A law approved Friday by state lawmakers, and quickly signed by Gov. Pat McCrory in the waning days of his administration, changes the election process for the state Supreme Court that provides a check on the other two branches of government.
After a special session that was called to address Hurricane Matthew disaster relief, the General Assembly extended its stay in Raleigh to take up numerous bills, including one that returns partisan primaries to elections to the state’s highest court.
The law was introduced five weeks after Democrats gained a 4-3 advantage on the N.C. Supreme Court in the November election. Ballots for that race between Mike Morgan, the Wake County Superior Court judge who won with a 54.45 percent majority over incumbent Justice Bob Edmunds, did not include party affiliation.
The provision, part of the new law known as Senate Bill 4, ensures that one judicial candidate from each party will be on general election ballots in the future. The law also makes it so information about the candidate’s party affiliation also will be on the ballot.
Republican. Rep. Bert Jones, a Republican from Rockingham County, rejected that assertion from some critics that the changes were made as a “knee-jerk reaction” to the unseating of Edmunds, a Republican.
“This is an act to restore the election process to the way it was for much of North Carolina’s history,” Jones told fellow House members. “What this does, ladies and gentlemen, is it simply allows the voters of North Carolina to simply make an informed choice.”
Rep. Becky Carney, a Democrat from Mecklenburg County, questioned Jones about why, if the changes had nothing to do with the November election, the elections changes had to be taken up in a special session outside the traditional legislative process.
“When you say this is not in response to an election, with something so complicated as this ... why could this not wait for the full session that we are about to go into in less than 45 days?” Carney asked.
Candidates seeking an appellate judicial post who are unaffiliated with either party will either have to choose a party to run with in the primary election or follow the petition process for candidates not registered as Democrats or Republicans seeking a place on the ballot. It adds a hurdle for those candidates to get on a ballot.
Bob Orr, a former justice on the state Supreme Court, pointed out that judicial elections used to be partisan as recently as 2002, when he won a seat on the state’s highest court. But before the 2004 elections, the Democrats in power at the General Assembly took party affiliation off the ballot, Orr said, “because they thought too many Republicans were winning.”
Orr, a Republican who now teaches law at UNC-Chapel Hill, said for many years in the past century, it not only was rare for Republicans to win statewide judicial posts, it also was unusual for them to seek election to them. But that started to change in the mid 1990s and following decade.
Senate Bill 4 also adds another layer to the appeals process for people and organizations making state constitutional challenges to state law. The law adds a step at the N.C. Court of Appeals, which has 11 Republican members and four Democrats, before a case goes to the state Supreme Court.
Before the change on Friday, state constitutional challenges went to a three-judge Superior Court panel and then straight to the state Supreme Court on appeal. Now the cases will go to the Court of Appeals, where a quorum of judges can decide to hear a case either “en banc,” with all 15 members present, or in the traditional three-judge panel process.
The process is similar to one followed in federal court. A party to a lawsuit can petition a U.S. appellate court, which typically hears cases in panels of three, to review the case with all members present. Though the federal court sometimes reviews a case with all members present, the typical procedure is the three-judge panel ruling.
Though the change in North Carolina has been criticized as setting up a more prolonged process that adds cost to a challenge, some attorneys say they would not expect the state appeals court, with its current workload, to want to add too many full-court reviews.
Each Court of Appeals judge writes more than 100 opinions a year, according to data recently released by the N.C. Advocates for Justice, a lobbying organization for trial lawyers.
“I just don’t think it will be used that often,” Orr said.