Judicial elections next year up in the air after veto

The status of next year’s primaries for judicial and district attorney elections are in limbo after Gov. Roy Cooper vetoed a bill that would have cancelled those primary elections while legislators work on crafting as-yet-unspecified changes to the way North Carolina elects judges and prosecutors.

Cooper vetoed the bill, SB 656, on Oct. 9. In his veto message, Cooper said that the bill “[would abolish] a scheduled election and take away the right of the people to vote for the judges of their choice,” and alluded to several recent high-profile cases in which state judges have struck down laws passed by the General Assembly.

“It is a first step toward a constitutional amendment that will rig the system so that the legislature picks everybody’s judges in every district instead of letting the people vote for the judges they want,” Cooper wrote. “If the legislature doesn’t like the fact that judges are ruling many of their laws unconstitutional, they should change their ways instead of their judges.”

The veto capped a whirlwind week in the state’s capitol. The move to cancel the elections emerged as if out of thin air when leaders of both houses struck a deal on Oct. 4 to insert the provision inside a previously unrelated elections bill. The amended bill cleared both houses the next day on a mostly party-line vote.

House Speaker Tim Moore told the press that his chamber plans to take up a vote to override the veto when the House returns for a scheduled session in January, and the vote figures to be a very near-run thing. It takes 72 votes in the House to override a veto, and SB 656 passed the House with 70 votes, although four Republicans were either absent for the vote or didn’t cast a vote. Two Republicans voted against the bill, offset by two Democrats who voted in favor.

So far, so typical—a political battle playing out between Republicans and Democrats, and between the legislature and the executive. But the backdrop for the tussle is an intramural skirmish between House Republicans and Senate Republicans over differing visions for how the judicial selection process should be modified.

On the same day that SB 656 passed the legislature, the House passed HB 717, a bill that would significantly redraw the state’s judicial and prosecutorial districts and one that has drawn strident opposition from nearly every corner of the legal profession. But the Senate has been cool, bordering on downright icy, towards the proposal, and Senate leaders have said they have no plans to consider the bill before the January session.

Instead, multiple legislators and aides have told Lawyers Weekly that Senate leaders would prefer a merit selection process for judges, which might take the form of a system that would empower legislators to appoint judges—something that Cooper also referenced in his message explaining his veto of SB 656.

Legislators would have to move fast in order to get such a system in place before the end of 2018, however, because scrapping judicial elections would require voters to approve a constitutional amendment. If the legislature chose to do so, they could put such an amendment before the voters as part of the 2018 primary elections.

Constitutional amendments cannot be vetoed, but need approval from three-fifths of both houses of the legislature—the same as for a veto override—plus ratification from a majority of voters. It’s unclear what would happen if the legislature cancelled judicial primary elections only to watch voters reject a merit selection amendment. Democrats have complained that junking primary elections could lead to a repeat of situations like a 2014 election where voters were asked to pick from a list of 17 candidates for one Court of Appeals seat, with no run-off.

North Carolina Supreme Court Chief Justice Mark Martin called for merit selection of judges earlier this year, and legislators from both parties have voiced support for the general concept. So far no specific proposals have been laid on the table, but it appears details might be coming early in the next year.

“The short session will be illuminating, I think,” said Peter Bolac, legislative liaison for the North Carolina State Bar, which has historically not made any statements for or against merit selection.

Cooper has vowed to veto HB 717 as well if it ever reaches his desk, and opponents have pledged to challenge the maps in court if they’re enacted over Cooper’s veto.

Follow David Donovan on Twitter @NCLWDonovan