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Patrick Gannon: Did you miss the ‘retention election’ decision?

RALEIGH — Compared to Donald Trump, unconstitutionally drawn congressional districts and new voter ID laws, another election-related controversy in North Carolina has received relatively little attention.

Nevertheless, a three-judge panel of Superior Court judges —  Anna Mills Wagoner, Lisa Bell and Benjamin Alford — made a sensible decision late last month in declaring unconstitutional and void the 2015 state law allowing “retention elections” for N.C. Supreme Court justices.

Last year, the Republican-led General Assembly passed legislation allowing sitting justices, when their eight-year terms are up, to run in retention referendums. That means voters would not decide between candidates, but instead determine whether the sitting justice deserves to stay or get booted off the court in favor of a political appointee.

On their ballots, voters would decide “for” or “against” retention.

The seat held by conservative Justice Robert Edmunds is the only Supreme Court seat up for grabs this November, and with the new law in place, he decided to run in a retention referendum.

But the three-judge panel struck down the law, thus prohibiting retention referendums — at least for now. An appeal by the state to the state Supreme Court is likely.

The panel, in a brief order, ruled that retention referendums violate the N.C. Constitution because they are not elections as required by the state Constitution. The Constitution consistently uses the word “election” to refer to contests between opposing candidates. Also, there are plenty of other instances in which the Constitution mentions other types of ballot propositions, such as for/against votes on bonds and constitutional amendments. It doesn’t call them “elections.”

That was at the heart of the challenge to the law by Sabra Faires, a Wake County attorney who wants to run for Edmunds’ seat.

She wasn’t arguing for or against retention referendums as a method of choosing justices. Some other states do it, and there are pros and cons of each system of electing judges.

Instead, Faires was arguing that the only way the state can adopt a retention referendum process is through a constitutional amendment.

In court filings, Faires and other plaintiffs argued that if a retention referendum satisfies the constitutional requirement of an election for Supreme Court justice, such referendums could be used for all other offices for which the constitution requires an “election” — governor, attorney general, agriculture commissioner, state senator, sheriff and so on.

Think about that for a second.

“It is hard to imagine a result more destructive of the democratic framework of North Carolina government,” the plaintiffs argued.

The three-judge panel also ruled that the law violates the Constitution because it adds another qualification for Supreme Court justices — that candidates must be incumbent justices. The Constitution lays out the qualifications for justice and other offices, and that’s not one of them.

Sponsors of the bill said the motivation behind it is to help control increasingly expensive judicial elections.

During legislative debate last year, Sen. Josh Stein, a Raleigh Democrat, said the immediate impact of the bill would be to protect a single Republican incumbent, Edmunds.

“It should be called the Justice Bob Edmunds Protection Act,” Stein said.

As a result of the court’s decision, the state is expected to approve a new candidate filing period for candidates seeking the Edmunds seat. If more than two candidates sign up, a primary would be held — likely in June — and the top two vote-getters would appear on the November ballot.

We haven’t heard the last of retention referendums in North Carolina — from legal or legislative standpoints. They’ve been debated for a long time and that will continue.

For now, it’s just another cause for confusion for voters and candidates.

Patrick Gannon is editor of the Insider State Government News Service in Raleigh. Reach him at pgannon@ncinsider.com.



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