Our Hobson’s choice on retention elections in NC

Four hundred years ago, Thomas Hobson ran a large livery stable in Cambridge, England. In order to ensure the equal use of each of his horses, he gave his customers their choice of mounts, so long as it was the horse then in the stall nearest the door. “Hobson’s choice” became proverbial for a choice with only one option: Take it or leave it.

Thanks to HB 222 enacted this month and effective immediately, a sitting justice of the N.C. Supreme Court whose term is expiring and who “desires to continue in office” for another eight years will be presented to the voters on a take-it-or-leave-it basis. Unlike the choice that Hobson offered – the nearest horse or none at all – North Carolina voters will choose between a named justice and an interim justice TBA, to be appointed by the governor.

Others have commented on the political motives that might have led to the sudden switch to retention elections for Supreme Court justices. Any change in a selection process always raises suspicions of an intention to secure a result by changing the process. But that is not what bothers me most about the Hobson’s choice I will be offered in November 2016.

Nor am I interested in whether judicial retention elections are, in general, a good thing. If the voters were offered a constitutional amendment to change the manner of extending a justice’s term beyond the current eight years, that would be the time for such a discussion.

What bothers me about HB 222, now part of the N.C. General Statutes, is that the General Assembly has changed the meaning of the word “election,” which in one form or another (election, elections, elected, elective) appears over 80 times in the state Constitution, as applied to only one office. Actually, it has changed the meaning of the word in only one section of the Constitution: “Justices of the Supreme Court, Judges of the Court of Appeals, and regular Judges of the Superior 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” (Art. IV, § 16). Under the new law, a justice who was once elected and who “desires to continue in office” faces only a retention election: the justice or whoever the governor chooses. The same does not hold true for Court of Appeals judges or Superior Court judges. If they desire to continue in office, they do it the old-fashioned way and face the possibility of a contested election.

Elected officials from the governor and lieutenant governor down to the district attorneys and county sheriffs will continue to be elected and – if the voters see fit – re-elected in the same manner that has been used since North Carolina’s first state elections in 1776. I’m sure those officers, too, would find it more convenient to stand for re-election without the possibility of opposition. I’m sure incumbent members of the General Assembly would also find it most convenient.

If HB 222 is constitutional, then all that stands in the way of offering all elected officers in North Carolina the chance to seek re-election in a Hobson’s choice election is the Supreme Court of North Carolina. The constitutional requirement of election by the qualified voters would not prevent it. The words of the Constitution would mean only what the General Assembly says they mean – and may mean different things in different parts of the Constitution – subject only to review by the Supreme Court. In the case of HB 222, it will be up to the justices to decide whether the General Assembly’s new definition of “elected” applies to them and only to them.

This story was originally published June 24, 2015 at 6:31 PM with the headline "Our Hobson’s choice on retention elections in NC."