Almost lost last week in Raleigh amid all the partisan gerrymandering drama was a decision by a three-judge panel in North Carolina that may have as much impact on the future of the state as the decision by the federal court to throw out the current congressional districts.
The state panel ruled that the judicial retention scheme passed by the General Assembly last year in what appeared to be an effort to protect the conservative majority on the N.C. Supreme Court was unconstitutional.
The state highest court has faced numerous challenges to the ring-wing agenda of the General Assembly in the last five years, from school vouchers to consumer rights to legislative redistricting cases. Thanks to an ideological majority that millions of dollars in donations from outside political groups has helped maintain for Republicans, most of the legal challenges to their agenda have been turned away by the court.
That may no longer be a sure thing.
The law thrown out last week by the state panel called for a retention election for sitting justices instead of a traditional election. There’s only one justice up for election this year, Republican Bob Edmunds, and with the court now split 4-3 in favor of conservatives, the balance of the court is at stake.
Under the law voters would only vote up or down on Edmunds, making it much less likely he would be replaced.
If they did reject him, Governor Pat McCrory would then appoint his replacement who would serve for the next two years and then stand for reelection.
McCrory of course is also a Republican so the legislation all but guarantees that conservatives would maintain control of the court.
The plaintiff in the case, attorney Sabra Faires, argued that the state constitution requires that justices stand for election and not merely be subject to a referendum and the court agreed.
Other states that have retention elections for judges amended their constitutions to create the new process and it looks like that’s the only way it can happen in North Carolina. That would require a supermajority vote in the General Assembly and approval by voters.
The decision by the three-judge panel to strike down the retention scheme is not final. It can go to the N.C. Supreme Court where Edmunds almost certainly would have to recuse himself from the decision, meaning a 3-3 tie is likely, which would leave the decision by the three-judge panel in place and require Edmunds to face an opponent this year to keep his swing seat on the court.
The idea of retention elections isn’t inherently partisan or even necessarily a bad idea. It’s one of the many approaches suggested by well-meaning reformers unhappy with the hyper politicization of judicial races and the lack of interest in the races often shown by voters.
But even if you support the concept of retention elections, it’s hard to make a rational argument that they should start immediately with less than a year’s notice and with the ideological control of the court at stake.
If lawmakers were serious about the idea, the law would have called for the new retention process to begin several years down the road or lawmakers would have included it a package of constitutional changes considered by a commission with public hearings, etc. They did neither.
That’s because this proposal wasn’t about reforming the process of selecting members of the appellate courts, it was about keeping a majority on the highest court.
If the decision stands and the hastily passed retention scheme is ruled out, there will be at least a true election for control of the court, as true it can be with the massive amounts of special interest money that increasingly controls our judicial elections.
The same state lawmakers who are now allegedly concerned about the nature of judicial elections repealed public financing for judicial candidates a few years ago, increasing the role of big special interest money in the selection of judges.
But at least other candidates for the court will be able to run in this unpredictable election year. Thanks to the three-judge panel, there is still a shred of democracy left—and that’s what the folks currently in power are afraid of.