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EDITOR’S NOTE: Since this article first appeared, Justice Robert Edmunds Jr. has recused himself. No other justice has done so. The remaining six members of the court are schedule to hear the case on April 13.

After a March 4 lower-court ruling rejected a new system for determining the makeup of the N.C. Supreme Court ruling, the state Board of Elections is pursuing an expedited appeal of that decision — to the N.C. Supreme Court.

Government observers from across the political spectrum  told Carolina Public Press on Friday that this may raise serious questions about a conflict of interest, but no solution to the problem is clear.

In the meantime, state elections officials are once again shaking up the political calendar and balloting for 2016 in response to a late court decision.

Conflict of interest?

“We’ve been talking about this down the halls,” Frayda Bluestein of the University of North Carolina School of Government told CPP on Friday. “There just isn’t any precedent.”

“Clearly, (Associate Justice Robert Edmunds Jr.) should recuse himself at the very least,” said Chris Fitzsimmons, director of left-leaning N.C. Policy Watch, in a phone interview Friday with CPP. Edmunds’ situation is the most urgent, Fitzsimon said, because he’s the only justice whose current term is up in 2016. Fitzsimon urged Edmunds to see the “ridiculousness” of his own situation and let the other six justices decide the case.

Rick Henderson, managing editor of the right-leaning John Locke Foundation’s publication, Carolina Journal, told CPP that the potential conflict did raise legitimate concerns, with the losing party before the high court being able to cast serious doubt on the fairness of the process.

While he personally tends to agree with the legal logic of the lower court in rejecting conservative lawmakers’ attempt to reform the selection process, Henderson also questioned letting justices make the final decision on the makeup of their own court, potentially thwarting the will of legislators.

Henderson wondered whether there might be a mechanism for moving the entire appeals process in this case to the federal courts, though he wasn’t aware of any previous case that created such a precedent.

But Bluestein said there isn’t a way ask for federal intervention in this case, since no federal issues have been raised that would give jurisdiction to the U.S. courts. There’s simply no one else to hear the case, she said.

The issue isn’t necessarily an abstract one because Edmunds is one of four conservative justices on a court that also includes three liberal justices, Fitzsimon said. What voters decide in 2016 and how they decide it will determine which way the court leans politically.

Fitzsimon said he largely blames the General Assembly for creating this problem by not enacting a change in a more appropriate matter, such as through a constitutional amendment, which how other states that have altered selection of justices have proceeded.

Election schedule

The General Assembly approved the legislation creating retention elections for the state Supreme Court last year. Under the new system, which is followed in some other states, voters would decide whether each justice should keep serving, without having to think about who would replace them. If a justice was rejected, then an open election would occur for that seat. But if voters decide to retain a justice, no one can challenge them.

In practice, states with retention elections often go many years without seeing voters call for removal of a justice, making high court elections rare. This can help insulate court members from politics. But it can also insulate them from accountability. Whether it’s a good system is a debatable question. The answer sometimes depends on which justice of which political leaning would benefit.

A Wake County superior court panel ruled March 4 that the new law violates the state constitution’s system for selecting court members, since it would set up a referendum on sitting justices, rather than allowing them to compete against challengers. Despite the state’s pursuit of an expedited appeal, the case likely won’t be resolved in time for this year’s elections. So the N.C. Board of Elections announced its backup plan Thursday.

With the filing period for most state judicial offices on the 2016 ballot having passed in December 2015, the Board of Elections announced a special filing period for state Supreme Court candidates from noon Wednesday, March 16, through noon Friday, March 25.

Unlike many other offices, prospective candidates for the N.C. Supreme Court won’t be able to file at their county elections offices, but will have to do so at the state office in Raleigh. They’ll need to include a filing fee equal to 1 percent of the salary for the seat.

This schedule also creates an additional headache due to North Carolina primary voters heading to the polls on Tuesday, March 15. Because of the possibility that a primary will be needed for any seat on the high court with three or more filed candidates, a different date was needed for such potential primaries and elections officials chose June 7.

If that extra round of voting is needed, it shouldn’t pose any additional cost to taxpayers. That bridge has been crossed, thanks to the state’s response to an earlier federal court ruling affecting congressional districts, which had already triggered the primary date on June 7.

The fate of that vote remains up in the air as courts could reject the recently redrawn congressional map as well, which a group of litigants are asking them to do.

The state is appealing the decision rejecting the old maps to the U.S. Supreme Court, but federal justices have refused to issue an emergency injunction so their decision in the case would probably not be in time to affect the 2016 election cycle.

Because of uncertainty about which map, if any, would be in effect by November, elections officials have encouraged voters for the March 15 primary and those voting early to fill out the entire congressional ballot based on the old districts, just in case a subsequent ruling says the state should use that map after all.

But if a court doesn’t intervene, then voting on candidate who filed for Congress under the new map would take place June 7, along with the newly scheduled primary for the N.C. Supreme Court, if needed.

Frank Taylor

Frank Taylor is the managing editor of Carolina Public Press. Contact him at ftaylor@carolinapublicpress.org.

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