Republicans in the North Carolina legislature have come up with another creative way to try to rig the judicial system in their favor under the guise of reform. Gov. Pat McCrory just signed a bill to change the way state Supreme Court justices are elected by allowing incumbents to opt for a retention election rather than a contested race.
With only one member of the court up for re-election next year – conservative Justice Robert Edmunds – the new bill will essentially ensure that a majority of the North Carolina Supreme Court remains conservative until at least 2018.
Almost all of the other states with retention elections – in which voters simply choose yes or no on whether a judge stays on the bench – use them only after justices are chosen through a merit selection process in which a panel chooses potential judges and sends a list to the governor for selection. But under the North Carolina law, candidates will run in contested, nonpartisan elections for open seats. Once on the bench, incumbents will simply have to be retained by voters.
Conservative legislators argue that the bill will to keep money and partisanship out of Supreme Court elections. But in practice, the bill will secure a conservative majority on the court for the next several years, longer if the GOP governor is re-elected next year. Even if Edmunds is not retained in an election, Republican Gov. Pat McCrory will appoint Edmunds’ successor. This is the case even if McCrory isn’t re-elected in 2016, because the state constitution would allow him to appoint a justice in his final days in office.
The law – passed largely along party lines – comes as North Carolina courts are hearing lawsuits challenging the GOP legislature’s agenda, including new laws concerning education, toxic coal ash pollution and voting rights.
The law may not even reduce the amount of campaign cash. While retention elections have historically drawn less money, recent big-money retention races in Tennessee, Florida and other states show that this may be changing. Moreover, only three states have a system in which contested races are followed by retention races: New Mexico, Pennsylvania and Illinois. Pennsylvania and Illinois have also seen an influx of money into their Supreme Court justice elections. Last year’s Illinois Supreme Court retention election drew nearly $3 million in spending.
This method of choosing judges has clearly not kept money and politics out of the courtroom. Two Pennsylvania justices have resigned in recent years after ethics scandals. And while New Mexico, Pennsylvania and Illinois are also among the handful of states that choose judges in partisan elections – which correlates with more campaign cash – the potential effect of retention races on the amount of campaign cash in judicial races should not be ignored.
Conservative legislators’ claims that retention elections will help curb big-money and special-interest influence should not be taken at face value. In fact, the North Carolina legislature’s track record on judicial elections shows little interest in keeping money and politics out of North Carolina courts. In 2013, the legislature repealed the state’s successful and innovative public financing program, which offered public funds to appellate court candidates who qualified by raising small donations. North Carolina legislators also recently considered a bill to return to partisan judicial races, and the legislature passed a bill in 2012 that weakened the Supreme Court’s ethics enforcement process.
This new law will all but guarantee that a 4-3 conservative majority remains on the state Supreme Court through the next election. With legal challenges to the legislature’s conservative agenda pending in state courts, this law will ensure that conservative legislators keep the justices they want on the bench for the next few years.
Melissa Price Kromm is director of North Carolina Voters for Clean Elections.