Supreme Court deadlock kills retention elections for now

Voters will decide who fills a pivotal seat on North Carolina’s Supreme Court after the court divided 3-3 on whether the state’s constitution permitted legislators to introduce retention elections for Supreme Court justices.

The deadlock leaves in place a March ruling by a panel of three superior court judges that the retention elections were not permissible.

Incumbent Justice Robert Edmunds, Cary attorney Sabra Jean Faires and Wake County Superior Court Judge Mike Morgan will all appear on the ballot in the June 7 nonpartisan election that will now go ahead as planned. Faires was one of the plaintiffs in the lawsuit challenging the law. Edmunds recused himself from the case, thus creating the possibility of a deadlock.

The 3-3 split means that the court’s decision carries no value as precedent and so the issue could come back to life in time for the 2018 elections.

The retention elections law had received a skeptical hearing from some of the justices at oral argument April 13, after which a hung court appeared to be about the best-case scenario that supporters of the law could hope for.

As is typical in cases where the court is evenly divided, the summary opinion did not reveal which justices fell on each side or shed any light on their reasoning. While Supreme Court races are nominally nonpartisan, three of voting justices are Republicans and three are Democrats—explaining why the election for Edmunds’ seat is such a potentially significant one.

Michael Crowell of Tharrington Smith in Raleigh, Faires’ attorney, said he hoped the issues raised in the lawsuit would inform the debate if legislators choose to reconsider the issue in light of the court’s decision. Crowell had argued in the case that allowing lawmakers to choose on a year-by-year basis whether appellate judges would face traditional elections or the more incumbent-friendly retention elections would present a grave risk to judicial independence.

“When we started this case, I thought it would end up being a unanimous decision. It did not seem to be a close question, so I was a bit surprised by the even vote, but nevertheless, we’re pleased with result,” Crowell said. “The problem with the decision being 3-3 and not knowing how the justices voted is that everyone is assuming that it was on party lines, and I think that’s really unfortunate for the court. Politics ought not to be part of a decision, and I hope it was not in this case.”

The state’s legislators are unlikely to take any action in response to the case before it adjourns the 2016 session. It remains unclear whether lawmakers will take another whack at retention elections in 2017 or kick the issue into the long grass.

Rep. Leo Daughtry, R-Johnston, one of the primary sponsors of the law, said he hoped that the state will someday be able to institute retention elections for both Supreme Court justices and judges on the Court of Appeals, who were not included in the now-nullified law. (Daughtry will not be a participant in that battle, having announced that he will retire after this term.)

“Most of the people over here are very disappointed,” Daughtry said. “We thought that it was a constitutional law that would pass muster, but obviously there was a 3-3 vote, and so it didn’t work out like we had hoped, and I don’t suspect we’ll do anything during this session about that other than watch the election take place and see the Supreme Court become much more political than we hoped it would become.”

Follow David Donovan on Twitter @NCLWDonovan