a microcosm of national conflicts before.

North Carolina’s experience portends two possible futures for democracy, and which path the country takes from here depends largely on the U.S. Supreme Court.

In one scenario, North Carolina is a blueprint for the other 37 states that have elections for their state supreme courts. State courts would be subject to versions of the attack ads, untraceable money, and rank partisanship seen in that Ervin-Newby race.

[David A. Graham: Republicans are grabbing power because SCOTUS said go for it]

In the other, even darker future, North Carolina’s judicial politics and gerrymandering conflicts lead to the fundamental remaking of election law for the entire country. If the state’s Republicans get their way in a case now before the Supreme Court, they will secure a permanent victory for their party over Democrats, for legislatures over courts, and for partisanship over fairness and accountability—not just in North Carolina, but across the entire country.

For decades, North Carolina has been home to a series of redistricting disputes. The U.S. Supreme Court found in the 1990s that politicians there had brazenly drawn a district to capture Black voters within its lines, in the country’s first judicially determined instance of racial gerrymandering. Democrats controlled the state for years before and after that ruling, and they gerrymandered Republicans ruthlessly, creating congressional districts that resembled snakes slithering through the state time and again in order to guarantee victory for their representatives.

After Republicans swept to victory in 2010, they used algorithms and new mapping technology to gerrymander Black voters and Democrats out of power so precisely and regularly that Democratic North Carolina Representative David Price, who had once been fairly agnostic about redistricting reform, began to believe that it was desperately needed. “I began to think, This is just not acceptable,” he told me. “There needs to be some kind of policy or legal constraint.”

More recently, and most crucial to this current moment, the events in North Carolina following the 2019 Rucho decision have exemplified how gerrymandering and judicial politics reinforce each other and, in tandem, pose a broader risk to the democratic system in states everywhere.

Not long after Roberts’s decision came down, Newby (Ervin’s competitor in the 2012 race) ran for chief justice of North Carolina’s Supreme Court against Cheri Beasley (now a Democratic candidate for the U.S. Senate), this time officially as a Republican. In this election, as Democrat-leaning groups spent millions of dollars supporting Beasley, Newby himself jumped into the partisan fray.

Newby’s stump speech from that campaign reads like a list of Republican politicians’ greatest hits. He called Beasley an “AOC person” and joked that a gun rack was the ideal place for a campaign bumper sticker. He championed the building of a border wall—never mind that state justices have no role in building walls, especially in a state 1,500 miles from the border—and told Democrats to get out of America if they hated the American right so much.

Speeches like Newby’s—who won, although by just 401 votes—trouble U.S. Representative G. K. Butterfield from North Carolina, a Democrat and a former member of the state’s supreme court himself. “When I served on the court, I experienced a modicum of restraint on the part of my Republican colleagues on the supreme court,” he told me. “Republican supreme-court justices now are the extreme partisans.” John Szoka, a moderate Republican North Carolina state representative, shared similar concerns with me about the state’s Democratic justices. In a state where they agree on little, at least some Republicans and Democrats find the politicization of the state supreme court troubling.

That politicization was evident during Harper v. Hall, the recent gerrymandering case in North Carolina that took place within the state court system. Republicans drummed up the nuclear possibility of impeaching North Carolina Supreme Court Justice Anita Earls if she did not recuse herself from Harper v. Hall, because she had worked previously as an attorney at one of the legal groups bringing the case. They also said that Ervin should recuse himself because he was up for reelection. Democratic strategists countered that a Republican justice serving on the same court, Phil Berger Jr., is the son of State Senate President Phil Berger Sr., who was a party to the litigation, and that he should recuse himself too. None of the justices recused themselves.

At oral argument, Newby did not hide his belief that the judiciary should do nothing to stop Republicans’ redistricting strategies that guarantee victory for them, going so far as to say of his state’s elections: “We have free. We don’t have fair.”

Though he was distinguishing the language of North Carolina’s constitution from other states’, Newby made clear that he would not block the legislature’s gerrymandered maps if he had a majority on his side. This would mean, in a state that is roughly one-third Democrats, one-third Republicans, and one-third Independents, Republicans would get 10 congressional seats and Democrats four, while Republicans would likely have a 60 percent supermajority in both chambers of the state legislature. The North Carolina Supreme Court ultimately avoided furthering the doom loop that time. Standing up to the legislature, it held that partisan gerrymandering was a violation of four separate clauses of the state’s constitution and that the Republican-drawn maps needed to be redrawn accordingly.

