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Commentary

The Greensboro News & Record makes several excellent points in this morning’s lead editorial regarding North Carolina’s move from standard, contested elections for the Supreme Court to “retention” elections in which sitting justices receive either a “yea” or “nay” vote. While retention elections are not without merit in theory, the editorial notes, in the present case they’re clearly all about politics:

“Yet, as usual, the Republican-led legislature had a partisan motive. Although the court is officially nonpartisan, Edmunds is a Republican and the court has a 4-3 majority of Republican justices. Even if Edmunds is voted out, Republican Gov. Pat McCrory could appoint another Republican to the court. So, the GOP majority is guaranteed to continue at least until 2018.

The legislature also added to a confusing mixture of election processes for state courts. Each level has a different way of electing judges. In Guilford County, for example, District Court judges are elected countywide but Superior Court judges are elected in districts. They are nonpartisan. State Court of Appeals judges are chosen in contested nonpartisan elections, but candidates’ party affiliations will appear on the ballot. No party label will be listed with Edmunds’ name in his retention election.”

The editorial goes on to note that the switch is now being challenged (with good reason) in a new lawsuit as violating the state Constitution:

“One of the plaintiffs, Sabra Faires, is a Raleigh attorney with 30 years’ experience who says she is qualified to serve on the Supreme Court but is denied the chance to run. Indeed she is. Under the new setup, she might not have an opportunity to run for many years, until a justice is voted out or retires.

Furthermore, voters are denied the chance to choose a new justice if they don’t want to retain Edmunds. The constitution requires that justices shall be elected by the voters of the state. The governor, not the voters, would choose someone to replace Edmunds under the new method.

The lawsuit will be contested, and the courts will decide which side is right. But the legislature invited a legal challenge by making this change in such a clumsy way. It should undertake comprehensive judicial reform rather than move pieces around in an inconsistent fashion for partisan reasons. In this case, a proposed constitutional amendment, put to a vote of the people, would have allowed a needed statewide discussion on the best way to choose Supreme Court judges.”

Click here to read the entire editorial.

News

North Carolinians believe that wealthy individuals and white people receive better treatment by the state courts than do black residents, Hispanics, low-income defendants or those without a lawyer, according to a recent Elon University Poll surveying registered voters about their political opinions and views of the state court system.

“The public in North Carolina have high levels of confidence in the local police force and generally believe most people receive fair outcomes in our court system,” said Kenneth Fernandez, an assistant professor at Elon and director of the poll.

“However, when asked specifically about how blacks, Hispanics, non-English speaking and low-income people are treated, most respondents acknowledge these groups frequently receive worse treatment by the courts.”

The poll included questions suggested by the North Carolina Commission on the Administration of Law and Justice, an independent commission convened earlier this year by Chief Justice Mark Martin of the Supreme Court of North Carolina.

More than 80 percent said they were at least somewhat confident in their local police or sheriff’s offices, though that number dropped when minority voters responded.

And nearly 66 percent said they were at least somewhat confident in the state court system.

But more than 75 percent of those surveyed believe the state courts are influenced by politics, and almost as many believe that judges’ decision are affected by the fact that they must seek election.

“These results may reflect the fact that North Carolina had the nation’s second-highest level of campaign spending in judicial elections in 2014,” said Jason Husser, an Elon assistant professor and assistant director of the poll. “Our state trails only Michigan in how much money all candidates spent in seeking seats on the bench.”

Elon’s live callers surveyed 1,234 residents between Oct. 29 and Nov. 2, 2015. The survey had a margin of error of 2.79 percentage points for a sample of North Carolinians weighted by age, gender, race and phone use.

See the full report of the poll here.

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Commentary

Last week’s ruling that North Carolina tax dollars may be used to support private schools with literally no standards of accountability at all has generated some scathing editorials from the state’s major newspapers. Here are a few excerpts:

From Raleigh’s News & Observer:

“It is distressing on its face, this idea that public money can go toward the expenses of private schooling. It crosses the divide between public and private, between church and state, between common sense and partisan ideology.

And yet, in a ruling with a clear partisan flavor, the North Carolina Supreme Court, having snatched the confrontation over a school voucher program out of the hands of the N.C. Court of Appeals where it should properly have gone, has upheld the Republican legislature’s voucher program. This is a devastating ruling for the future of public education.”

