RALEIGH, N.C. (AP) — North Carolina’s new alternate method of choosing members of the state Supreme Court was formally challenged Monday with a lawsuit arguing up-or-down votes of sitting incumbents aren’t truly elections and are therefore unconstitutional.
The litigation filed in Wake County court seeks to block a law approved in June and signed by Gov. Pat McCrory giving most sitting justices the option to be re-elected to additional eight-year terms without head-to-head matchups with challengers.
The lawsuit contends these “retention elections” are not really elections but referenda that violate the state Constitution’s mandate since 1868 that justices must “be elected by the qualified voters” of the state for eight-year terms. The changes, the lawsuit says, also add an unlawful requirement to running for the courts — namely that one must be an incumbent.
The plaintiffs — former Court of Appeals candidate Sabra Faires and two registered voters, “simply contend that this fundamental change in the selection of justices requires an amendment to the state Constitution,” the lawsuit reads.
Associate Justice Bob Edmunds is the only incumbent up for re-election next year on the seven-member court. He intends to be in the November 2016 retention race. Faires said she wants to run for the seat but can’t because of the new rules.
A three-judge panel would hear the challenge. The plaintiffs want the judges to strike down the method and create a new election schedule to allow for a nonpartisan primary and a general election next November for Edmunds’ seat. That would require separate candidate filing, since the statewide filing period begins Tuesday and continues through Dec. 21 before the March 15 primaries.
Head-to-head elections are still used for Court of Appeals and local court seats.
For decades the General Assembly has debated changing the way judicial candidates are elected, principally to scale back electoral politics and campaign fundraising in selecting judges.
Since the early 1960s, more than 30 proposals to establish retention elections would have required the voters to amend the state Constitution to allow for them, according to the lawsuit.
The new law, however, was enacted without requiring a constitutional amendment.
Rep. Leo Daughtry, R-Johnston, on Monday defended the method he shepherded through the legislature as an actual election. He cited a Tennessee Supreme Court ruling last year that upheld retention elections as satisfying that state Constitution’s similar requirement that justices are elected by voters.
“I think we’re on pretty safe ground to say there is an election … and you’ve got to run in an election before you are capable of being retained,” Daughtry said. A Tennessee case, however, doesn’t have direct bearing on North Carolina.
North Carolina’s retention election law says a justice can’t opt for a retention contest unless the justice first wins a conventional head-to-head election against an opponent. The justice would step down if a majority of voters opposed a new term. The governor would fill the vacancy with someone until the next statewide election within two years.
Retention races for appellate court seats are used in 19 states, according to the National Center for State Courts.