Private school vouchers. Requiring women to have an ultrasound before getting an abortion. Legislative building rules designed to curb Moral Monday protests. These are a few pieces of legislation passed by the General Assembly that have been struck down by North Carolina and federal judges. New voter ID laws are currently being contested by civil rights groups and could be deemed unconstitutional.
Without a doubt, these rulings have irked conservative lawmakers. But instead of examining the constitutionality of their policies, or allowing more amendments and debate, Republicans in the General Assembly have now fundamentally altered the court system to protect themselves.
This year's state budget contained a provision, added just the week before Gov. Pat McCrory signed it into law on Aug. 7, requiring a three-judge panel to rule on any constitutional challenge to state law. North Carolina is now the only state with such a judicial system. The new system not only helps shield state law from challenges, but also puts more power in the hand of an increasingly partisan and politicized judiciary.
The three judges on the panel—one from Eastern, Central and Western North Carolina—will be appointed directly by the Chief Justice of the state Supreme Court. That seat, which is up for election this fall, pits Ola Lewis, a Superior Court judge from Brunswick County, against Mark Martin, an outspoken conservative, who ran as a Republican before judicial races became ostensibly nonpartisan. New election laws have eliminated public financing for judicial races, so now judges' seats are more susceptible to big money from out-of-state donors.
"Increasingly, judicial elections, despite their formally non-partisan criteria have actually become very much partisan elections. The campaigning and the fundraising and the financing of those, I think, reflect that," said Mark Dorosin, managing attorney for the UNC Center for Civil Rights.
The new provision also creates additional burdens for plaintiffs and makes it more difficult to prove legislation to be unconstitutional, Dorosin said. "It's doubly ironic because if there is a claim that the state is acting in an unconstitutional manner, we want to make sure that those cases are heard in the most efficient and most effective ways possible," Dorosin said. "I think this process is the antithesis of that."
In addition, all legal challenges to state legislation will have to be heard in Wake County. If a law were found unconstitutional by the three-judge panel, the ruling would be automatically stayed and the case would be appealed directly to the state Supreme Court.
Similar panels have been tried and rejected at the federal level. Congress repealed the law mandating three-judge panels at the trial level for constitutional challenges in 1976.
In 1972, legal scholars Elliott Marks and Alan Schoem wrote in the American University Law Review that while there were problems with solitary judges making weighty decisions, "the three-judge court procedure has given rise to excessive and complex litigation which has become more acute than the original evil it was designed to eradicate."
Our history of politicizing the judicial system goes back even further. After the U.S. Supreme Court struck down New Deal policies, President Franklin D. Roosevelt attempted to stack the court with justices friendly to him. He was was roundly criticized for breaching the separation of powers in what was known as the court-packing plan.
"I think we are seeing the state-level parallel of that," Dorosin said. "Our legislature's court-packing plan."
This article appeared in print with the headline "Stacking the deck"