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Editor’s note: Due to technical problems, this article initially published Thursday, April 14, 2016, via the Carolina Public Press newsletter. It has since been updated to reflect news developments on April 15.

It’s not clear exactly when voters will find out if there will be June 7 primary for a seat on the Supreme Court of North Carolina, but the question is now in the hands of the court itself.

Justices seemed to signal a divided court Wednesday as they asked pointed questions during oral arguments in a case that will decide how state Supreme Court justices are re-elected.

The court was next set to release opinions on Friday, but gave no indication of whether Wednesday’s case would be among them. As it turns out, it wasn’t.

The justices found themselves Wednesday hearing arguments on how to fill their own seats as a result of a legal challenge to a 2015 law that was due to affect 2016 elections for the first time.

Previously, voters elected state Supreme Court justices every eight years, with incumbents facing any challengers who met the requirements to get on the ballot. The General Assembly’s new plan would call for a yes-or-no vote on whether to retain incumbent justices. Only if voters first rejected an incumbent would the state conduct a new election for the seat.

Questions from the bench Wednesday ranged from whether approving the new arrangement might also mean that General Assembly seats could be treated the same way to whether a 1961 change to the state constitution gave tacit permission for changes in the way justices are chosen.

“Some of the justices came up with some arguments that the lawyers from the other side hadn’t thought of,” Michael Crowell, attorney for the three people challenging the new law, told Carolina Public Press on Wednesday.

He also said it’s good that the court is hearing the case on an expedited basis, given both its importance and the potentially upcoming election.

North Carolina Solicitor General John F. Maddrey, who argued for the state, told CPP that it’s his office’s policy not to comment on ongoing litigation.

Is it really an election?

Of the three plaintiffs, one is already a candidate for the state’s high court following the lower court ruling that the state is appealing. That decision forced the N.C. Board of Elections for provide for elections this year under the old system, at least pending the outcome of the appeal.

The plaintiffs’ argue that an up-or-down retention vote doesn’t meet the state constitution’s requirement for justices to be elected. If that does count as an election, they say, only allowing incumbents is an unconstitutional restriction on who can run.

“This is the most significant change in the way judges are chosen since the Constitution of 1868,” Crowell told the court Wednesday.

Two friend-of-the-court briefs have been filed by outside groups supporting the plaintiffs.

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The American Civil Liberties Union of North Carolina Legal Foundation and the Center for Law and Freedom at the Civitas Institute filed a joint brief. The left-leaning ACLU and the right-leaning Civitas joined together for a filing that warns of “grievous consequences” if the 2015 law were to be ruled constitutional. The two groups don’t necessarily oppose judicial retention elections, the filing says, but approving the method used by the General Assembly could open the door to retention votes, rather than traditional elections, for governor.

John V. Orth, a veteran professor at the UNC School of Law, filed the other brief. He also argued that the retention votes don’t rise to the level of a constitutionally valid election.

“The established judicial retention election is, in fact, an election,” Maddrey said during oral arguments.

Conflict of interest?

After a Wake County court sided with the plaintiffs last month, striking down the law on constitutional grounds, and the state appealed, some observers wondered how the seven justices could ethically hear a case that came so close to their own judicial careers.

As it turns out, all seven members aren’t hearing the case.

Justice Robert H. Edmunds Jr. has recused himself. He’s the justice whose re-election plaintiff Sabra Faires is challenging, unless his colleagues on the court reverse that earlier decision in time to prevent the elections now set for voting rounds in June and November.

Edmunds is a Republican. His recusal left the court with three Republicans and three Democrats.

The change in the way justices are re-elected came from the Republican-controlled General Assembly. Other states have found that judicial retention elections are typically easy wins for incumbents. Re-electing Edmunds would help maintain a Republican majority on the high court.

Judicial elections are ostensibly nonpartisan, but candidates’ affiliations are well known.

If the decision in this case splits along party lines 3-3 as a result of Edmunds’ recusal, the lower court’s ruling would stand.

Oral arguments

In an appellate case of this nature, questions from justices are both potentially important to the legal outcome and one source of information for those seeking to divine the court’s ultimate decision.

Wednesday’s questions ran the gamut from implied support to suggestions of serious doubt.

Justice Paul M. Newby, a Republican, was perhaps the most vocal with questions that might suggest the General Assembly’s maneuver was constitutional.

Newby asked about a 1989 case, Martin v. Preston, in which the state Supreme Court upheld the legislature’s decision that effectively extended judicial terms of office. The state constitution says a judge should serve eight-year terms and until a successor has been elected and qualified.

In the 1989 decision, the state Supreme Court found that the General Assembly wasn’t lengthening judges’ terms in office, but instead creating a gap between the end of the judges’ terms and the start of the next terms. Because judges serve until their successors are elected, the judges would continue to sit until at least the next election.

Newby also asked about a 1961 change to the state’s constitution. Since 1868, the document had said the justices “shall be elected by the qualified voters of the state, as is provided for election of members of the General Assembly.” In 1961, the constitution was amended to state that the justices “shall be elected by the qualified voters,” omitting the explicit link with General Assembly elections.

Such a change might suggest that the election of justices no longer needs to parallel the election of state legislators.

In reply, Crowell traced the 1961 amendment to a state commission in the late 1950s. In the commission’s report, he told the justices, he found a note indicating specifically that the change to the constitution’s language would not change the way justices were elected.

“That was an editorial change,” Crowell said. “It wasn’t meant to be a substantive change.”

Crowell, now in private practice, has spent decades studying topics related to state law, and particularly election law, including two stints at what’s now called the UNC School of Government, according to his biography on the website of his firm, Tharrington Smith.

His accomplishments include writing the manual used by election precinct officials statewide and serving on the General Assembly Election Laws Revision Committee.

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Justice Robin E. Hudson, a Democrat, challenged Maddrey on his assertion that only putting the incumbent on the ballot is akin to other ballot restrictions, such as filing fees, and not a new qualification to be eligible for an election.

If the rest of the court agrees with this, that would be problematic for the law’s constitutionality. The General Assembly isn’t constitutionally able to add new qualifications.

Not every eligible voter is constitutionally guaranteed a right to run for office, Maddrey countered, standing by his assertion that keeping challengers off the ballot is a constitutionally valid restriction.

Justice Barbara Jackson, a Republican, asked Maddrey about implications for other offices.

The state constitution uses the same language to describe elections for judges and elections for other offices, including seats in the General Assembly. If this change is constitutional, she asked, would that mean it would be constitutional to switch to retention votes for members of the General Assembly?

Maddrey said the current case is about whether the judicial retention elections are legal, not anything broader.

Pressed on the issue by Justice Sam Ervin IV, a Democrat, Maddrey said he wasn’t aware of any distinction in the constitution’s text that would bar retention votes for other state offices. The distinction, he said, would come from the inherent difference between judgeships and other offices.

“I think there is a strong argument that judicial elections are different from other elections,” he said.

Ted Strong

Ted Strong is a contributing reporter to Carolina Public Press. Contact him at ted.g.strong@gmail.com.

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