From the Greensboro News & Record:

“In 1997, the N.C. Supreme Court unanimously delivered its landmark Leandro ruling that declared the state has an obligation to offer every child a “sound, basic education.”

In a 4-3 decision Thursday, the court regrettably took a big step back from that principle, finding that the state’s Opportunity Scholarship Program is constitutional.”

From the Fayetteville Observer (after noting that it does not oppose vouchers):

“That said, we do have a deep concern about the lack of accountability in the voucher program, an issue raised in Justice Robin Hudson’s dissent. ‘The main constitutional flaw in this program,’ she wrote, ‘is that it provides no framework at all for evaluating any of the participating schools’ contribution to public purposes; such a huge omission is a constitutional black hole into which the entire program should disappear.’

The investment of tax dollars must be accompanied by accountability. The General Assembly needs to remedy that problem. If it does, we expect the voucher program to improve the lot of some students who otherwise might fall into the cracks and never see success.”

Stay tuned. There will be lots more like this to come.
News

The N.C. Supreme Court ruled that public dollars can be used for vouchers that allow low-income children to attend private schools in North Carolina, in a ruling released late Thursday afternoon.

That will mean that funding will continue for the voucher program this upcoming school year.

In the 55-page opinion released late Thursday afternoon, N.C. Chief Justice Mark Martin said that the legislation creating the vouchers did not overtly counter the state’s constitution, and therefore the court could not rule the program unconstitutional.

“Our constitutionally assigned role is limited to a determination of whether the legislation is plainly and clearly prohibited by the constitution,” Martin wrote. “Because no prohibition in the constitution or in our precedent forecloses the General Assembly’s enactment of the challenged legislation here, the trial court’s order declaring the legislation unconstitutional is reversed.”

You can read the full decision, including the dissents, here.

Opponents of the measure had argued that the private school vouchers drain needed resources for public schools, and that it violated the state constitution to send public money to unaccountable private schools that are often religious in nature and can pick and choose (or discriminate against) their students.

Proponents, on the other hand, said the “opportunity scholarships” offered a needed educational choice to poor families unable to afford private schooling on their own.

For background, read this excerpt from an earlier article from N.C. Policy Watch reporter Sharon McCloskey:

In December 2013, groups that included taxpayers and the state and local school boards filed two separate lawsuits, alleging that the law violates state constitutional provisions requiring the expenditure of public funds exclusively for public schools, and contending that a voucher program wholly devoid of standards fails to meet the state’s obligation to provide all children with a “sound basic education” and thus does not satisfy the constitution’s “public purpose” provision.

[Superior Court]Judge Hobgood agreed with the challengers and temporarily blocked implementation of the program this past August, but state appellate courts later allowed monies to flow to families already approved for vouchers for the current school year while the cases proceeded in the courts.

The Supreme Court has likewise allowed the application process for vouchers next year to move forward while it considers the appeal.

Commentary

Editorial pages and good government advocates are weighing in this morning in praise of the U.S. Supreme Court’s decision to send North Carolina’s gerrymandered legislative maps back to the state Supreme Court for further review. This morning’s Fayetteville Observer calls the decision a “setback” for gerrymandering and concludes this way:

“We don’t know how this will be settled, but it reminds us that the creation of a nonpartisan redistricting commission is the real solution that we need.”

Meanwhile, Raleigh’s News & Observer terms the ruling a “voter victory.” It also notes that:

“Redrawing legislative and congressional districts is a task that ruling parties take on after a census. It’s true, as Republicans have claimed, that Democrats drew districts to their advantage when they were in power, but they did not go to the extremes the GOP did.

Think of how much time and trouble and money the state could save if it established a bipartisan commission to draw districts every 10 years. But don’t expect that to happen while Republicans continue to enjoy being in power after 100 years out of it.”

And for more details on how a nonpartisan solution is within easy reach of the General Assembly, turn over to the right side of the N&O editorial section and read this op-ed by Common Cause board member and retired N.C. State professor Larry King in which he explains how GOP lawmakers like Representatives David Lewis and Bert Jones have done one of the all-time flip flops on the issue. As King explains:

“Republican Party leaders need to let the democratic process play out. This is legislation they have long championed. North Carolina Republicans remember all too well how frustrating it was when their voices weren’t heard because of gerrymandered districts. Redistricting reform ensures this never happens again. It’s time to end gerrymandering once and for all in North Carolina, and it starts with letting H92 be heard in committee.

The residents of North Carolina deserve no less.”