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Tied Supreme Court decision disallows judicial retention elections, for now

North Carolina voters will have more than a “yes-or-no” option when casting ballots in the state Supreme Court primary this June, after the state’s highest court split its vote 3-3 in early May over the constitutionality of a new voting law.

The split decision means that North Carolina must hold contested, nonpartisan elections, overturning legislation passed by the General Assembly last year that allowed for incumbent state Supreme Court justices to run for additional terms in a procedure called retention elections.

John Scott, a director at The Pew Charitable Trusts and a public policy professor at UNC, said a state's definition of an election is technically based. 

"Some states might call all ballot issues — contested elections, referendum— under the same term 'election' only to refer to ones in which there is a contest between two candidates," Scott said. "It is really about how N.C. state law consistently uses and interprets the term."

Retention elections, which are used in 20 other states at appellate or trial court level elections, enable current justices to seek re-election without opposition. Voters decide whether or not to retain them in a simple yes-or-no vote.

The court ruling means the state will hold a contested, nonpartisan election June 7 for the open N.C. Supreme Court seat currently held by incumbent justice Bob Edmunds.

A three-judge panel of the Wake County superior court declared the contested law unconstitutional March 4. Their decision stated in a unanimous opinion that “(the law) adds as an additional qualification for the office of supreme court justice that the candidate must be the incumbent justice.”

N.C. Rep. Verla Insko, D-Orange, agreed with the three Wake County judges’ challenge and reasoning.

“The constitution is pretty clear,” Insko said. “It says that the justices shall be elected. A retention election really isn’t (an election). You’re really not competing with anyone, you’re not nominated and you don’t go through a primary process.”

The state legislature appealed the decision to the state Supreme Court, which tried the case May 6. After Justice Edmunds recused himself from participating due to a conflict of interest, the court came to a 3-3 tie, meaning the Wake County superior court’s challenge stands and no precedent will be established from the decision.

House Democrats interpreted the contested law as a political move by House Republicans to keep themselves in power, said Insko.

“They’re passing bills that will have an impact on their long term ability to stay in power, which is smart for them to do,” Insko said. “If they can get judges when they’re in power, and not to have to face opposition later, it is very much to their advantage.”

The state constitution does not define a time frame by which the case must be permanently resolved with a full bench. The state also recently passed its self-imposed bill filing deadline May 10, making Republicans unable to introduce a new retention election bill. 

The Republicans have other options to make their retention elections the law, such as taking a current, similar bill on the floor of the senate, clearing its content and rewriting it as new legislation.

However, if Democratic gubernatorial candidate Roy Cooper defeats governor Pat McCrory in November, and the House Democrats pick up four more seats, the party will possess enough power to sustain a veto.

Darren Jackson, D-Wake, thinks Republicans may attempt to leave the matter up to referendum before then.

“(The Republicans) might put it on the ballot and have the people vote on it,” Jackson said. “If they really want retention elections, the solution would be to write a constitutional amendment to allow them.”

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