ELECTIONS: On NC Supreme Court candidates Sam Ervin IV, Trey Allen

Featured photo: Incumbent associate justice Sam J. Ervin, IV (L) faces Trey Allen (R)

This story was originally published by NC Policy Watch on Oct. 13. Story by Kelan Lyons.

Two North Carolina Supreme Court seats are on the ballot this Election Day, offering Republicans the opportunity to flip the state’s highest court, which currently includes four Democrats and three members of the GOP. Policy Watch has contacted each of the four candidates and is publishing their responses.

Sam J. Ervin, IV is the incumbent associate justice running for reelection as a Democrat. He has been a member of the Supreme Court since 2015. He served on the North Carolina Court of Appeals before that, from 2009 to 2015. He was also a member of the North Carolina Utilities Commission from 1999 to 2009. Here is a link to Ervin’s website.

Ervin’s opponent is Republican Trey Allen, general counsel for the state’s Administrative Office of the Courts. His legal career began as a judge advocate in the U.S. Marine Corps. After an honorable discharge, he completed a clerkship with then-Justice Paul Newby, of the state Supreme Court. He then went into private practice before joining the faculty at UNC Chapel Hill in 2013. He was appointed general counsel for the AOC after Newby became chief justice in 2021.

Allen did not respond to repeated requests to participate in this interview. Here’s a link to his website, which describes his judicial philosophy as:

” … straightforward. He believes that judges must follow the Constitution as originally understood and the laws as written. When judges issue rulings based on their political views, they exceed their authority and abuse the public’s trust. Judges should treat everyone with dignity and respect and provide equal justice under the law in all cases.”

His campaign webpage also says that he thinks judges “must stay true to the Constitution;” decide cases based on the law and facts, not because of a political ideology; and make sure all North Carolinians receive equal justice under the law.

Here is a transcript of Policy Watch’s interview with Ervin.

Policy Watch: You are running as a Democrat; what does it mean to you for someone to be a Democratic judge on the Supreme Court? 

Justice Ervin: I don’t think, as I said many times, that judges ought to have political partisan ideological agendas, and so my campaign has been based on the notion that courts ought to be fair and impartial, that everybody ought to be given a fair hearing and that everyone ought to be treated equally under law.

If it was entirely up to me, which it’s not, we would never have abandoned the use of non-partisan elections, which was what we had during the first three times that I’ve run for judicial office. I wish these elections were still non-partisan. I think, for the reasons that I’ve said a number of times, that partisan elections send a signal to voters that judges are nothing other than partisan policymakers by another name. And I think that’s not reflective of what judges ought to be doing.

I am concerned about the effect of the use of that type of election on our public perception of judges. Given that preference. which is irrelevant given that we have partisan elections, I’m a Democrat, I am the Democratic nominee, and I’m happy to be the candidate of the Democratic Party. However, my campaign is not based on, ‘Vote for me because I’m the Democrat.’ My campaign is predicated on the theory that I’m the best qualified person for the seat that I currently occupy, and folks ought to vote for me for that reason.

PW: What are the stakes of this election, and by extension, of the possibility of the court flipping political parties?

Ervin: I just got through saying my campaign is not based on the partisan affiliation of members of the court or any other consideration of that fashion. My campaign is based solely on my own qualifications. And my belief that I’m the best qualified candidate in this race. What we need, ultimately, are judges at all levels, not just at the Supreme Court, but all other courts in North Carolina, to decide cases in the manner that I described.

You’re supposed to look into things: What are the facts of the case? Those are typically determined in the trial court? And what is the applicable law that governs what ought to happen in light of those facts? You ought to give everybody a fair hearing, and everybody ought to be treated equally under the law. That’s what I think what judges need to do, and the state needs to elect judges who will do that.

PW: What is the role of the state Supreme Court as it relates to dealing with laws passed by the legislature?

Ervin: This is one of the things that doesn’t get said enough, and so I will take this opportunity to say it: We really interact with laws passed by the legislature in two different ways. The vast majority of those interactions occur in cases in which we’re called upon to construe statutes passed by the General Assembly. In other words, the General Assembly passes a statute, a case arises that involves the issue of, ‘What does that statute mean?’ and therefore we have to construe what that statute means. And so our interaction with the General Assembly and that set of circumstances is to try to do the best we can using the rules that govern the interpretation of statutory, other legal provisions.

What did the General Assembly intend when it passed that law and how would that intent be reflected in the outcome of this case? That’s a significant part of our docket. It’s not one that gets lots of publicity, but that’s the principal interaction that we have with the General Assembly, is trying to understand and interpret and apply what the laws that they passed mean in a particular set of circumstances.

The other way, and this is the one that get more publicity, is occasionally we are called upon to determine whether statutes that the General Assembly has passed satisfy relevant constitutional requirements. And again, the inquiry is the same thing. We’ve got a written state constitution. We also decide cases periodically under the federal Constitution. And our task there is to examine what the General Assembly passed in the way of the statute and compare it to the requirements of the applicable federal or state constitutional provision.

We are not the ultimate arbiter of what the federal Constitution means. Our cases dealing with federal constitutional issues are subject to appeal to the United States Supreme Court. And if they think we got a federal constitutional issue wrong, they have the perfect right under our system to say so. We are the final arbiter of what the state constitution means unless it’d subsequently amended by the process that’s set out in the state constitution. And so our second interaction is to determine whether statutes passed by the General Assembly meet requirements with either the federal or state constitution, depending on the case that we’ve got before us.

PW: What is the Supreme Court’s role in ensuring North Carolina has free and fair elections?