This decision has hardly put the gerrymandering question to rest, however. Political insiders in the state predict that the 2022 judicial election will make 2012 and 2020 look tame as Republicans try to take control of the state court and then potentially undo Harper v. Hall, or at least approve of a new congressional map. More money will flow in, and the ads will only get nastier.

The country is already seeing echoes of North Carolina in judicial races and redistricting litigation elsewhere. Almost $100 million was spent on state judicial campaigns nationwide in the 2019–20 election cycle, compared with $38.4 million in 2009–10. In Pennsylvania, home of another significant redistricting case, the Republican State Leadership Committee (which helped fund the group that ran the ad against Ervin in 2012) spent more than $500,000 on one state supreme-court race in 2021. In Wisconsin, political groups other than the candidates spent $9 million for just two seats in the 2019–20 cycle. And in Ohio, a Republican state-supreme-court justice ruled that the state legislature had violated the state’s constitution by creating an overly partisan map—only to be met with defiance of her ruling and calls for her impeachment from members of her own party.  

[Read: The decision that could doom Democrats for a decade]

Fair-maps reformers have had significant victories this cycle. Not only in North Carolina, but also in New York and Maryland, among others, state courts have reined in rank partisanship in map drawing, serving as a needed check on their legislatures. But with these encouraging developments comes even more pressure on these state supreme courts. “I think, as these courts become more important, and are hearing these very high-stakes cases, I think the political temperature is likely to rise. And that’s a concern for the integrity of our judicial system,” Alicia Bannon, an expert on state courts at the Brennan Center, told me.

But now, things may take another sudden turn. North Carolina Republicans, fearful that the courts could stand in the way of their plans to hold on to power in the state, have brought a case to make the courts impotent in the election context.

Following the ruling in Harper that partisan gerrymandering is unconstitutional in North Carolina, the state’s Republican leadership turned to the U.S. Supreme Court. Although the Court did not immediately give the state’s Republicans the maps they wanted, four justices strongly encouraged North Carolina’s Republicans to try again in the case (now known as Moore v. Harper). This week, the Court granted a hearing for the case in its next term.

North Carolina Republicans’ argument—known as the independent-state-legislature theory—holds that state legislatures alone set the rules of federal elections in their respective states, unbound by their state constitution and courts and trumped only by an act of Congress. The consequences if they succeed would be far-reaching and devastating. The first domino to fall would be that the state judiciary would have no say in the congressional redistricting process in North Carolina and theoretically any other state, no matter how egregious the gerrymander. Voters denied equal representation and a fair system would have nowhere to turn: not federal courts, because of Roberts’s ruling in Rucho; not state courts; and likely not the political process itself, because politicians in Congress and statehouses could, and probably would, do everything possible to ensure that their own party remains in power.

The Court could go even further, though. Independent redistricting commissions might be banned for federal elections despite their importance in a number of states. If the Court both continues to gut the Voting Rights Act, which appears likely, and takes North Carolina’s argument to the extreme, voters of color could and probably would be gerrymandered out of power and denied the right to vote in congressional and presidential elections without protection from any court.

This doctrine has been met with skepticism even by some prominent members of the conservative legal and political communities. Ben Ginsberg, the famed GOP election lawyer, noted to me that even if the independent-state-legislature theory could succeed as an argument in certain election contexts, redistricting does not appear to be one of them. Dallas Woodhouse, the former executive director of the North Carolina Republican Party who vehemently disagreed with the state’s supreme-court ruling that partisan gerrymandering is unconstitutional in North Carolina, was blunt with me: “The federal case is weak.”

John Roberts emphasized in his opinion in Rucho that plaintiffs could seek relief for partisan-gerrymandering claims in state courts even as he said that federal courts would not hear these cases. That the Court would ignore its own chief justice’s words in such a recent, high-profile decision and throw out multiple precedents would have been seen as impossible even just a few years ago.

But this is not a Supreme Court unwilling to overturn precedent, a reality that is becoming clearer every week. The fact that four justices (Samuel Alito, Brett Kavanaugh, Clarence Thomas, and Neil Gorsuch) encouraged North Carolina Republicans to try again, and now have just granted a full hearing for the case, likely indicates that they are confident they have the five votes they need for a majority.

If the Court ultimately agrees with North Carolina’s Republicans, then we all might be nostalgic for the days of judicial attack ads.