The NC Supreme Court has been speeding up political cases. Is it because of the election?
Five high-profile political lawsuits have rocketed through the typically slow legal system in the last year, after the North Carolina Supreme Court used an obscure procedural maneuver to speed them up.
Critics suspect partisan motives. Yet supporters say these cases, which will affect the entire state, are exactly the sort of cases the court should speed up to resolve as quickly as possible.
And in an election year when the political balance of power on the state’s highest court could flip, this typically arcane process has been thrust more into the mainstream.
The formal name for the move is a bypass petition. It speeds up cases by letting them skip part — or all — of the legal proceedings before the N.C. Court of Appeals, and instead jump from trial straight to the Supreme Court. That can shave months, even years, off of a case.
It’s also very rare. In many recent years, the court hasn’t granted a single bypass petition, according to an analysis of court data by The News & Observer. Sometimes it grants one or two. This year it granted four, plus another in late 2021. All were in political cases, including some in which the political stakes are so high — redistricting and voter ID — that they’re getting national attention.
The Supreme Court currently has a 4-3 Democratic majority. At least one of the recent votes on speeding up a case came down along strict party lines; other decisions weren’t publicly reported.
Those decisions were a prime focus at a recent debate between candidates for the two Supreme Court seats on the ballot this year. If Republicans win one or both races, the court will have a GOP majority starting in 2023.
So what are these five cases, which have people suddenly interested in appellate procedure?
Gerrymandering, voter ID, Leandro among cases
In all five cases, the court will examine whether Republican lawmakers violated the state constitution in recent years, when they passed laws on issues ranging from public education to voting rights.
▪ The Leandro case: A long-running dispute that argues public schools are so underfunded the courts need to step in and force lawmakers to spend more in the annual state budget — to the tune of nearly $800 million.
▪ Voter ID: Republicans’ sweeping 2013 changes to North Carolina election laws, including voter ID, were struck down in federal court for intentionally targeting Black voters. This lawsuit concerns the GOP’s next attempt, in 2018, to pass a different voter ID law.
▪ Redistricting: The court fast-tracked a trial over the legislature’s 2021 redistricting plans, ending in a 4-3 ruling along party lines that Republican lawmakers drew political districts so skewed in their favor that they violated the state constitution. The GOP then argued the court shouldn’t be able to make similar decisions again about maps in the future — an argument the court also sped up, to hear it this month.
▪ Felon voting rights: Anyone with a felony record who is out of prison can now vote in North Carolina, even if they’re still on probation or parole, due to a trial court ruling earlier this year. The Republican-majority N.C. Court of Appeals temporarily blocked that new rule for the primary elections this May. But before the appeals court could issue a more permanent ruling, the Supreme Court took the case out of its hands.
▪ Child sex abuse protections: In 2019 the legislature unanimously passed a law giving extra time for victims of child sex abuse to file lawsuits as adults, expanding the normal statute of limitations. However, a key part of the law was ruled unconstitutional at trial. Ervin signed the order to speed up the case, which the court eventually passed 4-3 with every Republican dissenting.
Supreme Court races could decide balance of power
Richard Dietz and Lucy Inman, who are running for one of the seats on the ballot this year and are both currently on the Court of Appeals, agreed that it can be appropriate for the Supreme Court to fast-track lawsuits by skipping the Court of Appeals. But they disagreed on the details.
Dietz, a Republican, said it should be used mostly in criminal cases — for example, if someone claims they’re wrongfully imprisoned.
Inman, a Democrat, said cases that could change who gets to vote in elections, or how elections will be run, shouldn’t linger for years if they don’t need to.
The other race on the ballot this year includes the only one of the four candidates who has actually been involved in making these decisions, incumbent Democratic Justice Sam Ervin IV. His Republican challenger, Trey Allen, suggested the Democrats on the court sped up the cases simply because they’re scared Republicans will win in November.
“I think that’s unfortunate,” Allen said. “I think that makes the court look like a political body.”
Ervin said he can’t talk about specific cases before the court, so he’s limited in how he can respond to criticism like that. But in general he said it’s false to accuse him of making decisions based on his own personal politics.
“I would challenge anyone to look at my record,” Ervin said. “You can find instances in which I have voted in ways that would not be perceived to be what one would expect, given my political position.”
Fast-tracking political cases
It wasn’t overly controversial in the past when the court made similar moves.
In 2014 a Republican majority on the court sped up five political cases right before that year’s elections.
Those moves had bipartisan backing, The N&O reported at the time, as a way to make the courts more efficient. Even though it was Republicans making the decision at the time, a former Democratic chief justice, Burley Mitchell, told The N&O that it was “a positive development .... really a breath of fresh air” for the court to be fast-tracking big cases that could affect the whole state.
