Top Statewide Race Could Have Significant Legal Impact | Eastern North Carolina Now

    Publisher's note: The author of this post is Mitch Kokai, who is senior political analyst for the Carolina Journal, John Hood Publisher.

    For the second straight election cycle, a race for a single seat on the N.C. Supreme Court could end up playing a more important role than most voters realize. An examination of the high court's voting pattern this year helps explain why.

    Incumbent Barbara Jackson, a registered Republican, is the only justice up for re-election to the seven-member court this year. She and other candidates will be able to file for that single seat starting June 18. Democrat Anita Earls already has announced plans to challenge Jackson.

    Democrats already hold a 4-3 advantage on the state's highest court. That's thanks to the 2016 election cycle, when Democrat Michael Morgan unseated incumbent Republican Bob Edmunds. The Morgan-Edmunds race attracted much less attention than contests for the White House and governor's mansion. Morgan's win shocked many Republicans, who saw GOP candidates sweep races for the N.C. Court of Appeals.

    Technically, the current election will have no impact on partisan "control" of the Supreme Court. Re-election for Jackson would maintain the status quo. An election win for Earls or another Democrat would extend the Democrats' advantage to 5-2.

    But the current justices' party affiliations fail to tell the entire story.

    In 2017, the politically realigned Supreme Court failed to produce a noticeable change in partisan rulings. The justices decided 48 of 58 cases (83 percent) unanimously. Democrats overruled Republicans, 4-3, just twice during the course of the year.

    After a year of relative harmony, a true party-line vote emerged in January this year. The Supreme Court ruled 4-3 in favor of Democratic Gov. Roy Cooper in his ongoing power struggle with the Republican-led General Assembly, including Senate leader Phil Berger. The Cooper v. Berger ruling threw out lawmakers' plans to combine state elections and ethics oversight boards into a new bipartisan group. (A revised version of that merged oversight board has survived legal challenges.)

    Since Cooper v. Berger, an interesting pattern has emerged. The high court has released opinions in 42 more cases, including the latest batch of rulings issued May 11. Justices have decided 33 of those cases (79 percent) unanimously. (There's one caveat: The court decided one case, 7-0, with three justices agreeing with the four-vote majority only in the case's outcome.)

    While that rate of 7-0 rulings remains fairly consistent with 2017, the majority and minority coalitions emerging from split rulings have changed.

    For one thing, the three Republican justices have ruled with the majority in all 42 cases. They also have written 12 of the 22 authored majority opinions. (In 20 cases, a unanimous court has issued brief "per curiam" rulings under no single justice's name.)

    Joining the Republicans in the majority in all 42 cases: Democrat Sam Ervin IV. Since Ervin also voted with fellow Democrats in Cooper v. Berger, writing the majority opinion in that case, he is the only justice to rule with the majority in all 43 cases in 2018.

    Ervin's concordance with the three Republicans (42 of 43 cases) exceeds his agreement with any fellow Democrat: Robin Hudson (39 cases), Morgan (38), and Cheri Beasley (35).

    Beasley has emerged as the court's most active dissenting voice in 2018. After writing a single dissent in 2017, she has authored seven so far this year. She also has supported two other dissenting opinions. Beasley has the court's lowest percentage (81) of voting with the majority in 2018. She's the Democratic justice who has been least likely to side with Republican colleagues.

    No opinion handed down since Cooper v. Berger has addressed partisan political disputes. It would be unwise to suggest that any data cited above point to a clear ideological shift on the court since that case. It's entirely possible that another courtroom fight between Cooper and legislative leaders might produce another 4-3 partisan split among the justices.

    Still, it seems clear that Ervin is comfortable working with his Republican colleagues under certain circumstances - even if that means voting against all three fellow Democratic justices. Ervin has sided with Republicans in 4-3 rulings three times this year, in cases with majority opinions from Republican Paul Newby (twice) and Jackson.

    Without Jackson's presence, it could become more difficult for Newby, Ervin, and Republican Chief Justice Mark Martin to cobble together a four-vote majority in cases involving substantive differences of legal philosophy.

    That's one more reason the state Supreme Court's single contested election this year should attract more attention than it's likely to receive.