Supreme Court debates what 'election' means

Posted April 13, 2016

— 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.


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  • Reid Dalton Jun 1, 2016
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    One gets the impression that the plaintiff's attorney, Mr. Crowell, is not so much opposed to the idea of retention votes in the election of judges in principle, as he is insistent the N.C. Constitution must be amended to provide for this procedure.

  • Reid Dalton Jun 1, 2016
    user avatar

    A renewed attempt as made to institute retention election of judges by the Courts Commission in the 1960's and 70's. According to Crowell, "Like the Bell Commission and many others since, the Courts Commission banged its head against the wall of judicial selection a number of times without any success. At almost every session in its early years the commission proposed to the General Assembly a constitutional amendment for the Missouri Plan, i.e., the governor would appoint judges from names submitted by a bipartisan nominating commission, with the judge standing for a yes/no retention vote at the next election and after each term. Despite bipartisan sponsorship - and usually the backing of the governor - none of the bills could ever gain the 3/5 majority needed in both houses of the General Assembly to put the amendment on the ballot."

  • Reid Dalton Jun 1, 2016
    user avatar

    Michael Crowell is author of an article in the Summer 2016 edition of the Notrh Carolina State Bar Journal, recounting the history of the establishment of the statewide district court system in North Carolina. From its origins in the establishment of Bell Commission in 1955, he explains, one of the reforms proposed to modernize the state court system was to move to something called the Missouri Plan, under which, in case of a vacancy on the Supreme or Superior Court bench, "A judicial council would nominate three candidates for each vacancy, the governor would appoint one, and that person would serve until the next general election, at which time there would be a yes/no referendum on retaining the judge in office for an eight-year term" . That proposal was rejected by the General Assembly in 1959.

  • Catherine Edwards Apr 14, 2016
    user avatar

    Retention elections take away my choices. Most people will just vote for the one candidate anyway. They may not understand what it means to say No, so it's easier to say Yes. I want judge candidates to convince us each election cycle why they are the best for the job. Just as all elected officials do.