How they voted is a supreme secret

Posted July 26, 2016

NC Supreme Court

— It seemed like a simple question: How did they vote?

Back in May, the North Carolina Supreme Court issued a 3-3 split opinion in a case that dealt with state Supreme Court elections. Specifically, Raleigh lawyer Sabra Faires challenged a 2015 law that allowed members of the court to run in retention elections.

Retention elections let voters decided to keep or toss a sitting justice but don't pit an incumbent versus a challenger. In practice, that would have let Justice Bob Edmunds, a Republican who is up for re-election, run for retention rather than face challengers such as Faires.

Edmunds couldn't participate in the decision, and the remaining members of the Supreme Court were split. That left a lower court ruling tossing out the retention elections in place. The practical impact of that decision was stark: Instead of running just on his record without an opponent, Edmunds had to clear a spring primary and now faces a fall general election challenge from Superior Court Judge Michael Morgan, a Democrat.

But how did Edmund's colleagues' votes break down?

Members of city councils and boards of county commissioners have to raise their hands and report how they vote on local budgets, ordinances and such. The North Carolina state House or state Senate can be brought to a standstill when one of the electronic systems that record their votes has a glitch.

In short, for most public bodies, reporting how one votes is expected, a way to hold elected leaders accountable.

Generally, when the Supreme Court lays down a formal ruling striking down or upholding a law or a lower court ruling – creating a precedent that must be followed by others – the author is listed along with those who agree and those who dissent.

Per curiam

But the two-page order in Faires' case is "per curiam," roughly translated as "for the court."

"Per curiam opinions are opinions of the whole court, and they generally are more ministerial, more administrative," said Jim Drennan, a professor at the University of North Carolina School of Government, a former director of the North Carolina Administrative Office of the Courts who now administers educational programs for clerks of Superior Court and court administrators.

It's not unusual for per curiam opinions granting or denying any number of smaller motions to be unsigned, he said.

How the court arrived at that opinion, he said, is a matter of "internal deliberations" and therefore not typically a public record. So, for example, drafts of a decision handed back and forth will rarely see the light of day.

"When the court chooses to issue a per curiam opinion, it speaks as one body or, in this case, one body with two opinions," he said.

Still, this wasn't a run-of-the-mill decision. This opinion helped change how an election would take place this year.

While the court is often viewed through a partisan lens – the party registration of each justice is known, and each gets the backing of a political party during an election – might the 3-3 split have surprised us? Did a Democrat joined two Republican colleagues in upholding the law while the remaining three created bipartisan resistance?

We'll apparently never know.

WRAL News submitted a records request to ask for any record where the votes might have been written down. After getting a rather cryptic reply from the court, a lawyer for the station asked for clarification and got a similarly cryptic reply. A few more letters were exchanged. Finally came a direct reply to the request for "any record" that might tell us how each justice voted.

"There are no records responsive to this request," came the reply.

In essence, the court says they didn't write it down.

Former Supreme Court Justice Bob Orr, a Republican, tried to school this reporter in the finer points of Supreme Court jurisprudence. But after getting frustrated with his rather dense pupil, Orr said, "My solution for you would be to call them up and ask them."

Nothing, he suggested, would prevent a Supreme Court justice from simply telling someone how they voted.

With Edmunds an abstention, WRAL News called the remaining six. Most either didn't bother to return the call or declined outright to even entertain a question.

"That information is not public and never has been," Justice Robin Hudson said. "That's always has been the way the court has operated."


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