Judges Hear Arguments in Retention Election Lawsuit

Note: This piece was originally published at the Civitas Institute.

“I don’t mean to sound harsh, but whether or not the voting public fully understands the election scheme that is in place doesn’t go to whether this Session Law is constitutional,” Deputy Attorney General Melissa Trippe argued to a three-judge panel early Tuesday afternoon. Trippe stood in defense of a state law amending the process for election of incumbent Supreme Court justices to one of “retention,” rather than a contested vote of the people.

Technically, Trippe was correct – the public’s ability to comprehend a statute does not, for the most part, affect its constitutionality. That’s good news for her client, the North Carolina State Board of Elections, and the legislature that passed the challenged law. Considering that a judicial panel and two experienced attorneys had to think long and hard about the workings and implications of the new election scheme, one could hardly expect the public to comprehend the nascent process for electing incumbent Supreme Court Justices.

But while the process itself may be complex, plaintiffs’ counsel Michael Crowell’s contention was quite simple:

“The retention election is not an election within the meaning of the Constitution.”

The case, Faires v. State Board of Elections, was before the three-judge panel in Wake County on Crowell’s motion for summary judgment, or judgment as a matter of law. Arguments were held in the Court of Appeals courtroom in downtown Raleigh. And while the presence of a trial court reporter indicated the superior court status of the case, the mood was one of appellate argument, as Judges Anna Mills Wagoner, Lisa Bell, and Ben Alford peppered both sides’ attorneys with questions about constitutional law and statutory interpretation.

Such superior court panels are rare, but apply in this case since the plaintiffs have challenged the constitutionality of a law purporting to “allow voters to elect, and then retain, justices of the North Carolina Supreme Court for election.” In other words, the challenged law changes how a sitting Supreme Court Justice is reelected from a contested election to a retention election without a challenger. And according to Crowell, that is not an “election” within the meaning of the state constitution.

“But then isn’t an unopposed election of any kind unconstitutional?” Judge Wagoner asked with a smile. “Distinguish that for me please.”

Crowell maintained that an unopposed election is different; while the constitution does not require an opposing candidate, a true “election” must at least allow for the possibility of opposition.

“Elected officials who don’t have opposition are still considered ‘elected,’” Trippe responded. “So the fact that it’s a retention election doesn’t mean that they’re not elected.”

Of course, no constitutional lawsuit would be complete without a challenge to the plaintiffs’ standing. Though in this case, that challenge was met with some hostility by the court.

“Standing means someone who is directly harmed by a statute,” Crowell reminded the court. “No one is more directly harmed than the candidate.” In this case, that candidate was his client, Sabra Faires.

“If the Plaintiffs don’t have standing, who does?” Judge Bell later asked the defense counsel.

“The longstanding history of judicial review is out the window if no one has standing,” Judge Alford added.

“I can’t tell you exactly who does [have standing], but it’s not the plaintiffs,” Trippe responded.

Judge Alford was referring to a concept called “judicial review,” whereby the judiciary examines the constitutionality of laws enacted by the legislature – a critical element in the separation of powers. But inherent in his statement was the understanding that American courts do not issue advisory opinions. So, if no one has standing to challenge a law, a court can never review its constitutionality.

Suffice it to say, few in the courtroom believed that the case would be dismissed for lack of standing.

The retention process’s failure to pass constitutional muster as an “election” was only one of Crowell’s two arguments against its constitutionality. The second had to do with the legislature’s ability to prescribe additional qualification for elected officials.

“Even if this is an election,” Crowell explained, “there is still a serious constitutional defect in that it sets an additional requirement for office. They have imposed an additional qualification, which is that you have to be an incumbent.”

Crowell was referring to the fact that additional qualifications for office can only be added or authorized by the state constitution, and the retention process essentially makes incumbency a qualification for the office of Supreme Court Justice.

“If being an incumbent is a qualification, then no non-incumbent could ever run,” Trippe responded. “And that’s nonsensical.”

“If this is an election, and Sabra Faires meets all of the qualifications, why can’t she run?” Crowell later retorted.

Perhaps Trippe’s strongest argument in defense of the state was simply her statement of the standard of review for facial constitutional challenges.

“They have a very high burden to meet,” Trippe said. “Any doubt is resolved in favor of the legislature.”

When a law is challenged as “facially unconstitutional,” the plaintiffs’ contention is that the law is completely unconstitutional in all situations. This is different than an as-applied constitutional challenge, where a plaintiff alleges that the government is implementing the law in an unconstitutional way. Trippe is correct that a plaintiff must prove a law’s unconstitutionality “beyond a reasonable doubt” in order to meet his or her burden.

“I’ve never understood quite what that means,” Crowell said of this “reasonable doubt” standard.

His confusion is somewhat understandable. “Reasonable doubt” normally refers to the evidentiary standard in criminal cases – not the legal standard in constitutional cases. The point is that if a judge has any doubt as to whether a statute is constitutional, he or she must uphold the law.

“The Constitution is not supposed to be subject to a changing legislature session to session,” Crowell urged. “What would your decision be if instead of a Supreme Court Justice, it was the Governor?”

Crowell’s logic holds up. The legislature could change the way the governor – or even a legislator – is elected to a “retention election” if the court were to uphold the retention process as constitutional.

“This is the Constitution,” Crowell argued in his closing statement. “And it is not supposed to be subject to change by the legislature.”

The court issued no ruling on the spot. If the law is found to be unconstitutional, that ruling will be subject to direct appeal to the state Supreme Court. No one yet knows whether or how the recusal process would play out, as the case directly implicates the Justices’ abilities to maintain their seats. Justice Robert Edmunds is the only member of the court with a seat up for election this November.

The panel will issue its ruling in the coming weeks.



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