In recent years, the problem of selecting judges to sit on the highest state courts has become a national crisis. North Carolina remains among the states whose constitutions require competitive elections of all its judges. Presently, all candidates for its judicial offices must first compete for election in a non-partisan primary, a system motivated by the desire to maximize the power of the state’s citizen-voters to choose their judges and hold them accountable for their fidelity to the law. Some observers have continued to celebrate such judicial elections as an honorable democratic empowerment, while others have not. The disagreement has continued for almost two centuries, but has encountered new impediments over the last half century and especially in the last decade, largely as a result of decisions of the Supreme Court of the United States extending the meaning and application of the First Amendment to the Constitution of the United States far beyond the expectations of those who wrote or ratified it, or many who have since proclaimed its virtue and importance.
Part I focuses on the nineteenth century development of state judicial elections as a means to solve corruption and create judicial independence, specifically highlighting the developments in North Carolina. Part II discusses the progressive reforms of judicial elections that occurred in some, but not all, states during the twentieth century. Part III discusses the enduring problems of judicial elections and how those problems have been magnified by national politics and Supreme Court rulings during the past half-century. Part IV reviews North Carolina’s legislation, which attempts to ensure independence in a system of judicial elections. Lastly, Part V discusses the problems that are left unaddressed by the North Carolina legislation and proposes additional reform. The Article concludes that reasonable citizens of North Carolina have no choice but to recognize that the Court’s “activist” decisions have rendered unworkable the provisions of their state constitution governing the election of judges, even while demonstrating the case for a political system holding high court judges accountable for their political decisions.