Raleigh, N.C. — What is an election?
That seemingly simple question has turned into a thicket of historical interpretations for six of North Carolina's seven state Supreme Court justices, who must decide whether a colleague can keep his seat through a retention election, in which he would face no opposition.
"This is the most significant change in the way judges would be chosen since the constitution of 1868 was adopted," said Michael Crowell, a lawyer who has argued redistricting and other election law cases for decades.
Crowell said such a change would need to be made by a constitutional amendment put to voters, not through a law passed by the General Assembly, as was done in this case.
Retention elections have been used in other states to try to remove politics from judicial races by keeping sitting judges from having to raise money or appeal to political constituencies that might demand promises they rule one way or the other on cases.
Crowell argued on behalf of Sabra Faires, a long-time legislative lawyer who now is in private practice. The new law, he said, unconstitutionally blocked Faires from running for an office for which she was otherwise qualified.
A three-judge Superior Court panel agreed with that argument, ruling that lawmakers could not create what amounts to a new qualification to be a Supreme Court justice.
If the change were to stand, it would allow Justice Bob Edmunds to appear on this year's ballot by himself. Voters would be asked whether to keep him in his seat or remove him.
Edmunds appeared only briefly in court Wednesday morning, staying long enough to hear the case called before walking out the room. He has recused himself and will not participate in the decision.
Should the remaining justices of the Supreme Court side with the lower court, voters are scheduled vote in a June 7 primary for the office, when Edmunds would face Faires and two other candidates to narrow the field to two for the November election.
Lawyers for the state argued that the court should call off that primary and return the contest to a retention vote.
"There is a strong argument that judicial elections are different from other elections," said North Carolina Solicitor General John Maddrey as he defended the law before a panel that was often skeptical.
"Would holding a retention election for the Supreme Court then open the door to retention elections for offices?" asked Justice Barbara Jackson, such as up-or-down votes for state lawmakers.
Maddrey argued that the case in hand deals only with the Supreme Court election, but he insisted there is no constitutional language that restricts lawmakers from specifying how elections can be conducted. Besides, he said, lawmakers already place hurdles on candidates, like filing fees and residency restrictions, that are not found in the constitution.
"So, are you saying the question here for us is whether this is good policy or not?" asked Justice Robin Hudson.
No, said Maddrey. Rather, he said, he wasn't "aware of any textual, constitutional provision that says (creating) a retention election is outside the scope of legislative power."
When it was Crowell's turn to argue, he pointed to other uses of the word "election" throughout the constitution where it means a contest between two people.
"If she (Faires) cannot run, either it's not an election, or she has been disqualified," he said.
For much of his time, Crowell found himself less at odds with Maddrey than Justice Paul Newby, who aggressively examined Crowell on changes in wording between the constitutions voters approved in 1868 and in 1971. Specifically, Newby quizzed Crowell why voters removed words likening judicial elections to General Assembly elections when they redrafted the constitution in 1971.
"That was an editorial change. That wasn't mean to be a substantive change," Crowell said, pointing to note from drafters at the time.
There is no timeline for the court to offer a ruling, but mail-in absentee voting for the June primary begins later this month. Also, lawmakers return to Raleigh on April 25 and could make changes to the election law in response to this case.