[Editor’s note: Just two days after hearing arguments in this case, the Court of Appeals panel indicated that it would rule for the plaintiffs  and strike down the judicial retention scheme. This article, however, continues to provide invaluable background on the case and the arguments of the competing sides.]
Only one state Supreme Court seat is up for grabs this November, that of current justice Robert Edmunds, and in what has traditionally been a hotly contested election, Edmunds will run unopposed.
That’s not due to a lack of challengers though.
Edmunds will run against his own record as a result of a change  to Supreme Court elections made by lawmakers this past fall, replacing the traditional race between two candidates with an up-or-down vote for sitting justices.
The effect of this retention voting is to take choice between candidates away from voters — unless a justice is voted out, in which case the governor appoints a replacement who serves for two years and then must run in a contested election.
Now one likely challenger to Edmunds, attorney Sabra Faires, is asking a three-judge panel in Wake County to throw out the new law, arguing that the switch from contested elections to up-or-down votes for Supreme Court slots was a change that required a voter-approved amendment to the state constitution – something that did not happen.
Faires and two Wake County voters who have joined her in the lawsuit will face off against the state Board of Elections in court Tuesday morning, hoping to persuade superior court judges Anna Mills Wagoner, Lisa Bell, and Ben Alford that she should be allowed to file and run for the Supreme Court in November.
Faires argues that the new election process does not satisfy the state constitutional requirement that justices be “elected” by qualified voters — pointing out that when the constitution uses the term “election” it refers to contests between candidates and when it uses the term “referendum” it refers to “for or against” ballots.
“If a retention election satisfies the constitutional requirement of an election for this one office, such a referendum could be used for all other offices for which the constitution by the same language requires election – governor [for example], or attorney general,” her attorney Michael Crowell notes in papers filed with the court.
If the up-or-down vote for justice does constitute an “election,“ Faires adds, state lawmakers still violated the constitution by adding an additional qualification for the office – namely, that a candidate must be a sitting justice.
In response, the Board of Elections argues that Faires lacks standing to challenge the law because she has no constitutional right to run for the Supreme Court and that the new law does not add a new qualification for that slot – noting that candidates in the open election that would follow if the incumbent loses in the retention cycle would not have to be sitting justices.
Support for retention voting as a solution to increasingly politicized judicial elections has existed on both sides of the legislative aisle for years.
As Faires points out in her court filing, over the past 50 years more than 30 bills calling for a switch from contested elections to a retention model have been introduced in the General Assembly, and nearly all recognized the need for a constitutional amendment to effect that change.
That recognition for a constitutional amendment persisted in debate on the bill last session.
In fact, according to the conservative Carolina Journal , House Speaker Pro Tem Paul “Skip” Stam challenged the proposed process of switching to retention voting in a memo circulated among his colleagues, in which he made the same arguments that Faires makes in her lawsuit – namely, that retention was tantamount to a referendum that required a voter-approved amendment to the state constitution.
(Stam ultimately abstained from voting on the final bill.)
And in each of the other nineteen states that use retention voting for some or all judges, the state constitution expressly provides for that retention referendum, Faires adds.
What changed then this past session that pushed lawmakers to overlook a previously acknowledged constitutional process and push a retention voting bill with an immediate effective date through to passage?
One possible answer is that by eliminating any challenge to conservative Justice Edmunds, lawmakers could help preserve conservative control on the state’s high court for years to come.
Votes along the way fuel the suspicion that the rush to passage was in fact politically motivated.
Party lines dictated both the fate of a senate amendment to change the effective date of the bill to July 2017, after the Edmunds race (it failed), and the outcome of the final vote on the bill – which was approved by Republican majorities in both houses.
How the judges rule after Tuesday’s argument could lead ultimately to an interesting predicament for the justices on the Supreme Court.
Because Faires challenged the retention law as unconstitutional on its face, a finding in her favor would send any appeal directly to the Supreme Court.
(Conversely, a finding that the law is in fact constitutional sends an appeal to the Court of Appeals first.)
At the Supreme Court, each of the justices would arguably have an interest in the outcome and would have to disqualify themselves from hearing the case.
In a similar situation in Tennessee, the governor there had to appoint a special supreme court to hear a challenge to that state’s retention voting law.
The hearing in Faires v. State Board of Elections will be held at 1:00 p.m., Tuesday, February 16, at the Court of Appeals.