- Associated Press - Wednesday, June 27, 2018

RALEIGH, N.C. (AP) - A proposal to alter how vacancies to North Carolina trial and appeals court judgeships are filled is just one vote away from going on ballots statewide this November in a referendum.

The House gave its initial approval to the idea Wednesday with 72 affirmative votes - the minimum required to advance constitutional amendments like this one. A final House vote could come Thursday. The Senate already backed the legislation earlier this week.

The Republican-dominated General Assembly this week already has formally agreed to submit three constitutional amendments to voters this fall. The most recent came later Wednesday when the Senate backed a House proposal that would make clear the legislature - and not Democratic Gov. Roy Cooper or a future governor - chooses all members of the state elections and ethics board.

If a majority of North Carolina voters agree to the judicial amendment, the governor would no longer have the sole power in making appointments to court seats vacated because of resignation, death or other reasons. Head-to-head elections for the Supreme Court, Court of Appeals, Superior Court and District Court would continue.

Instead, the proposed amendment would direct a nonpartisan “judicial merit” commission be created to receive nominations for vacant statewide judgeships and consider the qualifications of nominees. Local commissions for trial court seats also would be established.



A panel would evaluate nominees as being qualified or nonqualified to fill a vacancy. The commission would submit all evaluations for a vacancy to the General Assembly, which would have to recommend at least two “qualified” nominees to the governor, who would be required to pick one. The appointee would serve potentially for up to nearly four years.

Republicans who have worked on the idea for months have said the current process gives any governor too much power over picking members of the judiciary. They point to governors from both major parties filling judgeships with political allies, some of which had no previous judicial experience.

Governors also have filled vacancies with former appeals court judges after they lost in previous statewide judicial races, thwarting the will of the people, said Rep. Justin Burr, a Stanly County Republican shepherding the bill. Now anyone can nominate any qualifying attorney for a vacancy.

“We need a better process for how vacancies are filled,” Burr said, adding, “This is setting up an open and transparent process.”

Democrats who opposed the proposal said many details were left out, including the makeup of the commissions, which the amendment says would be appointed by the chief justice, the governor and the General Assembly. They say the appointment mechanism described would be super-sized in favor of the General Assembly, fitting in with Democratic narratives that GOP lawmakers have been “rigging the courts” through other courts-related legislation.

“This is an attempt by the legislature to take total control of judicial vacancies, take it away from the governor, who is elected by the entire state,” said Rep. Marcia Morey, a Durham County Democrat and former District Court judge. “This is a partisan power grab and it will be behind closed doors and there will be no sunshine.”

At least three Republicans voted no to the amendment, requiring Speaker Tim Moore to vote - an unusual move - to meet the 72-vote threshold required.

The Senate later agreed 32-14 to put the elections board question on the ballot. If voters approve the proposal, it would add language to the constitution that the legislature controls the appointments and duties of any board or commission they create.

The proposal stems from litigation filed both by Cooper and Republican predecessor Pat McCrory challenging the power of the legislature to pick at least half of a commission’s membership.

The state Supreme Court has sided separately with each governor. Senate Republicans are peeved particularly with Cooper over its tug-of-war over the composition of the elections board, citing a Cooper lawyer’s correspondence suggesting the governor had the right to carry out his policies within the agency.

Cooper currently picks all nine members. The amendment would reconstitute an eight-member board, all appointed by the General Assembly. But like the current board, no party could have a majority of the seats.

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