Ervin: I’m at liberty to say that our job is, when a challenge is made to election law, we are required to look at what the relevant provisions in the state constitution say, and determine whether the statute meets those requirements.” [He declined to say more because of a case currently pending before the state Supreme Court involving the clause “free and fair elections.”]

PW: What is the Supreme Court’s role in allowing, expanding or limiting prospective voters’ access to the ballot box?

Ervin: We don’t go out and affirmatively seek occasions to make rulings. We just make decisions in cases that are brought before us through the normal process of litigation, which requires that somebody file a suit and allege a claim, and it is up to the court to determine whether that claim is valid or not.

If a claim is filed challenging the validity of an election law related to statute, it’s the job of the court to evaluate the validity of that claim by determining what the facts are, what does the statute say, and what does the relevant constitutional provision vis a vis that statute. And that’s our job in any election-related case. And frankly, any other kind of case.”

PW: Do you believe systemic racism permeates our state’s criminal justice system? If so, what would your role as a Supreme Court justice be in reducing or eliminating those systemic inequities and ensuring all North Carolinians equal treatment under the law?

SE: The job of the court is to make sure that the laws that exist are applied equally to everybody. Obviously, there are various provisions in the state constitution and the federal constitution that provide for equal protection. Claims of racial or other types of discrimination can be brought in light of those constitutional provisions. Again, I cannot comment much beyond that, because one of the cases that we have pending before us involves a challenge to a voter identification statute that the General Assembly passed that’s been challenged as violative of equal protection on racial discrimination grounds. And because that case is pending, I don’t think it’s appropriate for me to say any more than I’ve said before, which is that, in any case, it’s the job of a court to decide what the constitutional provisions or statutory provisions as applied to the facts are.

That said, you know, I am familiar with the statistics that you can see, with respect to various things like traffic stops and other things. Our society is one in which we have not achieved a state of perfection. And our society is always working to become more just and equitable than it has been in the past. Courts, to the extent that the laws deal with that sort of question, have a role to play in making sure that individual litigants are not subject to racial discrimination. We don’t have the authority to go out and pass statutes and other things of that nature. Instead, the role of the court is to decide the cases that come before that court, but anybody needs to be cognizant to fairly adjudicate claims that involve alleging any type of discrimination.

PW: A Democratic political consulting group found the court’s three Republican justices voted together 97% of the time in non-unanimous decisions in 2022, compared to Democrats doing that about half the time. Do you see that near-unanimity as a problem or a positive?

Ervin: “I’ve been asked this question before, and my general reaction is that I don’t comment on what anybody on the court does other than myself.”

PW: Anything else you’d like to add?

Ervin: We’re put into the strange position of having to be political candidates in the environment that exists now, in which obviously voters want to know things that are important to them. Whereas on the other hand, our job is to make sure as candidates that we don’t do anything that casts doubt on our ability to fairly and impartially decide the cases that come before us. And my personal belief is if judges start talking about issues of public policy, and a case then involves a particular policy issue upon which the judge has commented then comes before the court, one party or the other is not likely to believe that that judge can be fair and impartial.

The acceptance of the court’s decisions as legitimate depends, I think, in large part on public perception that we are in fact doing what we say we’re doing, which is deciding cases based on the law and the facts. And if we all get out there and start opining about questions of public policy, then I think we’re undermining the legitimacy of our own decisions. And so we’ve got to be really careful not to do that.

PW: But how do you respond to voters who would say that conservative justices have moved farther to the right, and that those voters want Democratic justices to be more leftist in their decisions and opinions?

Ervin: I don’t directly comment on what any other judicial official does except through opinions that I either write or join. Because I think if we if we start doing things like that, that has further adverse impact on public confidence in the court system. But at least in my view, it’s not the role of a judge to try to implement any particular political ideology. We are supposed to try as best we can, being as intellectually honest as we can, to try to figure out what the law is, and for the most part, laws are things that the judges themselves don’t write. So we’re not there for the purpose of trying to drive results in a particular direction.

What we’re there to do is to try to make sure that the laws that we have adopted through the process that society recognizes as legitimate, as embodied in the state and federal constitutions, are applied as they were intended. Admittedly, there’s certainly judgment calls that occur in making those determinations. But I don’t think it’s appropriate for judges to either say ‘I want to ensure that a particular ideological outcome is achieved in any case.’ That’s not what we’re supposed to do.

If you run for the legislature or you run for governor or you run for some other executive branch office, your job is basically to try to diagnose what ills you may see in society; to see if you can see something that the government can do to make the situation better, try to persuade the voters to elect you on the basis of a promise that you will try to implement that plan. And then if you’re fortunate enough to be elected, you then go into the legislative body or the executive branch office and try to do what you promised the voters that you do.

It’s not proper for judges to promise voters that they will achieve particular outcomes in particular cases, because that then does involve a substitution of the judges policy preferences for those that may be reflected in the law. It’s undoubtedly very frustrating for voters, and sometimes in the past, when I’ve not answered questions like that, I frequently get started out by saying, ‘Look, I understand it’s important to you. I understand the fact that I’m not going to answer that question may cause you not to vote for me. That’s okay. That’s up to you.’

It’s not even [that] judges should not say, ‘Oh I want to make the law head in any particular direction.’ Instead, what a judge ought to do is to try to figure out what the law is and apply it fairly in the cases that come before the court.

NC Policy Watch, a project of the North Carolina Justice Center, is a news and commentary outlet dedicated to informing the public — including elected officials as they debate important issues — and ultimately to improving the quality of life for all North Carolinians.