A colleague recently came into my office carrying Volume 3 of the General Statutes of North Carolina Annotated by Lexis Nexis (what we attorneys call “the green book”) with a sticky note at the entry for G.S. 7A-4.1. The colleague said: “We don’t have retention elections for judges in North Carolina, do we?” “No,” I responded. Yet, as I looked at the entry for G.S. 7A-4.1, which sets forth a procedure for retention elections for justices of the North Carolina Supreme Court and contains no annotations or case notes to the contrary, I realized that answer requires a bit of explanation.
Retention elections. Retention elections are elections in which voters determine whether a current office-holder obtains a new term of office at the conclusion of his or her current term. Voters vote yes or no (or for or against) the retention of the office-holder whose name appears on the ballot. If the person is not retained in office, the position is deemed vacant and is filled pursuant to the law governing vacancies.
Retention elections are part of the judicial selection process in many states. See, e.g., Alaska Stat. § 22.15.195 (providing for retention elections for district court judges); Ariz. Rev. Stat. § 12-120.02 (providing for retention elections for court of appeals judges); Cal. Const. art. VI, § 16 (providing for retention elections for appellate and superior court judges); Colo. Const. art. VI, § 25 (providing for retention elections for justices and judges); Fla. Const. art. V, § 10 (providing for retention elections for justices and judges); Ill. Const. art. VI, § 12 (providing for retention elections for appellate and circuit judges); Mo. Const. art. V, § 25(c)(1) (providing for retention elections for circuit and associate circuit judges); N.M. Stat. Ann. § 1-26-2 (providing for retention elections for justices and judges); Pa. Const. art. V, § 15 (providing for retention elections for appellate and circuit judges); S.D. Codified Laws § 16-1-2 (providing for retention elections for justices of the supreme court); Tenn. Const. art. VI, § 3 (providing for retention elections for judges of the supreme court and intermediate appellate courts); Utah Code Ann. § 20A-12-201 (providing for retention elections for justices and judges).
The North Carolina Courts Commission (“Courts Commission”) recommended them for North Carolina as well in that body’s fourth biennial report issued to the 1971 General Assembly. The Courts Commission proposed retention elections as part of a nonpartisan merit plan for the selection of judges. Specifically, that body recommended that Art. IV, Section 16 of the North Carolina Constitution be amended to (1) authorize a judicial nominating commission to recommend to the Governor a list of qualified nominees for vacant judgeships; (2) direct the Governor to select a judge from this list; and (3) provide that the appointee stand for re-election on a nonpartisan yes or no ballot at the next general election occurring more than a year after the initial appointment. See Report of the Courts Commission to the North Carolina General Assembly, at 11 (1971). That proposal died in legislative committee in 1971, see James C. Drennan, Judicial Reform in North Carolina, in Judicial Reform in the United States 23 (Champagne & Haydel, eds., 1993), and, despite merit selection proposals remaining on the legislative agenda during the 1970s, none were enacted by the legislature, see Samuel Latham Grimes, “Without Favor, Denial, or Delay”: Will North Carolina Finally Adopt the Merit Selection of Judges?, 76 N.C.L. Rev. 2266, 2300 (1998). Eventually, retention elections ceased to be a component of proposals to change the method of judicial selection. See Drennan, supra, at 32-36.
Yet twenty-five years after the Courts Commission report of 1971, the Commission for the Future of Justice and the Courts in North Carolina (“Futures Commission”) echoed the Courts Commission’s recommendations, proposing the appointment of judges followed by retention elections. See Commission for the Future of Justice and the Courts in North Carolina, Without Favor, Denial or Delay: A Court System for the 21st Century (Dec. 1996), at 32. The Futures Commission opined that retention elections would counter the dangers of “eliminating all participation by voters,” which “could result in an isolated judiciary with no real check on its power.” Id.
What happened in 2015. House Bill 222, titled An Act Allowing Voters to Elect, and Then Retain, Justices of the North Carolina Supreme Court and Judges of the North Carolina Court of Appeals Up for Election, was introduced in the North Carolina General Assembly in March 2015. After the bill passed the House in a 61-56 vote, the Senate removed court of appeals judges from its provisions, meaning that the change would immediately affect only North Carolina Supreme Court Justice Bob Edmunds (a Republican), the only justice whose term was set to expire on December 31, 2016. The News and Observer reported the controversy associated with the legislation, quoting current Governor Josh Stein, then a Democratic state senator from Wake County, as stating during the Senate floor debate that the bill “appears cravenly political.” Benjamin Brown, The 2016 Vote: Challenge is filed to ‘retention’ election — Challenge made to ‘retention’ Supreme Court race — Past candidate Sabra Faires says she should be able to run, The News & Observer (Dec. 2, 2015). Despite opposition, the bill, as amended, passed both chambers and was signed into law by Governor Pat McCrory in June 2015. See S.L. 2015-66, An Act Allowing Voters to Elect, and Then Retain, Justices of the North Carolina Supreme Court for Election.
S.L. 2015-66 contained new G.S. 7A-4.1, providing for retention elections for justices of the state supreme court who desired to continue in office after the conclusion of a term to which they had been elected. It also enacted G.S. 7A-4.2, providing that if the voters approve retention, the justice is retained for a new eight-year term, and if voters fail to approve retention, the office is deemed vacant.
The rest of the story. Had that been the end of the matter, Justice Edmunds, who filed for retention, would have appeared on the 2016 ballot for a retention vote. But in November 2015, three plaintiffs sued the North Carolina State Board of Elections, alleging that the act was unconstitutional. See Faires v. State Board of Elections, 15CV015903 (Wake Co. Sup. Ct. filed November 30, 2015).
The plaintiffs (one who stated that she wished to file for Edmunds’ seat, and two others who were Wake County voters who stated that they wished to vote for justice of the state supreme court in 2016) contended that “this fundamental change in the selection of judges” could only be brought about by an amendment to the state constitution. See Faires v. State Board of Elections, 15CV015903. The matter was assigned pursuant to G.S. 1-267.1 to a three-judge panel, which ruled in favor of the plaintiffs in a March 2016 order.
The order concluded that S.L. 2015-66 violates Art. IV, Section 16 of the North Carolina Constitution because a retention election is not an election for office of supreme court justice as required by the constitution. It also held that the act violates Art. IV, Sections 6 and 8, and Article IV, Section 22, by adding an additional qualification to the office of supreme court justice, namely that the candidate be the incumbent justice. The order enjoined the state board of elections from conducting a retention election pursuant to S.L. 2015-66.
The board of elections appealed to the state supreme court. Justice Edmunds recused, and the remaining six members of the state supreme court were evenly divided. See Faires v. State Bd. of Elections, 368 N.C. 825 (2016) (per curiam). Thus, the judgment of the three-judge panel was left undisturbed but without precedential value. That’s why there are no annotations in the green book to alert readers of the three-judge panel’s determination that G.S. 7A-4.1 and G.S. 7A-4.2 are unconstitutional.