North Carolina Lawyers Weekly
Something old, something new and something borrowed could be coming through.
That’s not a wedding day checklist, but rather describes a trio of bills being considered by the North Carolina General Assembly that could dramatically shake up the state’s methods for electing judges.
A bill that passed the state’s House in late April would require candidates for seats on the state’s Supreme Court and Court of Appeals to run under partisan labels. Judicial elections at all levels have been nonpartisan in North Carolina since the state scrapped partisan elections in 2001. The switch to nonpartisan elections coincided with the creation of a public financing mechanism for appellate court candidates that the legislature also repealed two years ago.
A separate bill, which passed the House the following day, would replace traditional re-election campaigns with retention elections for incumbents seeking additional terms on the bench. In retention elections, which are used in many states, incumbents face an up-or-down vote from the electorate instead of running against an opposing candidate. If voters opt to reject a judge, the governor would then appoint someone else to fill the seat.
Meanwhile, a third bill, recently introduced in the House, would eliminate elections entirely for district court and superior court positions. It would amend the state’s constitution to create a judicial nominating commission that would fill open judicial positions by submitting five nominees to the state legislature, which would then appoint one of those candidates to the bench. Judges seeking additional terms would also be subject to retention elections.
The partisan elections bill, HB 8, passed the House on a nearly party-line vote. All 45 Democrats in the House opposed the bill, along with three Republicans, while 69 Republican House members voted for the bill. The retention elections bill, HB 222, passed on a tighter 61-56 vote, with both caucuses divided, although most Republicans voted for the bill while most Democrats voted against.
You’re invited to a party
Rep. Jonathan Jordan, R-Ashe, one of the primary sponsors of the partisan elections bill, said that the bill’s supporters were concerned by the phenomenon of “drop-off,” where voters who fill out their ballot decline to cast any vote in down-ballot races. Although just shy of 3 million voters cast ballots in the 2014 general election, in all four races for the Supreme Court more than 400,000 voters declined to vote for either candidate. Drop-off for Court of Appeals races was higher still.
Jordan said that legislators were concerned that voters were voting in judicial elections without knowing anything about the candidates, and that the bill was intended to give voters as much information as possible.
“Adding party labels would provide some information to voters, at least about their general philosophy and what label they’ve decide to associate with,” Jordan said. “Otherwise, all you have is a name, and unfortunately most people don’t read the information provided by the State Board of Elections.”
Many in the legal community, however, have questioned whether any information provided by partisan labels would be useful to voters, or possibly even counter-productive.
John Wester, an attorney with Robinson Bradshaw & Hinson in Charlotte and a former president of the North Carolina Bar Association, argued that affixing partisan labels to judicial races would make it more likely that voters might choose a deeply underqualified or poorly suited candidate for an eight-year term on one of the state’s two highest courts.
“We live in a time when we’re bombarded with information, and there is a temptation, so strong that it approaches the irresistible, to rely on a label. Just give me a label that I can embrace, and I won’t have to think further about whether that person is someone for me to elect,” Wester said. “The biggest problem with labels is that they short-circuit our thinking process. Conservative and liberal, or Republican and Democratic labels have nothing to do with the vast majority of issues coming before judges.”
Jordan said that it would very likely vary from voter to voter how much emphasis they would put on partisan labels.
“They may see the Republican as more law and order, or more pro-prosecution in a more general sense. A Democratic label might seem to be more pro-defendant,” Jordan said. “Other than that, it’s whatever value each individual voter attaches to that label. But the point we’re trying to make is that it’s something. It’s better than nothing, which is what we have now.”
Bills, bills, bills
Others have suggested that judicial elections in North Carolina are already largely partisan affairs, even without party labels printed on the ballots. All three races for associate justice seats on the Supreme Court in 2014 pitted a candidate identified with and endorsed by the Democratic Party against one identified with and endorsed by the Republican Party.
The de facto Democratic candidate won in all three of those races, even though the 2014 election was a romp for Republicans nationwide. Perceptions that partisan elections might benefit Republican candidates provided the subtext to the party-line debate over the bill in the House.
