NC Supreme Court hears arguments about retention elections

Justices of the N.C. Supreme Court were in an unusual position Wednesday when they asked the lawyers before them about a case that will have an impact on how sitting justices and others seeking a seat on the state’s highest court stand for election.

Six of the seven justices were there for arguments in a case about the legality of a 2015 law that changed the election process only for the Supreme Court

Not only did the case see Robert Edmunds, a justice whose term ends this year, recuse himself from the discussion and decision, it also brought together two organizations that are often at odds politically.

The ACLU of North Carolina and the Civitas Institute Center for Law and Freedom filed so-called “friend of the court” briefs in support of Sabra Faires, a Raleigh attorney who challenged the law and is now seeking a seat on the court, and two others.

At issue is whether legislators overstepped their authority when they adopted a law that would have allowed incumbent justices seeking re-election to run for reappointment on their records in a retention election, with no challengers.

Only if voters did not support keeping the justice in office would other candidates be permitted to file for the seat.

Faires and others challenging the law have argued that such a change can’t be made without a statewide referendum on whether to change the N.C. Constitution.

In the friend-of-the-court brief filed by the left-leaning ACLU and the right-leaning Civitas Institute, the organizations argued that moving from multi-candidate elections to up-or-down elections for a sitting justice required a state Constitution amendment.

Though the justices did not reveal Wednesday where they stood on a lower court ruling that overturned the law, several asked pointed questions that indicated two distinct schools of thought.

Michael Crowell, a Raleigh attorney representing Faires, argued that in drafting the state Constitution, the framers intended for judges in North Carolina to run for election, and elections in those days were between candidates, not one person running to retain a seat in office.

John Maddrey, North Carolina’s solicitor general, argued in his representation of the lawmakers that a sitting justice facing a ballot that gives an up or down vote to retention “is an election.”

Justice Barbara Jackson, whose term expires in 2018, and Justice Sam Ervin IV, whose term expires in 2022, asked Maddrey whether such an interpretation would make it possible to extend the process to elections for legislators, the governor, state treasurer, attorney general and other state elected officials. “Judicial elections are different,” Maddrey argued.

Justice Paul Newby, whose term expires in 2020, asked questions about previous rulings that might support retention elections. Using changes to the state Constitution in 1868 and in 1961 as the underpinnings for his questions, Newby asked whether the up-or-down votes in those questions were similar to what a retention election would be.

“Shouldn’t we take that as pretty significant evidence of their meaning of ‘election,’” Newby asked.

Crowell disagreed, saying such a concept was not developed until more than half a century later. Missouri was the first state to adopt the “assisted appointment method,” or retention elections, and that was in 1940.

Edmunds, the only justice whose term expires this year, is seeking re-election. He initially filed to run for retention, which would require a majority of voters to cast ballots in favor of him keeping his seat before he could serve another term. Only if he failed to win that ballot would another candidate be allowed to enter the race.

Crowell argued on Wednesday that such a process excludes qualified candidates from seeking a seat on the N.C. Supreme Court. He made similar arguments earlier this year to the three-judge panel that found the retention election law to be a violation of the N.C. Constitution.

The hearing in front of the justices Wednesday was an emergency session to consider the appeal by state lawmakers.

The justices did not say when they hoped to have a ruling. If the justices divide along party lines, a three-three ruling would keep the lower court ruling in place and the retention law deemed illegal.

Because this is an election year, the state Board of Elections set June 7 as a day for voters to winnow the candidate field to two to be on the general election ballot in November.

In addition to Edmunds and Faires, Wake County Superior Court judge Mike Morgan and Daniel G. Robertson, a Davie County resident who works as counsel and risk analysis officer for Bank of the Carolinas, are seeking the seat.

This story was originally published April 13, 2016 at 7:48 PM with the headline "NC Supreme Court hears arguments about retention elections."