Court tie means no retention elections for justices, for now

Court tie means no retention elections for justices, for now
May 12
10:00 2016



RALEIGH — North Carolina won’t use a new method of voting on state Supreme Court justices, for now, after justices split on the constitutionality of the option called retention elections.

In an opinion issued Friday, May 6, justices tied 3-3 over a challenge to a law that allowed retention elections.

That 2015 law lets an incumbent, elected justice seek re-election to another eight-year term without a challenger. A statewide up-or-down vote called a “retention election” would determine whether the justice remains on the bench. About 20 states use such elections for appellate court seats.

The tie vote means retention elections won’t be used in a state Supreme Court election this year, and the June 7 primary for a seat on the court will be held as planned. But it creates no precedent, meaning the issue could arise again.

The decision “is important for judicial independence,” attorney Michael Crowell, who represented the plaintiffs, said Friday in an email. “You cannot have the legislature deciding, as it did in 2015, which judges should have opposition and which not. I hope this decision leads us back to a serious discussion of reforming judicial selection in a way that complies with the constitution and that does not have partisan overtones.”

Only Justice Bob Edmunds faces re-election to the court in 2016. He didn’t participate in the decision or listen to arguments the court heard in April.

A lower court ruled in February that retention elections don’t meet the state Constitution’s definition of an election.

The three trial judges who heard the case also said retention elections impose a new qualification upon lawyers to run for the state’s highest court – that they must be the incumbent.

The arguments the court heard last month centered on whether a retention election meets the constitutional mandate that justices “shall be elected” even though only one candidate can run. Legislative sponsors of the law had said there was no need to amend the Constitution to offer the option.

John Maddrey, North Carolina’s solicitor general, argued the retention option is an election, pointing out many matters are submitted to voters that don’t involve a contest between candidates.

During the arguments, Crowell said one of the plaintiffs, Wake County lawyer Sabra Faires, was barred from running for Edmunds’ seat because Edmunds chose the retention option. “If she cannot run, one of two things has to be true: Either it’s not an election, or it’s an election and she’s been disqualified for some reason other than what’s in the Constitution,” he said.

Edmunds, Faires and Wake County Superior Court Judge Michael Morgan will now face off in a June 7 primary, with the top two-vote getters advancing to the general election in November.

Before 2015, legislators had debated judicial retention elections for more than 40 years as part of a broader judicial selection process that usually included a constitutional referendum.

Martha Waggoner can be reached at Her work can be found at 

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