The state House on Tuesday narrowly approved a bill that would require appellate judges to win retention elections to hold their seats. If House Bill 222 becomes law, it would apply to the chief justice and other justices on the N.C. Supreme Court as well as all judges on the N.C. Court of Appeals.
The bill passed by a 60-57 vote even though several lawmakers questioned the need for the change and House Speaker Pro Tem Paul “Skip” Stam, R-Wake, issued a memo challenging the constitutionality of the proposed statute.
Under the legislation, appellate judges would continue to take office initially by winning a two-candidate election. To serve a second or subsequent term, however, a “retention” election would be held at the end of the term, with voters asking to approve or disapprove the jurist. Any judges who do not get the approval of 50 percent or more of the voters would leave office, and the governor would appoint a replacement who would serve until the next general election, where he or she could win a full term in a two-candidate election. Retention elections would apply only to judges who have been elected, not to those who were appointed to the bench by the governor.
The process for replacing judges who were defeated in a retention election would be the same as that for judges who retire, resign, die in office, or are removed during their terms.
“For those folks that actually have been elected — have been duly elected in a race — at the end of their term, they would be subjected to a retention election,” Rep. Robert Bryan, R-Mecklenburg, explained to his colleagues on the House floor. “It would just be an approval. Basically do you want to retain Joe Smith as a Supreme Court justice? It would be a yes or no to retain that person.”
According to Ballotpedia, 18 states require at least some judges to win retention elections to keep their seats. Among them, Illinois and Pennsylvania have electoral systems similar to that propsed in H.B. 222. Illinois adopted retention elections in 1964, and 29 judges have lost retention elections. Pennsylvania adopted its system in 2013.
If a majority of the voters vote yes, the person would win an additional eight-year term. If not, a vacancy would occur at the end of that person’s term.
Rep. Grier Martin, D-Wake, offered support for the move. “This isn’t a complete solution, but it is a good step forward,” Martin said.
His effort to amend the bill to reinstate the public campaign finance fund for appellate judicial candidates was ruled out of order.
Rep. Michael Speciale, R-Craven, didn’t like the proposed change. “There’s nothing wrong with the system that we have,” Speciale said. “Please vote this thing down.”
Rep. Marilyn Avila, R-Wake, agreed with Speciale. “I personally don’t see any reason why we need to go through this convoluted method,” Avila said. “Taking the power of the voters to make that decision is not the way to go.”
Currently, appellate judges are elected on a nonpartisan basis. However, a separate bill has already passed the House to make those elections partisan. The bill is now in the Senate.
Stam chaired the debate on the House floor but did not discuss the bill at that time. The memo he distributed asserts that the bill unconstitutionally expands the meaning of the word “election” in the N.C. Constitution to include a retention election. It notes that the word “election” is used numerous times in the Constitution, and if the General Assembly could expand the definition to include retention elections for appellate judicial races, couldn’t it do the same for other elections, such as those for governor or the legislature.
The memo also asserts that the change would unconstitutionally disqualify people other than incumbents for running for those appellate court seats.
Barry Smith (@Barry_Smith) is an associate editor of Carolina Journal.