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High-stakes Supreme Court primary sees little attention

Trey Allen (right) with North Carolina Supreme Court Chief Justice Paul Newby. Newby has not endorsed Allen but has indicated unwavering support. Donated photo Trey Allen (right) with North Carolina Supreme Court Chief Justice Paul Newby. Newby has not endorsed Allen but has indicated unwavering support. Donated photo

A recent poll commissioned by the N.C. Values Coalition found that most prospective Republican primary voters know who they’ll likely cast a ballot for in the U.S. Senate race, with most in favor of either Ted Budd (32%) or Pat McCrory (29%) and only 25% saying they’re undecided. 

Of that same group, 82% didn’t know who they were going to vote for in the Republican Supreme Court primary. 

But the lack of awareness surrounding the race doesn’t reflect its importance. The balance of the court is currently 4-3 in favor of Democrats, and both seats up for election in 2022 are held by Democrats, meaning Republicans only need to win one of the two seats to gain the advantage. 

While the race for Seat 3 between Democrat Lucy N. Inman and Republican Richard Dietz may be tight, there will be no primary. However, for seat 5, there’s a Republican primary to see who takes on incumbent Sam Ervin IV in November. Running in that race are Trey Allen and April Wood, who polled 8 and 6 percent, respectively. 

There is a third Republican candidate, Victoria Prince. However, she has no website or social media presence and didn’t respond to email requests and phone calls from The Smoky Mountain News seeking an interview. 

A majority hanging in the balance

Wood and Allen spoke with SMN about their campaigns, as well as why the race is so crucial.

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“The court majority is at stake with this election, so I think it’s the most important Supreme Court election of the last 20 years,” Allen said. 

“I’m running for the North Carolina Supreme Court because I believe we need to have a constitutional conservative majority, and we have an opportunity to do that,” Wood said.

They both also talked about the court itself and its ability to set precedent that applies to all future cases across the state.

“The state Supreme Court is the last resort,” Wood said. “It’s the highest court in our state and has final say as to what the law is and what the North Carolina Constitution says. The decisions it makes are binding in all lower courts.”

“The Supreme Court makes decisions that affect many aspects of our daily lives,” Allen said. “It issues decisions that deal with individual rights with the scope of local government authority and state government authority over matters such as land use, criminal law and taxes.” 

Chris Cooper, who heads up Western Carolina University’s political science program, said people don’t typically pay as much attention to state Supreme Court races simply because they aren’t as high-profile. 

“There’s less money and less advertising,” he said. “And it’s a profession that, by design, tries to avoid attention. It’s an uneasy mix of the judiciary and politics.”

Both of those are true. Many in the judiciary dispute whether judicial races should even be partisan in the first place. And while many candidates running for the NC-11 congressional seat have raised well over a million dollars, as of the end of 2021 Allen and Wood raised $167,457 and $96,798, respectively, and Ervin IV raised $196,888.

Cooper added that no primaries typically offer the level of information and attention as general elections.

“Little things like who’s higher on the ballot order matter much more than they would if it was something like a U.S. Senate election,” he said.  

Establishing precedent

Bob Orr spent much of his career practicing law in Western North Carolina before serving as an appellate judge and eventually an associate Supreme Court justice from 1995-2004. Orr spoke generally of the court’s importance and its role as final arbiter of cases that come in front of it. 

Specifically, he discussed a few cases that have had lasting impacts on every North Carolinian. First, he talked about one that came to the court after he’d already retired — 2016’s Kirby v. NCDOT — which called into question a law passed by the General Assembly that allowed the NCDOT to use land without technically owning or condemning it, thus restricting abilities of property owners to have say what happens on their own property. 

“There was a group of property owners in Forsyth County area who brought suits saying … ‘we’re entitled to just compensation,’” Orr said. “It ended up at Supreme Court, and the court unanimously held that it was, in fact, tantamount to taking [the property], and owners were entitled to just compensation.”

He cited another case heard when he was on the court, Maready v. The City of Winston-Salem from 1996, a case that led to Orr’s dissent from the majority opinion. Basically, it challenged whether state and local governments should be able to provide economic incentives to lure companies to certain areas. Most recently, the consequences of that were seen in the state’s successful bid to bring in the startup Vietnamese car manufacturer, Vin Fast, which will build a multibillion-dollar manufacturing facility in the triangle. 

This is also seen on a much smaller scale across Western North Carolina as towns and counties offer money for things such as façade improvement for businesses that invest in a property. 

“From my perspective, the constitutional question was, what about the existing businesses who have to pay $25,000 for façade improvement out of their own pocket? How is that fair?” Orr posited. 

Raising the stakes even more, the next court will likely hear a case involving election maps. The current court ruled that Republican Chief Justice Paul Newby would appoint special masters (two Republicans and one Democrat) to draw General Assembly and congressional maps, something that now may be heard by the United States Supreme Court. Crucially, it also determined that the maps would need to be redrawn prior to the 2024 election. 

