Final verdict: No judicial election primaries next year

Primary elections that had been scheduled for next year’s judicial and district attorney contests are once again off the table after the state’s legislature voted to override a veto by Gov. Roy Cooper on mostly party-line votes on Oct. 16 and 17.

The vote to override Cooper’s veto of Senate Bill 656 was the House’s last vote before adjourning until Jan. 10, when legislators will reconvene to discuss, among other business, potentially wide-ranging changes to how North Carolina chooses its judges. (Although he left himself some wiggle room, Speaker of the House Tim Moore promised that lawmakers would not be back in session this year.)

A lack of consensus between House and Senate Republicans makes it unclear what steps legislators will resolve to take after New Year’s Day. The Senate left town without taking action on House Bill 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.

That effort to redraw constituencies is the ostensible reason for cancelling the primary elections—Republicans argued that it would be wasteful to have candidates file for races in districts that might soon cease to exist. But much of the debate before the House’s vote centered on persistent rumors that Senate Republicans are planning to spend their winter break crafting a proposal to replace judicial elections with some as-yet-unspecified form of merit selection for judges.

At this point, no one seems confident predicting what might happen after the Christmas decorations are put away.

“There are a lot of things floating around out there, but how that will all pan out, nobody knows,” said Republican Rep. Lee Zachary, who said that the House’s focus has remained on judicial redistricting and he had not seen or heard any specific plans for a merit selection method. “You may hear an idea in the hall, and it never gets turned into a bill.”

Democrats have also raised complaints that the now-ratified bill eliminates primary elections for next year’s elections for three seats on the Court of Appeals and one on the Supreme Court, even though those elections are contested statewide and would be unaffected by redistricting. They allege that the measure is a smokescreen for efforts to put their thumbs on the electoral scales.

“Eliminating judicial primaries was done for one reason, to affect partisan judicial outcomes,” Rep. Duane Hall said. “Every judicial bill, from [laws passed in the last two sessions that reinstated partisan elections for judges] to judicial redistricting has been done solely to gain partisan advantage.”

The only Supreme Court justice up for re-election in 2018 is Barbara Jackson, a Republican. Of the three seats up on the Court of Appeals, one is held by a Democrat, and two are held by Republicans who have announced that they are not running for re-election. Democrats complained that without primaries, voters could be faced with a gaggle of candidates on the ballot for each race. The last few times that’s happened, Republicans vaulted to victory in a fractured field of nominally nonpartisan candidates.

To be replaced by … something

Judicial redistricting and merit selection would not necessarily be mutually exclusive, Zachary pointed out—new boundary lines would reorganize judicial divisions and districts, and redraw residency requirements for judges. But merit selection would drastically lower the stakes of a redistricting effort that opponents claim would otherwise have the (very much intended) effect of radically altering the partisan makeup of the state’s judiciary.

A variety of nonpartisan groups has criticized HB 717 since the proposed new maps appeared without warning on a representative’s Twitter feed in June and were pushed through committee the next day. Republicans said that cancelling primary elections will allow them to heed calls to move slowly and carefully through the redistricting process and take time to incorporate input from all the key stakeholders in the legal profession.

Legislators would have to move quickly, however, in order to have a merit selection process in place before the 2018 elections since scrapping judicial elections would require voters to approve a constitutional amendment. An amendment could be put before the voters as part of the May 2018 primary elections, which will go on as planned for other offices.

Republicans and Democrats alike have at times voiced support for the idea of merit selection for judges. (During floor debate, Republicans repeatedly noted that Cooper himself has spoken in favor of it.) But legislators wouldn’t have much time to hammer out an agreement on the specifics—much less to persuade voters to surrender their right to vote for their judges.

Meanwhile, some legislators are calling for more judicial elections, not fewer. On the same day that Cooper’s veto was overridden, a Republican senator, Bill Rabon, filed a bill that would put a different constitutional amendment on the ballot, one that would require judges at every level to stand for election every two years. It would also terminate the terms of every sitting judge in the state at the end of 2018. A Republican House member, David Lewis, said he plans to file a similar bill soon.

Rabon is the bill’s only sponsor, suggesting that it may not have the legislative oomph needed to secure a three-fifths majority. (Democrats are, to say the least, chilly toward the idea.) But the move suggests that even within the Senate Republican caucus, not everyone is singing from the same hymnal.

Follow David Donovan on Twitter @NCLWDonovan