- Associated Press - Thursday, February 18, 2016

RALEIGH, N.C. (AP) - A three-judge panel has decided a new option for choosing members of the North Carolina Supreme Court is unconstitutional.

Lawyers were alerted Thursday to the judges’ ruling striking down the 2015 law creating “retention elections.” The Superior Court judges - Anna Mills Wagoner, Lisa Bell and Benjamin Alford - heard oral arguments earlier this week in a lawsuit challenging the concept.

The law gives most sitting justices the option to be re-elected to additional eight-year terms without head-to-head matchups with challengers. Instead, the justice can choose to be elected in an up-or-down vote. It’s supposed to be used by Associate Justice Bob Edmunds for the first time this November.

Wake County court administrator Lisa Tucker wrote to the lawyers in the case, quoting the panel’s decision, which bars state election officials from conducting a retention vote. The email was provided by the state Attorney General’s Office, whose lawyers are defending the law.

The ruling, which won’t be official until an order is written and signed, could be appealed to the state Supreme Court.

A candidate filing period for Edmunds’ seat may have to be opened later this year should the retention election ultimately be found unlawful.

Former state Court of Appeals candidate Sabra Faires and two voters challenged the idea last fall, arguing the concept is flawed because it’s actually a referendum and runs counter to the state Constitution’s mandate that justices must be elected. They also said it adds an unlawful requirement to running for the courts - that one must be an incumbent.

“We argued and believe the act is unconstitutional,” Michael Crowell, a lawyer representing the plaintiffs, said late Thursday by email. He confirmed receiving the same message as the Attorney General’s Office but declined to comment further until a written order comes from the court.

In a court filing, the state’s attorneys said labeling the retention election as a referendum is misleading and that anyone authorized to practice law in North Carolina courts is still eligible to run for the Supreme Court.

“I respectfully disagree” with the judges’ decision, said Rep. Leo Daughtry, R-Johnston, a sponsor of the legislation. “I’m disappointed we’ve gotten to this point.”

Daughtry has pointed to Tennessee courts upholding a “retention election” law in that state as satisfying that state Constitution’s similar requirement that justices be elected by voters.

North Carolina retention elections don’t apply to Supreme Court races where a sitting justice who initially filled a partial term on the court seeks a full term.

Copyright © 2018 The Washington Times, LLC.

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