Newby’s narrow win suggests broader philosophical changes in N.C. courts

By Rick Henderson

Raleigh, NC – It took five weeks to settle the final race, but when the N.C. Supreme Court’s session opens in a few weeks, there will be a new chief in Raleigh.

Republican Associate Justice Paul Newby defeated incumbent Democratic Chief Justice Cheri Beasley by roughly 400 votes. Nearly 5.4 million ballots were cast. Beasley, who was elevated to the court’s top spot by Gov. Roy Cooper in 2019, conceded to Newby on Dec. 12 after a hand recount of sample precincts statewide suggested she wouldn’t prevail if all the ballots were counted by hand.

The tally produced unusual drama. Andy Jackson, elections policy analyst at the Civitas Institute, said at a John Locke Foundation Shaftesbury Society event he counted eight times the lead changed on the State Board of Elections website before the counties began canvassing votes. Even in the sample recount, totals changed. When Beasley conceded, Newby had added 39 votes. Beasley 27.

Newby will become the state’s 30th chief justice. He’ll serve an eight-year term. He’ll be joined by two first-time justices, former Appeals Court Judge Phil Berger Jr. and former state Sen. Tamara Barringer. All three are Republicans. The other four justices are Democrats.

As chief justice, Newby will be the court system’s top administrator. He’ll pick the three-judge panels that initially review redistricting cases and constitutional challenges to acts passed by the General Assembly. Newby will also appoint the chief judge of the Court of Appeals, the chief administrative law judge, and members of the N.C. Judicial Standards Commission.

Own goal

Cooper’s decision to elevate Beasley, rather than pick someone not on the Supreme Court, was a bit of an own goal, former NCGOP Executive Director Dallas Woodhouse told Carolina Journal.

In 2019, when Republican Chief Justice Mark Martin retired, he left the court with five Democrats and one Republican — Newby. Newby immediately announced he’d give up his seat to run for chief in 2020. Beasley, who was an associate justice on the court, could have remained in that seat.

But Cooper moved Beasley to chief, forcing her to run for a full term this year. It also opened the associate justice seat she held, along with Newby’s.

In November, Berger won the vacant Newby seat and Barringer defeated Associate Justice Mark Davis, who Cooper picked to fill Beasley’s term.

“Had the governor not appointed a sitting Supreme Court justice to fill Mark Martin’s vacant chief justice’s position, then voters would have seen just two Supreme Court races on the ballot this fall,” said Mitch Kokai, John Locke Foundation senior political analyst. “Democrats would have kept at least a 5-2 majority, and they would still have Associate Justice Cheri Beasley.” 

“There’s a big difference between 5-2 and 4-3,” Kokai added. “The last time Democrats held a 4-3 advantage on the court, just three years ago, Republican justices were able to convince a Democratic colleague to cross the aisle on more than one occasion. In fact, during 2017 and 2018, there were more cases of 4-3 splits with the Republicans in the majority than party-line splits favoring Democrats.”

The Beasley versus Newby contest highlighted stark contrasts in judicial philosophies, as we have reported.

  • Beasley opposes Opportunity Scholarships, which give low-income kids a voucher to help offset the costs of attending a private school their parents choose.
  • She sided with the Democratic governor over the Republican-led legislature in a 2017 separation-of-powers lawsuit.
  • A state lawsuit is pending over the status of voter ID — which is part of the state constitution. Beasley has called an earlier voter ID requirement the product of “confusion by design.”
  • The General Assembly will redraw the state’s legislative districts. Because a lot of people have moved to North Carolina since the 2010 census, lawmakers will create a new congressional map with 14 rather than 13 congressional districts. The U.S. Supreme Court has left the states in charge of handling any lawsuits regarding redistricting, and N.C. has spent most of the past three decades in court over its districts.

Democrats poured millions of dollars into the chief justice race. By one measure, Newby was outspent 7-1. Yet, Woodhouse said, the Democrats’ money advantage was offset by the public’s perception that Democrats lacked concern about the riots and looting that rocked N.C. cities this summer.

The Democrat-dominated Supreme Court also repeatedly sided with Cooper when he sued the General Assembly over policy disputes.

Berger said voters noticed.

“The people of North Carolina said no activist judges, and yes to the rule of law,” the incoming justice told North State Journal. “I’m thankful that the voters of this state have put their trust in me to serve them.”

Republicans could pick up more seats in 2022. Justices Robin Hudson and Sam Ervin will have to run for re-election. In 2024, Hudson will reach the mandatory retirement age of 72. Woodhouse suggests she may choose not to seek a term that would last less than two years.

Conservative pickups in 2022 could, within a little more than two years, restore balance to a court that was leaning hard to the left.