Retention Election Lawsuit: Constitution Means What It Says

NOTE: This piece was originally posted at the Civitas Institute.

Does our state’s constitution mean what it says? That’s the question asked by a recent lawsuit filed in Wake County Superior Court. At issue is the constitutionality of recent changes to how justices are elected to the North Carolina Supreme Court. The case will not only require our courts to interpret laws in the ordinary sense, but also to weigh how much respect they give the words and meaning of our state’s most fundamental document.

In North Carolina, judges to our state’s highest appellate courts are elected rather than appointed. Reasonable people can disagree on whether this is sound policy. In many states appellate judges are appointed by the governor, rather than elected by the People. Policy questions aside, the mandate of the North Carolina Constitution is clear:

“Justices of the Supreme Court…shall be elected by the qualified voters and shall hold office for terms of eight years and until their successors are elected and qualified. Justices of the Supreme Court…shall be elected by the qualified voters of the State.”

During the most recent legislative session, Republicans at the General Assembly enacted legislation purporting to “allow voters to elect, and then retain, justices of the North Carolina Supreme Court for election.” Specifically, the legislation states that:

“A justice of the Supreme Court who was elected to that office by vote of the voters who desires to continue in office shall be subject to approval by the qualified voters of the whole State in a retention election at the general election immediately proceeding the expiration of the elected term. Approval shall be by a majority of votes cast on the issue of the justice’s retention in accordance with this Article.”

Layman’s translation: Incumbent justices on the North Carolina Supreme Court who want to keep their seats no longer have to face challengers in elections – they merely have to get the approval of a majority of voters. If they get majority approval, they stay in office. If the voters fail to approve the retention of a justice, the office is deemed “vacant” at the end of the term, and the vacancy is filled by a regular election. And importantly, this change was made via legislative enactment, not constitutional amendment.

The changes do not sit well with Sabra Faires of Cary, North Carolina. Thanks to the changes, she cannot file for election to the Supreme Court, as there is no room for challengers. Attorney Michael Crowell of Tharrington Smith, LLP, is representing Ms. Faires in her challenge to the new law. Their main argument: the legislature purported to do by legislative decree something that can only be done via constitutional amendment.

The changes obviously make life more comfortable for incumbent justices. It’s much easier to win a retention election than to face a challenger. No surprise, then, that a Republican-controlled legislature made the retention election reforms at a time when conservatives occupy a majority of seats on our state’s highest court. But the fact that a law is politically expedient does not make it unconstitutional – rather, the problem lies in how the legislature went about making this change.

The meat of the lawsuit comes down to the Plaintiffs’ claims in Paragraph 22 of their complaint:

“A referendum on retention of an incumbent justice of the Supreme Court, as provided in S.L. 2015-66, is not an election for the office as required by Article IV, § 16 of the North Carolina Constitution. The constitution requires an election in which opposing candidates may run for the office.”

The plaintiffs have a point. A retention referendum is almost certainly not what the framers of our constitution had in mind when they decided to require elections for justices of the North Carolina Supreme Court. Faires and Crowell intend to show that such changes have always been made via constitutional amendment, both in North Carolina and elsewhere.

“For the last 50 years every one of the 33 bills introduced in the legislature to change the method of selecting judges…has been a constitutional amendment.” Crowell wrote in a firm press release. “Nineteen other states use a retention vote for their appellate judges, and in every one of those states it is authorized by the state constitution.”

The case will be heard by a three-judge panel, to be appointed by Chief Justice Mark Martin. Barring any extensions that may be granted, the state has until the end of December to file responsive pleadings or otherwise move to dismiss the case.

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