When Anita Earls won a seat on the North Carolina Supreme Court this past November, much attention went to how the new Democratic judge’s presence on the court might affect high-profile legal issues like gerrymandering or the ongoing power struggle between the governor and legislature.
Earls was sworn in Thursday after unseating a Republican justice. After taking her oath, she told the assembled crowd about how she was inspired by her grandmother, a black woman who was born in 1899 and never learned to read or write. Earls then spoke of her own work as a civil rights attorney, and she praised several state and local programs dedicated to addressing racial inequities in the North Carolina justice system.
“While I am grateful we have come a long way, we have much work in front of us,” Earls said.
But legal experts say while Earls’ victory got the headlines, there are actually numerous lower-profile races that could end up having a greater impact on shifting the state’s court system to the left.
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Earls is just one person on a court in which an opinion needs at least four justices to sign on to form a majority. And even if she hadn’t won, the court would still have a Democratic majority. Her win shifted the court’s balance from a 4-3 to a 5-2 Democratic majority.
“I don’t see a huge seismic shift on the court,” Bob Orr, a former N.C. Supreme Court justice, said in an interview. Behind-the-scenes debates go into every ruling, he said — plus those debates are over legal philosophies, not partisan politics.
“On the Supreme Court, with seven justices, you’re only one judge,” he said. “So you can be as crazy liberal as you like, as crazy conservative as you like. You still have to convince at least three other judges.”
The more notable victories for criminal justice overhauls and more progressive stances on civil court issues, experts told The News & Observer, happened in local contests for county sheriffs and prosecutors, or in the multiple seats on the North Carolina Court of Appeals that Democrats also flipped.
The chart below shows the winning political party in some of the November 2018 judicial races that will affect the most people, and whether that seat had flipped parties or not.
|NC Supreme Court||D||yes|
|NC Court of Appeals (seat 1)||D||yes*|
|NC Court of Appeals (seat 2)||D||yes|
|NC Court of Appeals (seat 3)||D||yes|
|Wake County Sheriff||D||yes|
|Wake County District Attorney||D||no|
|Durham County Sheriff||D||no|
|Durham County District Attorney||D||no|
|Mecklenburg County Sheriff||D||no|
|Mecklenburg County District Attorney||D||yes*|
*In both the Mecklenburg County DA race and one of the three Court of Appeals races, the Democrat who won was technically an incumbent. But in both cases, they had been appointed to those seats to fill out the term of a Republican who had won the previous election.
“I think it really is true that the DA elections are the areas in which there can be the most potential for change,” Enrique Armijo, an associate dean of the Elon University School of Law, said in an interview. “And the reason for that is, for better or worse, our criminal justice system embeds so much discretion in prosecutors. And it’s reasonable that moving from a Republican district attorney to a Democratic district attorney could have some consequences that are more defendant-friendly.”
How we got here
Some areas, like Pitt County, elected a Democratic district attorney to replace a Republican. Other areas, like Durham County, doubled down on reform-minded prosecutors.
In 2018, Durham residents voted out Roger Echols, the progressive Democrat who had been the district attorney. They replaced him with Satana Deberry, a Democrat who promised to be even more progressive.
In June, Deberry told the Durham Herald-Sun that she planned to stop prosecuting people caught with small amounts of marijuana and that she wanted to stop requiring people to post bail if charged with low-level crimes like trespassing or prostitution. And last month she said she won’t prosecute teens who are arrested by school resource officers on campus.
“We think there are better ways to deal with those issues than giving kids a criminal record,” Deberry told the Herald-Sun in November.
Her push to cut down on the so-called school to prison pipeline is being received warmly by Durham’s new sheriff, Clarence Birkhead, the Herald-Sun reported. Like Deberry, Birkhead is black and ran on a platform of criminal justice reform. And he’s not alone among sheriffs statewide.
In the 2018 elections, North Carolina’s seven largest counties — Mecklenburg, Wake, Guilford, Forsyth, Cumberland, Durham and Buncombe — all elected black sheriffs. Those seven counties are home to nearly 40 percent of the state’s total population, and the majority of the state’s black residents, according to state demographics data. The News & Observer previously reported that in five of those seven counties, voters elected a black sheriff for the first time ever.