Considering how the past few maps have been received by Democrats in the minority in the General Assembly and voting rights groups, it’s likely that if they’re drawn by the Republican majority, they’ll be appealed all the way to the state Supreme Court. 

“When the Democrats inevitably sue, the Republicans feel like they’ll have a much a higher likelihood of victory in the Supreme Court if they flip one of those seats,” Cooper said.  

 

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Judge April Wood, who currently sits on the North Carolina Court of Appeals, pictured with her family. Donated photo

 

The candidates

Orr said it’s important to look at a judicial candidate’s background and qualifications above everything else, especially party affiliation. He believes Allen and Wood both have “extensive credentials” but stopped short of endorsing either, despite his admission that such endorsements are most impactful in races that are relatively low-information and low-dollar.

While it’s not allowed for a sitting Supreme Court justice who isn’t running for election to endorse a judge, Newby, for whom Allen clerked early in his career, made it clear who he supports. 

“I have known Trey Allen for almost 20 years. Trey is a man of integrity and honor,” Newby said in a March 31 tweet. “He is a brillant [sic] constitutional conservative. His broad legal experience and recognized constitutional scholarship qualify him to serve on the Supreme Court. I would be honored to serve with him.”

Allen and Wood, who are similar in age and seemingly alike in values, have vastly different experiences. Wood has served as a judge since 2002, first in District Court and then on the Court of Appeals for the last year and a half. Allen, who cut his teeth as a Marine Corps Judge Advocate General and deployed to Iraq, is currently the general counsel for the North Carolina Administrative Office of the Court (AOC), which is charged with running the judicial system statewide. 

Wood promoted her education, especially the law degree she received from Regent University, a well-known private Christian university in Virginia.

“Regent is the premier conservative law school in the country,” she said. 

While Allen has received the support of Newby, Wood has racked up some high-profile endorsements of her own, including that of former Chief Justice Mark Martin. But more than anything, Wood wanted to highlight her experience on the bench as both a trial court and appellate judge. 

“Of the seven justices on the court now, only one was a trial court judge [Democrat Michael Morgan] … My experience as a trial court judge has been invaluable in my role as an appellate judge because I can understand what happened in the trial court. I can impart that knowledge and understanding to my colleagues, and it has been very helpful.”

Wood added that her career, especially since joining the court of appeals, has required her to conduct in-depth reviews of a variety of cases, reading transcript after transcript while thinking critically to apply the law.

“I’m looking at one right now that’s about 6,000 pages,” she said during her phone interview with SMN. 

“We have to make sure that the parties make the right objection and that they preserve an issue for appellate review and ensure that when they bring up issues, whether or not the jury was improperly influenced,” she added.

Before getting appointed to his role with AOC by its director, which Allen said came on a recommendation from Newby, he was an associate professor of public law and government at University of North Carolina’s School of Government, a role that allowed him to also give legal guidance to elected officials and other policy makers. 

However, when talking about his experience, he went back near the beginning of his career to talk about clerking under Newby.

“I got an insider’s view of how the Supreme Court functions,” he said, adding that he also worked at a Raleigh firm for several years which led him to argue cases in state Superior Court, federal court, and appellate court. “I do have familiarity with Supreme Court because I’ve worked there before. And in my work as a legal scholar, I’ve dealt with Supreme Court precedents in great detail. I think given the range of my experience, the Supreme Court is where I can serve most effectively and have the most to contribute.”

Allen also talked about his position within AOC, where he runs an office of 11 lawyers who give guidance to judges, clerks of court and magistrates across the state. He spoke about his role during the pandemic — a pandemic that brought about plenty of uncertainty for the state’s entire judicial system. 

“Many courts moved to conducting some proceedings remotely through video and audio devices, so we’ve had to provide guidance to judges as to what kind of court proceedings may or not be conducted remotely,” he said. “We deal with constitutional issues, both state and federal, and a huge array of statutory issues that involve civil law matters and criminal law matters.”

Despite his closeness with Newby, when asked specifically, Allen wanted to assure people he wouldn’t be afraid to diverge from the chief justice on issues if he thinks that is the right course of action. 

Another angle Allen highlighted when discussing why Republicans should vote for him was purely political. He pointed out that if Wood wins, she must vacate her seat on the Court of Appeals, meaning Democratic Gov. Roy Cooper would be able to appoint someone of his choosing to the bench. 

“Because I work for [Newby] at AOC, he would get to pick my replacement if I get elected,” Allen said. 

When it comes to judicial philosophy, the two are similar. Allen described an originalist interpretation of the law similar to the late Antonin Scalia. 

“I think people have lost faith in our courts because they believe that too often judges substitute their own preferences for what the law is,” he added. “I would try to restore faith in the court by not doing that by simply applying the law.”

For her part, Wood said something similar.

“I firmly believe that judges are supposed to interpret and apply the Constitution and laws as they’re written, and judges are not supposed to be legislators and impose their will on the people and rewrite the laws,” she said. 

The primary election is May 17, and the General Election will be Nov. 8. Early voting begins April 28. 

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