Colorado Can’t Top This Southern State On Controversial Court Rulings

The Colorado Supreme Court’s December 19 ruling to remove former President Donald Trump (R) from the 2024 ballot was unprecedented and sparked nationwide debate, but its ultimate fate will be decided by the U.S. Supreme Court, which heard oral arguments for the case on February 8. The same goes for the Maine Secretary of State’s December 28 decision to remove Trump, who is leading President Joe Biden (D) in multiple polls, from the 2024 ballot in a second state.

A December decision by the Wisconsin Supreme Court, meanwhile, forced a redraw of Wisconsin’s state legislative maps. As a result of those new maps, which were approved by Governor Tony Evers (D-Wisc.) on February 19, “Republicans will now have an uphill fight to maintain their majorities this year and in 2026,” the Wall Street Journal editorial board noted, adding that “the left could soon run all of state government.”

The Wisconsin Supreme Court, which shifted to a progressive majority in 2023, will rule later this year on a lawsuit filed by unions seeking to overturn Act 10, the landmark entitlement reform enacted by former Governor Scott Walker (R) in 2011. Act 10, which restricted collective bargaining and gave workers a say in whether or not to support a union, has since saved Wisconsin taxpayers more than $16 billion.

Should the Wisconsin Supreme Court overturn Act 10, it would drive up costs for Wisconsin taxpayers by billions of dollars moving forward. Beyond Wisconsin, some are concerned that such a decision out of a battleground state, on the heals of the ballot access ruling in Colorado, could embolden justices in other states to push the envelope and issue decisions that are akin to setting policy from the bench.

Controversial Supreme Court Rulings Are Nothing New In North Carolina

Among all U.S. residents, North Carolinians in particular are no strangers to controversial state supreme court decisions. Years before the current drama in the Colorado and Wisconsin Supreme Courts garnered national attention, North Carolina Supreme Court justices handed down multiple rulings, some of which are still being adjudicated, that have been criticized as examples of judicial activism and legislating from the bench. In that respect, the 2022 ruling by the then-Democratic majority North Carolina Supreme Court, which found that a lower court judge could overturn two constitutional amendments approved by voters, stands out.

In the 2018 general election, 57% of North Carolina voters approved a constitutional amendment to lower the state’s personal income tax rate cap from 10% to 7%. Another constitutional amendment on that same ballot instituting a photo ID requirement to vote passed with support from 55% of voters. Yet the will of North Carolina voters was subsequently overruled by four members of the North Carolina Supreme Court, all Democrats, who issued a ruling that could pave the way for the ultimate overturning of voter-approved constitutional amendments based on an unprecedented legal theory. The theory posits that because the two measures were referred to the ballot by a legislature comprised of gerrymandered districts, the measures were illegitimate despite being approved by voters.

Though the then-Democrat-controlled North Carolina Supreme Court ruled that a trial court could overturn voter approved constitutional amendments using a novel legal theory, the Democratic justices sent the case back to the trial court for further deliberation before making a final ruling. Further developments in this case, which is now sitting with a three-judge panel, could occur as early as March.

“The majority concedes that constitutional procedures were followed,” North Carolina Supreme Court Justice Phil Berger Jr. (R) wrote in his dissent from the 2022 decision made by his Democratic colleagues, “yet they invalidate more than 4.1 million votes and disenfranchise more than 55% of North Carolina’s electorate.”

“When Democratic Supreme Court justices tried to use dubious legal ideas to block the will of the people, some of us started referring to them as the Usurper Four,” said Mitch Kokai, senior political analyst at the John Locke Foundation, a free-market think tank focusing on North Carolina. “Voters replaced two of the four Democrats with conservatives during the last election cycle. The future of the state’s constitutional law depends on continued vigilance from voters.”

In the 2022 midterm elections, Republicans won two state supreme court races, flipping the court to a 5-2 GOP majority. Voter ID requirements will be in effect in North Carolina for the 2024 elections. That’s because, in April of 2023, the now GOP majority North Carolina Supreme Court upheld the voter ID law enacted by legislators weeks after the 2018 constitutional amendment to require voter ID was approved by voters. The income tax cap reduction, however, remains an unresolved matter.

North Carolina Governor Roy Cooper (D) and other Democrats, like President Biden, can be expected to talk frequently about alleged threats to democracy in 2024, with the Associated Press reporting on February 17 that it is “central to Biden’s campaign messaging.” Yet it won’t be lost on North Carolinians that many of the same politicians offering warnings about threats to democracy have themselves backed a decision by four judges that went against the will of a clear majority of North Carolina voters.

Controversial state supreme court decisions go back much further in North Carolina than the past decade. In fact, the North Carolina Supreme Court is still adjudicating a three decade-old lawsuit, referred to as the Leandro case, alleging that the state is underfunding certain school districts.

State supreme court justices are selected by voters in 22 states. 14 of those 22 states hold nonpartisan judicial elections, while eight hold partisan elections. In the past few years, lawmakers in North Carolina and Ohio moved their states to partisan judicial elections, joining Alabama, Illinois, Louisiana, New Mexico, Pennsylvania, and Texas. Given the heightened importance of state supreme court majorities, many believe the most open and democratic approach is to have voters decide who fills state supreme court seats and that it should be done in partisan elections in order to maximize transparency and voter information.

Evidence suggests putting the selection of state supreme court justices on the ballot can lead to greater voter engagement. Researchers at Michigan State University and the University of Pittsburgh examined 260 state supreme court elections across 18 states from 1990 to 2004, finding that “increased spending significantly improves voter participation in these races.”

Recent decisions by the Colorado, Wisconsin, and North Carolina Supreme Courts have driven home the importance of state supreme court control when it comes to setting policy. Voters can put one of the two parties in charge of both the governor’s mansion and legislature. As has been demonstrated in a number of states, however, legislatively enacted and voter approved reforms can be overturned or reversed if the state supreme court is in the hands of political or ideological opponents. Expect media attention and campaign spending on state supreme court races to escalate in the coming years, and for good reason.