Publisher's note: The author of this post is Barry Smith, who is an associate editor for the Carolina Journal, John Hood Publisher.
An attorney and two Wake County voters have filed a lawsuit challenging the state's new law calling for retention referendums for justices of the N.C. Supreme Court, claiming that the referendum, passed this year by the General Assembly, does not meet the definition of an election specified in the state constitution.
The attorney, Sabra Faires, who is registered unaffiliated, unsuccessfully ran in 2014 for a seat on the N.C. Court of Appeals. She has been an assistant secretary in the N.C. Department of Revenue, worked on the staffs of both the Democratic and Republican parties in the General Assembly, and worked in the Office of Administrative Hearings and the Rules Review Commission.
The two Wake County voters are Bennett Little Cotton and Diane Lahti. Both are registered Democrats.
The complaint challenging the new law's constitutionality states that Faires would like to file as a candidate for the Supreme Court justice seat currently held by Justice Bob Edmunds, but cannot do so because of the new law.
Edmunds has filed for another eight-year term on the state's highest court. That notice triggers a retention referendum. Based on the new law, he will be the only candidate eligible to run. Edmunds is a Republican, although elections for judicial races are held on a nonpartisan basis.
Under the new law, incumbent Supreme Court justices who have won their seats in an election and whose terms are ending can file a notice of intent with the State Board of Elections to seek another term, triggering the retention process.
The 2016 general election ballot for the Supreme Court seat simply will list Edmunds' name and ask voters to vote "for" or "against" him. If a majority of those casting ballots votes for Edmunds, he would win another term. If a majority votes against him, he would leave the court at the end of the year and the governor would appoint a successor. A competitive election for a justice to serve a full eight-year term would occur at the next general election - in this case, November 2018.
The complaint says that a retention referendum does not meet the constitutional muster for an election and violates the state constitution.
"The [N.C.] Constitution requires an election in which opposing candidates may run for the office,"
the complaint says. A referendum listing only one candidate fails that test, the complaint adds.
Rep. Leo Daughtry, R-Johnston, one of the sponsors of the new law, says the new law does pass the constitutional test.
"There's a case in Tennessee that's right on point, that says it's an election,"
Daughtry said. "The court in Tennessee said that a retention election is an election."
The lawsuit also says that Faires meets the constitutional qualifications to seek the office, but the new law adds an unconstitutional qualification, allowing only an incumbent to run in a retention referendum.
"She is not being shut out,"
Daughtry said of Faires. "She has to wait her turn."
The complaint also says that the new law denies the voters the right to vote on justices for the N.C. Supreme Court.
Daughtry said he favored retention elections because they should remove some politics from the process of choosing judges.
"If you have a lot of politics in the judiciary, I think justice suffers,"
Daughtry said. He said most people have little information about people running for judicial offices. "I think this is a better way, in my opinion, to have a judicial election - by retention,"
The lawsuit was filed in Wake County. State law requires the chief justice of the N.C. Supreme Court to appoint a three-judge panel of Superior Court judges to hear such cases.
The plaintiffs are asking the court to declare the retention law unconstitutional, order the State Board of Elections to conduct an election for the seat Edmunds holds, and award plaintiffs attorneys fees.