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To Elect or Retention Elect, that is the question

The North Carolina Supreme Court is gearing up to rule how the term “elected” is defined within the state constitution, which will have implications on their own elections as justices

Photo by Matt Robinson (Raleigh Skyline).

North Carolina has a long established tradition of electing state Supreme Court Justices.  This tradition’s destiny now hangs in the balance, to be decided by the Justices of the Supreme Court of North Carolina.  Article IV § 16 provides that Justices of the Supreme Court, Judges of the Court of Appeals and Judges of the Superior Court shall be elected by the qualified voters.  Session Law 2015–66 attempts to redefine “elected” as applied in Article IV § 16 and in doing so, destroys the spirit of the elected judiciary. The General Assembly, in Session Law 2015–66, attempts to mimic the Missouri Plan for appointing Justices to the Supreme Court.  Since North Carolina does not appoint Justices, the bill fits into the language of the constitution like a square peg in a round hole.

The arguments focused on the history and application of the term “elected” within Article IV § 16

In the case at hand, Sabra Faires challenged the law in order to salvage the ability to run for the Supreme Court Justice position currently held by Justice Robert Edmunds.  A three judge panel decided in Faires v. State Board of Elections that the law was an unconstitutional extension of legislative power and the argument went before the North Carolina Supreme Court on April 13, 2016.  The arguments focused on the history and application of the term “elected” within Article IV § 16.

A retention election is where a justice runs against his own record. Similar to constitutional changes, voters have the ability to vote for or against a justice’s ability to stay on the court.  Retention elections occur in 19 other states around the country.  Where retention elections may be helpful to improving judicial integrity, the court had to limit its focus to the constitutionality of the retention election under Article IV § 16 of the North Carolina Constitution.  In order to determine what the word “election” means under the section, the Judiciary posed questions related to the use of the word in different areas of the constitution and also with the progression of Article IV § 16 from 1868 to the present.

The North Carolina Constitution contains over fifty references to the word “election,” ranging from Article I (stating that all elections will be free) to Article VI (stating that General Assembly elections for bills shall be viva voce.)  The constitution proves to be an enigma in this regard by failing to define “election.”

Election is generally defined as the act of choosing or selecting one or more from a greater number.  The constitution seems to offer two separate meanings for the word in regard to choice.  The main distinction that the constitution makes is that there are elections for candidates and elections for policies.  The two types differ in the manner to which they are conducted.  In order to pass a bill, the General Assembly must vote for or against a policy, similar to the retention election in question.  However, in order to fill a constitutional office, a candidate must be selected or a vacancy will arise.

Session Law 2015–66 does not fill the office if the retention election was against the seated Justice.  Section 16 provides that the office term shall last until their successors are elected and qualified.  With a retention election, the election leaves a vacancy which would not allow any successor to be elected at all.  Instead the position would be filled by appointment.

The Justice in a retention election runs against his own record, just like in an impeachment. 

Professor John V. Orth, in his amicus brief, focused on the idea that the Session Law not only redefines “election” but “vacancy” as well.  He points out that “[t]he office… may become vacant by resignation, death or removal from office, but it does not become vacant by failure of a successor to be elected and qualified.”  The court may find that if the individual fails the retention election, this would qualify as a removal from office under vacancy; however, in the constitution, removal from office in Article IV § 17, shall be by impeachment.

In practice, the retention election is no more than a form of unjustified impeachment.  The Justice in a retention election runs against his own record, just like in an impeachment.  Also, when the retention election fails, the candidate is immediately removed from office just like an impeachment.  The office must now be filled by the vacancy provision found in Article IV § 19.  Section 19 provides that the position would then be filled at the next General Assembly election, which occurs 60 days after the vacancy.  In essence, Session Law 2015–66 destroys the spirit of the “people’s choice” since the governor would appoint the candidate to serve until the next election of the General Assembly.

In North Carolina, an impeachment is conducted by the House of Representatives.  After hearing evidence, the House votes for or against impeaching the candidate.  When a candidate is impeached, the office is deemed vacant and the governor must appoint to fill the position.  Similarly, the appointment would last until the next General Assembly election. The difference between impeachment and the retention election is only who is voting the justice out of office.

