After a five-year exercise in seeking to put a lasting stamp on North Carolina government and policy, the General Assembly’s majority Republicans have provoked a parade of lawsuits challenging a number of their moves.
It may be that most of those lawsuits will play out in the federal courts. But the state courts are bound to have an important role.
Just as an example, a challenge to the state’s congressional district boundaries, asserting that the districts were wrongfully gerrymandered to disadvantage African-American citizens and to help Republican candidates, went before a panel of federal judges. Those judges sent legislators back to their computerized drawing boards, where in mid-February they put together a new district map.
A similar lawsuit, when it was taken up by the state Supreme Court, failed to get traction – twice. It escaped no one’s notice that the state’s high court is made up of four Republican justices and three Democrats. The legislature wants to preserve that edge.
A dramatic change in the state’s method of filling seats on the Supreme Court wasn’t publicly advertised as a way to shore up the Republicans’ 4-3 margin. It was touted as an antidote to the escalating amounts of money being poured into court candidates’ campaigns. Whether it would actually advance that worthy goal is an open question. But the likely benefits to a legislature that hopes a friendly court will green-light controversial laws are clear.
Ironically, the change – substituting “retention elections” for the traditional face-off between candidates when an incumbent wants to stay in office – now itself has come under a legal cloud. In a twist that verges on farce, the Supreme Court could end up being asked to rule on the constitutionality of the method by which its own members are chosen.
Recusals would be in order, one would think, but then who would make the call? Apparently there’s a precedent from elsewhere by which a special panel could be appointed for the task – appointed by the governor, Republican Pat McCrory. No Democrats need bother to apply.
Better than whom?
In a retention election, as set forth in a law enacted last June, voters would decide whether or not a sitting justice who had served a full eight-year term should remain on the job.
Justice Bob Edmunds, a Republican, is the only court member whose term is set to expire this year, and he wants to keep his post. So he’d be the only justice facing a retention election this fall. By the normal political calculus – Edmunds is a court veteran with ample qualifications, and it’s hard to beat someone with no one – his chances of avoiding a pink slip would have to rate as good.
But even if the roof fell in on Edmunds, McCrory would be able to appoint his successor. That would be the case even if McCrory himself lost his current re-election bid, because his term stretches a few days into 2017 and Edmunds’ term expires on Dec. 31. The upshot is that Republicans would be in an excellent position to maintain their court majority at least through the elections of 2018.
The switch to retention elections has been challenged by Raleigh attorney Sabra Faires, a Supreme Court hopeful whose resume includes work as a high-level legislative staffer under both Republicans and Democrats and as an official of the state Department of Revenue.
Faires says in her lawsuit that the current election scheme blocks her from running this year for the seat now held by Edmunds. She asks that it be invalidated because the state constitution requires judges to be elected in contests between opposing candidates, whereas a retention election amounts to a referendum. The constitution itself would have to be changed if the state were to adopt such a system, she and two fellow plaintiffs assert.
Following court system procedure for handling such constitutional challenges, Chief Justice Mark Martin appointed three Superior Court judges to consider the Faires lawsuit. Two days after a hearing on Feb. 16, attorneys on both sides were notified that the panel had decided in the plaintiffs’ favor. The Associated Press reported that the judges were preparing an order in which the retention election arrangement would be invalidated.
Friends on the bench
For conservatives, control of the state Supreme Court is an urgent matter – just as in Washington, Republican senators have vowed to block any nomination by President Obama to fill the seat left vacant by the death of conservative Justice Antonin Scalia.
Under intense political pressure, both courts have become increasingly split along ideological lines. And in North Carolina, those seeking to influence voters’ choices have spent larger and larger sums on campaign advertising. It’s a process ripe for abuse by vested interests with lots of money, and it risks putting people on the bench who are beholden to those interests.
In that sense, retention elections might represent progress. But if the legislature were serious about holding down the costs of judicial campaigns, it wouldn’t have scrapped North Carolina’s effective and popular system of public financing for appellate court races. Or it could call for switching to a system whereby the governor would appoint jurists who had been recommended on the basis of merit. States using retention elections more often couple them with merit selection and appointment.
For now, it appears legislators will have to prove to a higher court that they didn’t jump the constitutional traces if they want to stick to the retention election plan. They’re certain to try, since a conservative-leaning Supreme Court shapes up as a valuable ally.
Faires’ lawsuit doesn’t oppose retention elections on principle. But it seeks to call out the legislature for essentially gaming the system to help secure a pivotal Supreme Court seat.
Much is at stake as legislators try to extend the reach of their conservative agenda – an agenda that works against the interests of many North Carolinians as it keeps the public schools on short rations, shifts tax burdens away from the well-off, punishes the jobless, and lightens up on polluters. The state will be best served when legal challenges to this or any regime are reviewed by independent-minded, credible judges who owe no favors to anybody.