- Associated Press - Wednesday, April 13, 2016

RALEIGH, N.C. (AP) - The North Carolina Supreme Court quizzed lawyers Wednesday about the constitutionality of a new re-election option for members of the court in a case that will affect one justice this year and possibly the others in later elections.

Six of the seven justices listened to oral arguments over the 2015 law, which lets an incumbent, elected justice seek re-election to another eight-year term without a challenger. A statewide up-or-down vote called a “retention election” would determine whether the justice stays on the bench for another eight years. About 20 states use such for appellate court seats.

A lower court ruled in February that the procedure doesn’t meet the state Constitution’s definition of an election. The three trial judges who heard the case also said retention elections impose a new qualification upon lawyers to run for the state’s highest court - namely that they must be the incumbent.

Legislative sponsors of the law had said there was no need to amend the Constitution to offer the option.

The two sides and the court decided to accelerate appeals for a ruling in time for this fall’s election. Justice Bob Edmunds, the only justice up for re-election in 2016, planned for a retention race. He isn’t participating in the deliberations and left the courtroom before lawyers for three plaintiffs and the state presented their arguments.



“There is clearly a need for clarity and precision as to what is an election and what constitutes a qualification for office,” John Maddrey, North Carolina’s solicitor general, told the justices.

Wednesday’s arguments centered on whether a retention election meets the constitutional mandate that justices “shall be elected” even though only candidate can run. Maddrey argued the retention option is an election, pointing out many matters are submitted to voters that don’t involve a contest between candidates.

But Justices Barbara Jackson and Sam Ervin IV asked whether that would open the door to allowing retention elections for legislators, the governor and other members of the Council of State, since the Constitution says these officials also “shall be elected.”

Maddrey responded there may not be a persuasive policy argument for such elections, while lawmakers may decide judicial retention elections keep judges impartial and above the political fray.

“Judicial elections are different,” he added.

Citing state Constitution changes in 1868 and in the early 1960s, Justice Paul Newby asked Maddrey and plaintiffs’ attorney Michael Crowell whether the Constitution’s writers envisioned elections as something beyond head-to-head matchups. Newby pointed to a separate 1868 law directing an up-or-down statewide vote on the ratifying the Constitution as an “election.”

“Shouldn’t we take that as pretty significant evidence of their intent of the meaning of ‘election’?” Newby asked Crowell.

Crowell responded it should be considered but said the Constitution’s writers 150 years ago had a certain meaning for “election” when describing public offices.

“It couldn’t have meant a retention vote in 1868,” Crowell said.

Crowell said one of the plaintiffs, Wake County lawyer Sabra Faires, was barred from running for Edmunds’ seat because Edmunds choose the retention option. “If she cannot run, one of two things has to be true: Either it’s not an election, or it’s an election and she’s been disqualified for some reason other than what’s in the Constitution,” he said.

There’s no date when the six justices when rule.

With the law struck down for now, Edmunds, Faires and Wake County Superior Court Judge Michael Morgan have filed to run in a conventional election, beginning with a June 7 primary in which the top two-vote getters would advance to the November general election. Should the justices overturn the lower-court ruling, the retention vote would be back on.

Before 2015, legislators had debated judicial retention elections for more than 40 years as part of a broader judicial selection process that usually included a constitutional referendum.

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