State lawmakers could vote to expand North Carolina’s Supreme Court by up to two additional members, according to the N.C. Constitution. There’s been speculation about such a move in the wake of challenger Mike Morgan’s victory over incumbent Bob Edmunds in this week’s state Supreme Court election.
The court is officially nonpartisan, but the current composition of the seven member court features four Republican justices and three Democrats. Morgan is a Democrat. Edmunds is a Republican. So Morgan’s victory flips the high court from a 4-3 Republican majority to a 4-3 Democratic majority starting in 2017.
Observers have asked whether the N.C. General Assembly could expand the number of justices to blunt the election’s impact. The answer is yes.
Article IV, Section 6 of the N.C. Constitution spells out membership of the state’s highest court.
Sec. 6. Supreme Court.
(1) Membership. The Supreme Court shall consist of a Chief Justice and six Associate Justices, but the General Assembly may increase the number of Associate Justices to not more than eight. In the event the Chief Justice is unable, on account of absence or temporary incapacity, to perform any of the duties placed upon him, the senior Associate Justice available may discharge those duties.
(2) Sessions of the Supreme Court. The sessions of the Supreme Court shall be held in the City of Raleigh unless otherwise provided by the General Assembly.
Expansion beyond eight associate justices would require a state constitutional amendment.
If Republicans hope to expand the high court in order to add Republican justices, their time might be limited. Current election returns suggest Democratic Attorney General Roy Cooper will take office as governor in January. The governor appoints members to vacant court positions, as spelled out in Article IV, Section 19.
Sec. 19. Vacancies.
Unless otherwise provided in this Article, all vacancies occurring in the offices provided for by this Article shall be filled by appointment of the Governor, and the appointees shall hold their places until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, when elections shall be held to fill the offices. When the unexpired term of any of the offices named in this Article of the Constitution in which a vacancy has occurred, and in which it is herein provided that the Governor shall fill the vacancy, expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill that vacancy for the unexpired term of the office. If any person elected or appointed to any of these offices shall fail to qualify, the office shall be appointed to, held and filled as provided in case of vacancies occurring therein. All incumbents of these offices shall hold until their successors are qualified.
There is no current plan for the General Assembly to return to Raleigh before Jan. 11, 2017. But Gov. Pat McCrory has said he expects to call lawmakers back to town before the end of the year to address issues related to Hurricane Matthew recovery.