Under the Dome

Challenge made to NC’s Supreme Court ‘retention’ election

A Cary resident who wants to run for state Supreme Court in 2016 but can’t because of a new law altering the election’s process has filed legal action calling the law unconstitutional.

“I am qualified to run for the Supreme Court and want to serve, but even more important is stopping the legislature from rewriting the constitution without the consent of the people,” lead plaintiff Sabra Faires, an attorney and past judicial candidate, said in a press release about the lawsuit, which was filed Monday in Wake County Superior Court. Faires is a former legislative adviser who worked for top General Assembly leaders in both parties.

The filing period for statewide races began on Tuesday.

The hangup for Faires is legislation the General Assembly passed this year allowing for a “retention election,” in which an incumbent Supreme Court justice may appear on the ballot unopposed.

Voters would decide whether to let that justice continue service. There is only one justice up for election in November 2016 – Bob Edmunds of Greensboro – and he has already filed documents for retention. If voters allow, he’ll have another eight-year term.

Faires contends that is not in agreement with the state Constitution, which calls for elections of justices, legislators, the governor and others. She calls the new process a “referendum,” rather than a proper election.

“If election of a Supreme Court justice means nothing more than a retention referendum, with no choice between candidates, then the General Assembly would be free to say that’s enough for all those other offices as well.”

Rep. Leo Daughtry, a Johnston County Republican, an attorney and a sponsor of the original House bill, said it’s untrue that Faires is barred from running.

“Whenever there’s an election, she can run,” Daughtry said. “She just will have to wait her turn.”

He alsodisputed the notion that a retention election runs afoul of the Constitution. He pointed to a case in Tennessee in which the court in 2014 said that retention elections satisfied that state’s requirement that judges be elected by voters.

“Retention elections are, of course, not identical to elections where voters may have a choice among alternative candidates, but they are nevertheless elections in which the voters are given a choice,” stated the decision.

Faires’ lawsuit lists Tennessee as one of 19 states that use a retention election for appellate judges.

“In every one of those states the authorization for a retention referendum is in the state constitution,” it says. Constitutional amendments in North Carolina require a vote of the people.

Co-plaintiffs with Faires include two Wake County voters – Bennett Cotten and Diane Lahti – each of whom wants to “exercise her constitutional right to vote for justice of the Supreme Court in 2016,” says the lawsuit.

The legislation, filed as House Bill 222 and signed by Gov. Pat McCrory in June, met with controversy as it moved through the General Assembly.

Democrats called it a bald attempt by Republicans to keep a fellow Republican – Edmunds – in office.

“To me, it appears cravenly political,” Sen. Josh Stein, a Wake County Democrat, said during Senate floor debate.

Others in opposition called it a substantial change in elections process that could confuse voters. But Republicans called it a simplification and a cost-saver.

Sen. Ralph Hise, a Mitchell County Republican, was among those who said the change could create greater public interest in the performance of Supreme Court justices.

Daughtry said he’s heard such demand and added that retention elections are a cleaner method, politically.

A section of Edmunds’ campaign website supportive of retention elections puts it this way: “Across the country, retention election systems have been enacted in many states as a means of insulating judicial officials from political pressures that can distract them from their duties.”

Faires – who is unaffiliated and ran for the Court of Appeals in 2014 – and the co-plaintiffs are directing their suit against the State Board of Elections, its members and Executive Director Kim Strach. The plaintiffs want the defendants directed to arrange a traditional election rather than a retention ballot.

“We will enforce current law unless the courts direct otherwise,” said Josh Lawson, general counsel to the state board.

He added that a voter guide is delivered to every residential address in the state and will educate voters about retention elections. If voters cast majority “no” votes for the retention election candidate, then a vacancy is created and filled the usual way – the governor will appoint someone to the seat, and voters in the following general election will have their say. The attorney general’s office is handling the case for the state. The plaintiffs are represented by Michael Crowell of the Tharrington Smith firm in Raleigh.

Benjamin Brown: 919-832-8358, @benbrownmedia