The historical precedent of North Carolina has never allowed for the appointment power to replace the voice of the people.

If the definition of “election” is the act of choosing, then the retention election is the people choosing between keeping a candidate or yielding their voice to the appointment power of the governor.  In the end, there would be no “choice” until the next General Assembly election under Session Law 2015–66.  The historical precedent of North Carolina has never allowed for the appointment power to replace the voice of the people.  Specifically, retention elections for Justices have never been allowed in the state until now.

In Article IV § 26 of the 1868 constitution, Justices were “elected by the qualified voters of the state, as is provided for the election of members of the General Assembly.”  This language was later changed in 1961 removing the “as is provided for the election of members of the General Assembly” and replacing it with “and hold office for terms of eight years and until their successors are elected and qualified.

Before the change however, the Supreme Court in Meador v. Thomas held that it is of negligible importance whether the choice be called an appointment or an election. Meador the court grappled with the language located in Article IV § 30 of the N.C. Constitution during the 1930’s.  The language pertained to the election of inferior court judges and provided that the General Assembly may prescribe the manner in which they were elected.  The General Assembly provided that the judges would be selected by the county board of commissioners.  Since the board of commissioners had the power to elect the judges, the court stated that it did not matter if the commissioners referred to the grant of judicial position as an appointment or election.  The difference between Meador and the current situation is that there is no grant of power in Article IV § 16 of the current constitution that gives the legislature the ability to prescribe the manner of the election.

Session Law 2015–66 does not work for North Carolina because the policies are copied from states who follow the Missouri Plan to appoint their justices. 

Even though the N.C. Constitution is a constitution of limitation, many sections were written as if the constitution was one of grant.  For example, in Article II § 8 states that the places and day of elections may be prescribed by law.  Also look to Article II § 10, which states that vacancies shall be filled in the manner prescribed by law.  This language would be completely unnecessary if the constitution was a strict constitution of limitation.  Throughout the entire constitution “prescribed by law” appears 28 times.  This begs the question to whether the constitution limits the ability of the General Assembly to add policies outside of the sections that contain the prescribed by law language.  In other words, a limitation on legislative power is present in statutes that clearly delineate policies for the state.  Since the constitution is one of limitation, Session Law 2015–66 cannot be constitutional because it goes beyond the bounds of Article IV § 16.

An election that creates a short-term vacancy seems like the legislature attempting to put a square peg in a round hole.  Session Law 2015–66 is the square peg.  For years the General Assembly has failed to gather enough support for the Missouri Plan, which would provide for the appointment of justices from a selected number chosen by a judicial nominating commission. Session Law 2015–66 does not work for North Carolina because the policies are copied from states who follow the Missouri Plan to appoint their justices.  If that was in North Carolina, the Session Law would work perfectly.  Since N.C. elects their justices, application of Session Law 2015–66 creates a jumbled mess of administrative actions every time a candidate fails the retention election.

Over the years, with at least two months lost between each appointed justice and judicial election the election schedule would be more unpredictable than springtime weather in North Carolina.  There is nothing wrong with the idea of retention elections, but there is a lot wrong with Session Law 2015–66 and how it has been applied.  The Supreme Court has heard the oral arguments and their opinion should come out in the next few months.  Stay tuned.

Cyrus Corbett V, Associate Editor Emeritus
About Cyrus Corbett V, Associate Editor Emeritus (16 Articles)
Cyrus Corbett V is a 2017 graduate of Campbell Law School and served as an Associate Editor for the Campbell Law Observer during the 2016-2017 academic year. He is from Murrells Inlet, South Carolina and received his Bachelors in Arts in Government from Wofford College in 2014. Since July after his first year of law school, Cyrus has interned at the North Carolina Retail Merchants Association in downtown Raleigh focusing on the Retail Merchants Handbook. His interest is in jurisprudence of the law and negotiation/ mediation.
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