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  • Writer's pictureMario Nicolais

North Carolina to skew checks and balances? Does it even matter?

The political drama unfolding in North Carolina recently trumped even the transition of the new president-elect for many political junkies. An acrimonious gubernatorial election between incumbent Republican Patrick McCrory and Democrat Roy Cooper led to a nearly month-long standoff as Cooper won with a razor-thin margin.

Now that acrimony has spilled into sweeping new laws passed by the outgoing Legislature before Cooper takes office. The lion’s share of media attention has been focused on the power stripped from the governor’s office — and therefore, by design, the Democratic governor-elect — by the Republican Legislature and signed by the outgoing McCrory.

But the struggle is not limited to the executive and legislative branches. The post-election special session also passed bills changing how seats on the state Supreme Court will be filled. While North Carolina elects its justices — unlike the appointment and retention system used in Colorado — candidates there do not run in primaries or have their political affiliation appear on the ballot. The new law will require both going forward.

Such reactionary measures lead many to question whether the North Carolina Legislature is overstepping democratic checks and balances. That is an easy accusation to level. It is especially easy given the timing. Not only did Cooper defeat McCrory in November, but Democrats gained a 4-3 advantage in the North Carolina Supreme Court as well. Judge Mike Morgan, a Democrat, defeated Justice Bob Edmunds, a Republican. Combined, it meant two-of-three branches of government swung from Republican control to Democrats. The solidly Republican Legislature, working with the embittered McCrory, embarked on a new campaign to strengthen the one branch they continued to hold. With Cooper yet to take office, Democrats have been powerless to stop change.

While the optics — and, almost unquestionably, the electoral motivation — seem bad, the actual effect is trickier to measure. For starters, the new process isn’t really all that new in North Carolina. In fact, North Carolina Supreme Court elections operated under the same format for decades before a 2002 legislative act that implemented the current system. Except in 2002, Democrats held the Legislature and appeared to be reacting to Republican victories in the judicial branch.

Given the context of history, recent events cannot be surprising. To some extent, they are predictable. But that doesn’t mean it is healthy.

I’ve previously sung the praises of Colorado’s judicial nomination process on several occasions. The North Carolina dispute only further validates that position. Direct election of judges causes too many problems.

First, whether officially partisan or nonpartisan, elections will always be political. If you’ve paid attention to the “nonpartisan” school board races in metro-Denver over the past five years, it is the official designation of a misnomer. The same holds for judicial elections. Because party apparatuses can garner large blocks of votes, and because political parties have vested interests in judicial seats, “nonpartisan” elections become little more than a charade for the partisan fight they truly represent.

More importantly, any direct judicial election makes it much more unlikely to elect the most qualified individuals to serve on the bench. And in no branch of government is competency more important. Unlike legislators chosen to represent their constituents in a chamber of many, the charge of a judge is to parse and apply the law. And to do so in case after case after case. But what makes a good judge does not necessarily make a good candidate. Indeed, the nuanced approach valued in judges can be deadly in the soundbite reality of political campaigns.

For good or bad, North Carolina chose to change its balance of powers again. But if they want real change — judicially — maybe they should look west to see how Colorado does it.

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