Fast forward eight years and there is no longer such bipartisanship. Many Democrats continue to support the strategy, but many Republicans no longer do.
With their party now in the minority on the court, Republicans say the court doesn’t have a valid reason to speed up political lawsuits.
“And what’s the reason?” asked state Sen. Warren Daniel, a top Republican lawmaker, in an interview this summer. “I don’t see any other reason than they realize that this is probably not going to be a good political year for the Democrat members of the court, and they’re just trying to beat the clock.”
Democrats point to the redistricting case as a prime example of why it’s important to speed up political cases. In the 2010s, nearly every election for a decade was held under GOP-drawn maps later thrown out as unconstitutionally gerrymandered. But moving more quickly this year led to the newest maps being thrown out and redrawn in a matter of months, not years.
Republicans point to voter ID to make the opposite point: The groups challenging it already succeeded in blocking it for this year’s elections. So there was no reason to make sure the case was heard in 2022, Daniel said, other than to make sure a Democratic majority on the court heard it.
Beth Scherer, an attorney with Raleigh firm Fox Rothschild who is one of the state’s leading experts on state appellate procedure — she co-wrote a text on it, and maintains a blog dedicated to the topic — said the court absolutely has the power to speed up political cases if it wants.
“Does the Supreme Court exercise that discretion frequently? No, I don’t think that they do,” she added.
The data from the court system analyzed by The N&O shows the court typically grants one or zero bypass petitions each year. Historically, the court has also denied the vast majority of requests. This year it has granted all of them, as of late October — not counting one case that the side in question later dropped on its own.
Daniel, who co-chairs the Senate’s redistricting committee, was on the losing end in the initial round of this year’s gerrymandering case. It was sped up in multiple ways by the court.
“The plaintiffs, I give them credit for being creative and trying to get their case heard by sort of reading the tea leaves of politics,” Daniel said. “But I just think the court should approach this as they’ve done in a traditional manner.”
However, while the court does typically turn down most requests and often takes none at all in a given year, this also isn’t the first time the court has taken so many at once.
Scherer pointed to 2014, when the court sped up five politically prominent cases. Their subjects included coal ash pollution, tobacco companies and the constitutionality of spending taxpayer money on private schools, through the “Opportunity Scholarship” voucher program.
The Republican majority that made those decisions in 2014 was even more aggressive than the Democratic majority in 2022. Unlike this year, nobody in 2014 had even asked the court to speed up the cases. The justices decided on their own to do it. Even that was within the court’s power, Scherer said.
“I don’t want to speculate on why the Supreme Court does what it does, but it has the authority to do it,” she said.
Perhaps the most notable of the 2014 lawsuits was the one challenging the private school voucher program, which has grown by millions of dollars since the Supreme Court signed off on it. Republican lawmakers won after the court’s Republican majority at the time issued a 4-3 ruling along party lines, The N&O reported.
Politics, money and the court
With so many decisions in political cases coming down along strict party lines — whether it’s vouchers being declared constitutional by a 4-3 Republican majority, or partisan gerrymandering being declared unconstitutional by a 4-3 Democratic majority — the balance of power on the court matters a great deal to both parties.
“We have this expectation that judges should be fair and nonpartisan,” said Michael Bitzer, a political scientist at Catawba College, The N&O reported earlier this month. “But to expect no party politics, when we’re looking at the kind of cases that our appellate courts deal with, is not based in reality.”
In recent years, North Carolina has been home to some of the nation’s most expensive Supreme Court races. This year millions of dollars worth of ads have already poured into people’s TVs and mailboxes, with more still to come. Bitzer said those ads, more than the candidates’ records or rulings, will influence voters.
“We will see special interest groups barrage the airwaves, pushing the narrative one way or the other,” Bitzer said. “The average North Carolinian, no, they’re not going to read the opinion.”
The Brennan Center for Justice at New York University, in partnership with Kantar Media, tracks ads in judicial races across the country.
Douglass Keith, who runs the project for the Brennan Center, said many groups wait until the last few days of an election before dropping ads. That’s particularly true of the Republican State Leadership Committee, he said — a group focused on winning state legislative seats that’s also huge player in judicial election spending, due to its interest in Republicans winning gerrymandering lawsuits.
“I still expect to see a lot of outside money come pouring into these elections,” Keith wrote in an email. “And it still isn’t out of the question that North Carolina could break its own records for judicial election spending, given how important these races are.”
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This story was originally published October 27, 2022 at 10:35 AM with the headline "The NC Supreme Court has been speeding up political cases. Is it because of the election?."