Burley Mitchell, an attorney with Womble Carlyle and former chief justice of the state’s Supreme Court, said that he felt it would have been wise to allow the recently created nonpartisan elections to go on longer before deciding whether to change them, and that it was unclear to him why the legislature would be interested in reverting back so quickly to partisan elections.
“I think it’s probably fair to say that everyone thinks it will influence elections,” Mitchell said. “They may disagree about whom it will advantage, and I don’t have any idea whom it would help. I would think it would vary from candidate to candidate, but I just don’t know.”
Both the partisan elections bill and the retention elections bill would take effect in time for the 2016 election. Jordan said he wasn’t sure how the two bills would work in conjunction with each other.
“They’re different sponsors and different ideas between the two bills. I don’t think there would be a problem with them working together, though,” Jordan said.
The partisan balance of the state’s Supreme Court will likely hang in the balance of the 2016 election. One seat on the court, currently held by Justice Robert Edmonds, a Republican, is up for re-election next year. Three of the other six seats are held by Republicans, and three are held by Democrats.
A similar dynamic played out in the 2012 campaign between current justices Paul Newby and Sam Ervin. Both candidates accepted funding from the now-repealed public campaign financing system, but outside groups spent around $3.8 million seeking to influence the election, the large bulk of it spent in support of Newby, who wound up narrowly winning.
One state, two systems
When asked why the House’s bill applied only to appellate court elections, Jordan said that its backers felt that local judges have a much greater chance of being known to local voters through their reputations in their communities.
But a third bill, currently sitting in one of the House’s four judiciary committees, would change the method for selecting those judges in an entirely different way. HB 720 would create a 12-person judicial nominating commission (see below) that would vet candidates and submit a shortlist from which the legislature would appoint a judge.
The North Carolina Bar Association has long been publicly in favor of choosing judges via merit selection and nonpartisan retention elections. Catharine Arrowood, president of the NCBA, said the association would like to see that kind of system in place for all judicial positions, not just trial courts. She said the NCBA also supported the House’s retention elections bill, calling it a “step in the right direction,” but opposed the partisan elections bill.
“Partisan election is a step in the wrong direction because it misleads the public that a partisan label is an indication of a how a judge is going to rule in particular situations, and that’s not the case and that should not be the case,” Arrowood said. “Judges are not partisans, and they’re not there to support a partisan position.”
Despite the bar association’s support, it’s unclear whether the merit selection bill has enough support to garner the three-fifths vote it would need in each chamber to appear before voters on the 2016 ballot. The partisan and retention elections bills require only simple majorities and the governor’s approval because the state’s constitution provides that judges should be elected, but gives the legislature discretion over how to conduct those elections.
No other state in the country has given as much legislative attention to the way it chooses judges than North Carolina has in the last two decades or made major changes to its methods since North Carolina’s switch from partisan to non-partisan elections in 2001. Six years prior to that, the House narrowly defeated a similar constitutional amendment that would have created a judicial merit selection system.
North Carolina is one of 22 states that elect appellate judges, and one of 15 that use non-partisan elections and traditional re-elections. The other seven use partisan elections, four with re-elections, and three with retention elections. In 26 states the governor appoints appellate judges with some form of oversight, and in two states appellate judges are elected by the legislature.
Follow David Donovan on Twitter @NCLWDonovan
SEATS AT THE TABLE
The judicial nominating committee proposed by HB 720 would consist of 12 members, eight appointed by the governor, two by the speaker of the House, and two by the president pro tem of the Senate. They would select four non-attorneys and one lawyer each from a list of three names submitted by each of the following organizations:
N.C. Bar Association
N.C. Conference of District Attorneys
N.C. Advocates For Justice
N.C. Association of Defense Attorneys
N.C. Association of Women Attorneys
N.C. Association of Black Lawyers
N.C. Council of the State Bar
Commission on Indigent Defense Services
