Several state Supreme Court justices showed skepticism during a Wednesday hearing over the constitutionality of a recent law establishing “retention” elections for appellate court judges.
While the state’s solicitor general urged the justices to reverse a lower court ruling and allow the retention law to take effect, the plaintiffs’ attorney told the high court that a retention vote is not an election, and does not pass constitutional muster.
“This act is unconstitutional for two reasons,” said attorney Michael Crowell, who represents the plaintiffs, including attorney Sabra Faires, who under the new law was denied the opportunity to file for office and challenge incumbent Justice Bob Edmunds. “First, this is not an election under the meaning of Article IV Section 16 of the Constitution.” Second, Crowell inferred, the retention law adds a qualification to a Supreme Court office seeker by requiring a candidate to be an incumbent to be on the ballot in certain elections.
Crowell said Faires is qualified to run for Supreme Court justice, notwithstanding the law, passed by the 2015 session of the General Assembly.
“If she cannot run, one of two things has to be true,” Crowell said. “Either it’s not an election, or it’s an election but she’s been disqualified for some reason.”
John Maddrey, the state’s solicitor general, disagreed.
“The established judicial retention election is in fact an election, contrary to the conclusion of the Superior Court,” Maddrey said. “Second, the legislation does not add additional qualifications for office.” Maddrey went on to say that the court shouldn’t confuse the qualifications or eligibility to run for office with the “opportunity” to seek a Supreme Court justice seat.
Under the judicial retention law, incumbent Supreme Court justices who have won their seats in a previous election and whose terms are ending can file with the State Board of Elections to seek another term.
The filing triggers the retention process, and only the incumbent justice’s name would be on the general election ballot. Voters could vote for or against the incumbent. If a majority votes for the incumbent, he or she would win an additional eight-year term. If not, the seat would be declared vacant.
Incumbent Justice Bob Edmunds, whose term is up at the end of the year, filed a notice with the State Board of Elections seeking an additional term. Faires, along with two Wake County voters, filed the lawsuit challenging the new law’s constitutionality.
A panel of three Superior Court judges declared the law unconstitutional in February. Wednesday’s Supreme Court hearing was set up in an attempt to expedite a decision in the case.
Edmunds entered the Supreme Court chambers Wednesday morning, along with the other six justices. But once Chief Justice Mark Martin called the case, Edmunds exited the room, recusing himself.
Justice Paul Newby asked Crowell whether a retention vote fits the N.C. Constituion’s definition of an election, saying that 1868 session laws referred to a pending referendum on a new state constitution as an “election.”
Crowell responded that the constitution adopted that year set up an election for judicial branch officers “in the same manner as the  General Assembly.”
Other justices, including Justice Barbara Jackson, asked Maddrey to distinguish between elections for justices and elections for other constitutionally mandated offices, such as governor, lieutenant governor, and General Assembly seats.
“If the same language is employed for all these elections to public office, would having a retention election for the office of the Supreme Court justice then open the door for a retention election for those offices?” Jackson asked.
Maddrey said he was aware of that argument, but said that the Wednesday hearing was a review only of “limited judicial retention elections.”
Justice Sam Ervin IV followed up, asking if there was any textual basis in the Constitution for distinguishing between judicial elections and elections for other offices.
Maddrey said he didn’t see any textual definition in the Constitution. “I think there is a strong argument that judicial elections are different from other elections, say Council of State or for legislative seats or other matters that are run on a statewide basis pursuant to the Constitution,” he said.
Maddrey said the General Assembly had the prerogative to set specific election procedures for judicial elections that are not applicable to other elected offices.
The court typically issues its rulings several months after it hears appeals. But since this case is on an expedited track, and a potential primary is roughly seven weeks away, a ruling could come earlier than usual.
If the Supreme Court nullifies the judicial retention law, the seat would be filled during the Nov. 8 general election. Four candidates, including Edmunds and Faires, have filed for the seat. The other two are Daniel Robertson and Mike Morgan. A primary to reduce the number of candidates to two would be set for June 7, concurrent with the congressional primaries.
If the justices uphold the judicial retention law, no primary will be held and a retention vote on Edmunds will be on the Nov. 8 general election ballot.