Retention elections for justices challenged in court

Posted November 30, 2015

— A lawsuit filed in Wake County on Monday claims a new state law allowing retention referendums for the North Carolina Supreme Court is unconstitutional.

The law, passed in June, allows sitting justices on the Supreme Court to file for retention, rather than re-election, at the expiration of their terms. Voters are to be asked whether they're for or against the reappointment of that justice.

If voters approve retention, the justice keeps his or her seat without having to face an opponent. If the voters reject retention, then the seat is deemed vacant, and the governor would appoint a replacement who would serve for about two years until the next legislative election, at which point the seat would be considered open.

The plaintiffs in the case are Sabra Faires, a longtime legislative attorney and staffer, and two voters from Wake County, Bennett Cotten and Diane Lahti.

According to the complaint, Faires wishes to challenge incumbent Justice Bob Edmunds, whose second term is due to expire at the end of 2016. But because of the change in the law, no challengers can file to run against him.

Faires' attorneys argue in the complaint that judicial elections are clearly required in the state constitution and that the change to retention referenda required a constitutional amendment, not simply a statute.

They also argue that a retention referendum is not an election because it has only one candidate, and further, that the change adds a new qualification – that is, incumbency – for candidacy for the Supreme Court.

Faires, according to the brief, is being unconstitutionally prevented from challenging Edmunds in November 2016, and Cotten and Lahti are being unconstitutionally prevented from voting in that election, as well as having been denied the right to vote on whether to amend the constitution to make the change in the first place.

Rep. Leo Daughtry, R-Johnston, was the bill's lead House sponsor. He was surprised to hear about the lawsuit Monday.

Daughtry said he believes the question of whether a retention referendum is an election was settled in California in 1986, when then-Chief Justice Rose Bird and two other justices on that state's supreme court were removed by losing their referenda votes.

"It’s settled that it is, and I think our courts will find it that way," Daughtry said.

As to whether the change required a constitutional amendment, Daughtry said only that he'd heard that argument before.

The longtime House Judiciary Committee chair said the intent of the change was to help scale back the political wrangling over judiciary races.

For decades in North Carolina, judicial races weren't very political, and many even went uncontested, he said. But as the Republican Party gained power and started to challenge those seats, Democrats responded in kind, turning judicial races into high-dollar, high-stakes partisan contests.

Daughtry said he's been trying for years to reverse that trend.

"I think it’s a mistake to have politics with judges, because what can you promise your constituents other than you’ll be a good judge and be impartial?" Daughtry asked. "This was the best I can do."

Under a recent change to state law, all challenges to the constitutionality of a state law must be heard by a three-judge panel. Those proceedings take place in Wake County.


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