Ervin weighs in on recusal, redistricting, and public financing

Ervin weighs in on recusal, redistricting, and public financing

- in Law and the Courts

In a one-sentence order with no underlying rationale, the state Supreme Court yesterday denied a request by groups and individuals suing to overturn the 2011 redistricting plans that Justice Paul Newby recuse himself from that case.

That decision came as a disappointment to the plaintiffs, who nonetheless remain confident that they’ll prevail on their challenge to the redistricting plans.

“We believe we have a strong case,” Rev. William Barber of the state NAACP told the News and Observer.  “If it’s heard fairly, based on the law and not on any other outside influence, we believe we will be successful on the merits.”

But it likely came as little surprise to Court of Appeal Judge Sam Ervin IV, Newby’s challenger in the recent Supreme Court election that saw millions of dollars in support of Newby flow in from conservatives interested in seeing the redistricting maps upheld by the court.

Speaking to a group about election reform just days before the court’s order, Ervin called the law on recusal murky and said that he still believed his colleagues decided cases on the merits, not on their own politics.

The bigger casualty from the election, Ervin said, may be the state’s public financing system for judicial races – a particular concern given that four Supreme Court seats will be up for reelection in 2014.

“The long term lesson that folks are likely to take away from this election might be troubling,” he said. “I don’t know if it will be viable to run for the Supreme Court in this state out of public financing, if people are willing to put that much independent expenditure money into a race and the amount of funding available through public financing is pegged at the current level.”

Buying the vote

If they share the same fate as the redistricting cases a decade ago, the current cases may still be winding through the courts when the 2014 judicial races take place.

They got their start in 2011, shortly after the General Assembly approved the redistricting plans, when the state branch of the National Association for the Advancement of Colored People and a collection of individual voters and organizations filed two separate complaints in Wake County Superior Court.

Together, they alleged that Republican legislators secretly drafted the plans — with help from Republican State Leadership Committee redistricting mapmaker Tom Hofeller — in a way that diluted the African-American vote in several districts across the state.

The two cases have since been consolidated, but their progress has been stalled by a dispute over the production of emails and other documents between the legislators and their attorneys – including documents concerning the amount of state money spent on the alleged secret redistricting plans, which legislators have refused to turn over.  The Supreme Court heard argument on that issue on July 10, but has yet to hand down a decision.

The parties have since filed motions for summary judgment – plaintiffs looking for an order overturning the plans and defendants looking for a dismissal of the cases. The parties will argue those motions in January, and a trial is tentatively scheduled for February – though a ruling on the discovery dispute before the Supreme Court may extend that date.

In the meantime, the reelection campaign of Justice Newby heated up and drew national attention as millions of dollars in conservative super PAC money helped flood television airwaves with his “Newby Tough But Fair” ad.

As reported previously, that money included more than a million dollars from the Republican State Leadership Committee in Washington, D.C., a group which, with the services of Hofeller, shaped redistricting plans to ensure Republican legislative victories here and elsewhere across the country. That’s an interest shared by several state conservatives who also donated to the RSLC during this past election; in September alone, Art Pope’s Variety Stores donated $150,000, and businessmen Phil Drake and Bob Luddy, $50,000 each.

That money fueled speculation that Republicans were trying to buy Newby’s vote in the redistricting cases, then before the Court on the discovery dispute, and led to plaintiffs’ request that Newby remove himself on the grounds that, even if he believed he could be impartial, public sentiment was veering otherwise.

View from the bench

The reasons for the court’s denial of the recusal motion will remain a mystery, unless a written opinion is forthcoming sometime soon.

But their call on that question was likely not an easy one, Ervin said. “Recusal is a very difficult decision because the subject area is very murky.”

There are provisions of the code of judicial conduct designed to control influence in judicial elections, he added – the $500 limit on contributions, for example.  “The presumption is that you’re not going to sell your soul for $500,” Ervin said. And those provisions assume that public financing is all that’s at play.

Some guidance also comes from the ethics proviso that judges not sit on cases where their impartiality is likely to be reasonably questioned, “which is rather hard to figure out sometimes if you’re trying to conscientiously follow the rules,” he added.

“All we’ve really got otherwise is the Caperton case out of West Virginia, and really all I got out of that case is that if somebody spends $3.5 million for a case that directly affects them, it’s a due process violation for the judge to sit on it. But where’s the cut-off?  We know it applies when the person who gives $3.5 million owns stock in the company that’s got a case before the court. But how much more diffuse does it have to be before that rule doesn’t apply anymore?”

Ervin admitted that, recusal aside, waning public confidence is a concern.

“I have been very troubled, starting at the U.S. Supreme Court level, when everything they do is viewed through some type of partisan lens. You know, ‘this person didn’t vote with his fellow Republicans or his fellow Democrats.’ I don’t think that that’s what they’re doing. But if the public gets the perception that judges are doing nothing other than voting their politics, that’s going to drag public confidence down.

And to the extent that we have large amounts of political money flowing into judicial races, it doesn’t take a rocket scientist to see the effect that’s going to have on the public.  I’m just a history major but I can see that.”

A system undone

Ervin estimates that he got outspent in the media somewhere in the range of ten-to-one.  Given that, he still came close, winning 48.1 percent of the vote to Newby’s 51.9 percent.

But the real loser in this election is the state’s public financing system, he said.

He credits that system with enabling him to run for the Court of Appeals in 2008, at a time when as a Utilities Commissioner he was subject to various restrictions on campaign contributions.

“If I had not had the ability to access the public financing system, I probably would not have been able to run a credible campaign,” he said.

This time around, he thought about not taking the public financing, given the spending restrictions that come with that commitment, but decided to stick with it because of his philosophical support of the system.

“The public financing system was really intended to control the total amount of expenditures made in judicial races and to alleviate the concern, at least in the public mind, that judges are going to be beholden to their contributors. That casts a pall over the perceived impartiality and fairness of the whole system.”

Ervin also said that he went into the campaign knowing that there would be super PAC involvement and that he might get outspent.  But he didn’t expect the magnitude by which that would happen.

“Can a candidate who doesn’t have some of the strengths that I have? I’ve been involved in political campaigns for 30 years in this state, my name is not unknown, I’ve got a reasonably good reputation within the bar, and I have won within the last four years so some people knew who I was. If I can’t win getting outspent ten-to-one, who can?”

The only way to win, Ervin said, absent changes to the public financing system, is to opt out.

“Ifsomebody’s going to form an independent expenditure committee and raise the amounts of money that was raised in my race, then the only way you yourself can try to combat it is to stay out of public financing and try to raise a comparable amount of money. And that raises all the problems that the public financing system was intended to combat.

I make no bones about that. I’ve got to run at least one more time in my life, for reelection to the Court of Appeals in 2016, and the idea of having to get back out and try to raise money again leaves me very, very cold. But you do what you’ve got to do.”


About the author

Sharon McCloskey, former Courts, Law and Democracy Reporter for N.C. Policy Watch, writes about the courts and decisions that impact North Carolina residents. McCloskey also wrote for Lawyers Weekly and practiced law for more than 20 years. Follow her online at or @sharonmccloskey.