North Carolina voters will soon decide whether their state constitution will be defined by a slim Democratic majority that has broadened civil rights or by a new conservative majority that will narrowly interpret the rights of voters, criminal defendants, and people seeking abortion care.
Both parties are pouring millions of dollars into the election for two seats now held by Democrats. Republicans have formed new groups to funnel money into the race. And national conservative organizations could drop millions on ads in the final days of the election.
A recent poll by WRAL in Raleigh suggests that one race is too close to call, though the Republican candidate, Trey Allen, holds a two-point lead. In the other race, the Republican candidate, Richard Dietz, holds a five-point lead, but nearly a third of voters are still undecided. Another poll by a conservative group claims the GOP candidates have a substantial lead, with fewer undecided voters. Early voting begins next week.
The two Democratic candidates, Justice Sam Ervin IV and Court of Appeals Judge Lucy Inman, have both reported raising more than $1 million, around twice as much as their Republican opponents. All four candidates, including Republican Court of Appeals Judge Richard Dietz, are running ads touting their qualifications and independence. They’ve mostly steered clear of discussing hot-button issues. But at a debate last month, Republican candidate Trey Allen, a former clerk to Chief Justice Paul Newby who’s challenging Ervin, did suggest that the current court hadn’t shown enough deference to the legislature.
The Republicans will be backed by millions in outside spending. A former member of Congress recently created a group called “Win the Courts” to help Republican candidates. A GOP campaign donor launched Stop Liberal Judges. And Justice Phil Berger Jr.—whose father is North Carolina Senate president and a defendant in voting rights cases at the high court—funded a political action committee that spent money in the GOP primary.
Conservative groups in D.C. are also pouring money into the race. A billionaire-backed organization called Fair Courts America has pledged to spend $22 million—a record-breaking sum—to help conservative high court candidates around the country. The Judicial Crisis Network, a dark-money group whose leader has lied about spending in high court races, could funnel money into groups that run ads attacking the Democrats.
In recent North Carolina Supreme Court elections, the National Democratic Redistricting Committee (NDRC) and the state Democratic Party also gave large contributions to the candidates. This year, Planned Parenthood will spend more than $1 million to support Ervin and Inman, and the group noted that the court could soon decide if the state’s 20-week abortion ban is constitutional.
The Republican State Leadership Committee (RSLC) has shelled out millions in North Carolina’s previous high court elections, and this week, it began airing ads in other crucial judicial races. Both the NDRC and the RSLC have had a stake in redistricting lawsuits that polarized the court and raised questions about glaring conflicts of interest.
In recent years, the North Carolina Supreme Court has cracked down on blatant partisan gerrymandering by the Republican-led legislature. In February, the Democratic majority struck down congressional districts and held that the state constitution protects “the equal power of each person’s voice in our government through voting in elections that matter.” (This ruling has been appealed to the U.S. Supreme Court under the absurd and dangerous “independent state legislature” theory.)
After the ruling, the RSLC pledged to spend millions—more money than ever before—in this year’s high court elections. The RSLC, which also spends big in legislative races, is focusing on states where the courts have blocked GOP gerrymandering. The group claimed that its spending would help “keep redistricting in the hands of the people.”
The first time the RSLC ever spent money on a judicial race was 2012, when Newby was on the ballot and a racial gerrymandering case was pending at the court. The RSLC had helped draw the gerrymandered election districts, and they helped maintain the conservative majority that eventually upheld them.
But the North Carolina Supreme Court races will decide much more than the future of redistricting. Since Democrats took over in 2017, the majority has issued a series of groundbreaking rulings in criminal justice and voting rights cases. Many of these groundbreaking opinions were authored by Justice Anita Earls, a former civil rights attorney elected in 2018 despite the legislature’s attempts to help the Republican incumbent.
The court put a constitutional limit on prison sentences for minors charged as adults. Before this ruling, children faced the possibility of life behind bars in North Carolina. But the majority struck down life sentences for crimes committed by juveniles, no matter how heinous. A life sentence “deprives the juvenile of a genuine opportunity to demonstrate he or she has been rehabilitated and to establish a meaningful life outside of prison,” the court explained.
In 2020, the justices drastically limited the impact of a bill that repealed the landmark Racial Justice Act (RJA), a law that allowed people on death row to be resentenced if racial bias infected the process. The justices invalidated a provision of the repeal bill that would’ve sent four people back to death row after their sentences had been commuted to life imprisonment. They also ruled that 130 people on death row must get hearings on their racial bias claims under the RJA.
The court has also finally cracked down on racism in jury selection, after decades of inaction and evidence showing that prosecutors routinely struck Black people from jury pools. In February, the justices vacated a conviction due to bias in jury selection and said that such racism “undermines the credibility of our judicial system as a whole, thus tearing at the very fabric of our democratic society.”
Newby, a former prosecutor, dissented in all of these cases. He called the decision to ban juvenile life sentences “judicial activism” and accused his colleagues of creating “dangerous criminal policy.” In his previous campaigns, Newby has denied witnessing any racism in the criminal justice system during his 40-year career.
The court recently heard crucial voting rights cases and will soon rule on a lawsuit challenging the state’s ban on voting by thousands of people on parole or probation. The majority has stopped several attempts by Republicans to take over elections administration. And they have (so far) blocked a 2018 voter ID law that could disenfranchise Black voters and others.
Yet all of the North Carolina Supreme Court’s progress in protecting individual rights and addressing discrimination in the criminal justice system could come to a screeching halt next year if voters elect a new Republican majority. There are crucial voting rights cases pending at the court right now. And a GOP majority would surely uphold a 20-week abortion ban and find no right to bodily autonomy under the state constitution.
The stakes have never been higher. That’s why national groups are pouring money into these races. If the GOP wins either seat, that majority will be in power for at least five years, barring any unexpected turnover.
The partisan divide on the court is clear, and it’s gotten deeper. The three Republican justices dissented in all of the cases mentioned above. And research has shown the three GOP justices have voted together in more than 90 percent of non-unanimous cases this year.
Republicans have long understood how crucial it is that they control the North Carolina Supreme Court. In 2013, when they took over the legislature, a consultant’s memo suggested they could stay in power for more than a century if they maintained control of the court. The memo told lawmakers to change how judges are chosen to help GOP candidates, and they spent the next several years trying and failing to pack the state Supreme Court.
Progressive voters, however, often overlook judicial races or even skip them on the ballot. Former Chief Justice Cheri Beasley, a former public defender and current U.S. Senate candidate, lost her 2020 bid for reelection by a mere 401 votes. Since he narrowly defeated Beasley, Newby has taken a wrecking ball to the judiciary’s administrative staff and installed loyal Republicans like Allen. And he pushed a dubious interpretation of ethics rules that allows judges to become permanent candidates, raising money for reelection throughout their terms. The 2020 election brought the high court to the brink of a Republican takeover because a few hundred Democratic voters ignored the judicial races. This year’s election will determine if GOP judges can finally transform an independent court into a lapdog of the right-wing state legislature.