Pitt County, which is home to Greenville and is the state’s 14th biggest county, has a black population that’s significantly higher than the statewide average according to state data. But it has never had a black sheriff or a black district attorney — until this November, when voters elected black Democrats to both of the county’s top law enforcement positions, local news station WITN reported. Paula Dance is the new sheriff and Faris Dixon is the new district attorney. WITN also reported that Dance is the first black woman elected sheriff anywhere in North Carolina, and just the fifth ever in the United States.
Could liberals change law enforcement?
Armijo said having more liberal politicians in charge of law enforcement jobs could have numerous outcomes — juries could become more racially diverse, he said, or defendants could start getting better plea deals or lower bail amounts.
“You never hear about the cases that don’t get brought, or the charges that could’ve been greater but are lesser,” Armijo said. “So it’s hard to say, or to point to any one particular thing. But I think we will see a more collaborative effort in criminal justice, and some changes that — I don’t want to say are easier on criminal defendants — but are recognizing that most of the people in our criminal justice system don’t have the ability to pay, whether it’s for representation, or bail, or fines.”
The sheriffs and prosecutors decide which types of crimes in their community get pursued and sent to trial. Then, it’s up to juries and judges to evaluate the evidence. Judges also hear civil cases about child custody, contract disputes, workplace issues and more.
A News & Observer analysis of all the 2018 judicial elections across the state — for judges and district attorneys — found that Democrats and Republicans split them almost exactly. Democrats won 100 seats, Republicans won 99 and unaffiliated candidates won another four races.
And with Earls, there are now three black or biracial judges on the seven-person Supreme Court. All are Democrats.
The Court of Appeals still has a Republican majority among its 15 judges. Despite Democrats winning all three seats up for election this year, Republicans retained an 8-7 majority. And unlike on the Supreme Court, where all the justices hear a case and vote together, cases at the Court of Appeals are typically heard by a panel of three judges. So Democrats cutting into the GOP majority makes it more likely that a case will have at least one Democratic judge hearing it.
“An individual court of appeals judge has so much power, just by the fact that you have an automatic right of appeal to the Supreme Court if you get a dissent,” Armijo said. “So even though there’s still a Republican majority on the court, if there’s a particular judge who doesn’t like an opinion of a panel, literally all he or she has to do is write a dissent and the case can go to the Supreme Court, which has a Democratic majority.”
He said that could have repercussions for everything from criminal cases to business and insurance cases.
“When you have stronger Democratic majorities or weaker Republican majorities, you have things that are more friendly to employees rather than employers, or defendants rather than prosecutors,” Armijo said.
Orr, however, said he thinks people usually read too much into a judge’s political party, since most do a good job of keeping their political beliefs out of the courtroom.
“The judicial ship of state will sail on without any major changes,” he said.
As an example, Orr pointed to the Stephenson v. Bartlett case in 2002, when he and other Republicans on the court ruled that legislative districts drawn by the Democrat-led General Assembly were racially gerrymandered and unconstitutional.
“The Democrats just went berserk,” Orr said. “Calling for impeachment and stuff.”
He acknowledges it was a party-line vote, but he said the ruling he and his fellow Republicans issued was also the outcome that the NAACP wanted. So he wondered how that ruling should have been characterized, politically speaking.
“It’s distressing for us who have been on the court when people just assume our decisions are based on our politics,” he said.
But Armijo said judges certainly have political preferences, and that they can come up on the bench — or behind closed doors when the justices decide how they want to vote. And that is where Earls, even though she’s just one member of a seven-person court, could have the greatest impact, he said.
“For the first time I can remember we have someone who was successfully elected to the appellate courts who ran very explicitly on a platform of social justice,” Armijo said. “And that’s Anita Earls, someone who has been working in this field for a very long time. It’s hard to predict the effects of that.
“But the opinions of someone who writes persuasively and from experience about civil rights issues — that can really define the legacy of a person as a judge but can also define the shape of the law.”