Backers See New Retention Election As A Step Toward Judicial Selection Reform


By Amber Nimocks 

North Carolinians voting for a Supreme Court justice this November will see just one name on the ballot but they will still have a choice to make: Keep Associate Justice Robert H. Edmunds Jr., the sitting justice whose name will appear, or open the seat up for a replacement to be appointed by the governor.

Edmunds will be the first North Carolina Supreme Court justice to sit for a retention election under a new law passed last year. Proponents of the law hope it will deflate campaign spending levels in Supreme Court races, which have ballooned in recent years, and push the state toward a new system of judicial selection.

Edmunds, who first won election to the Supreme Court in 2000, said he views his task in the run-up to the November ballot as two-fold: to make a case to voters for continuing his tenure on the court and to help voters understand the new process for choosing justices. He says he has spent much of his time in recent months speaking to groups about the new electoral process rather than focusing on the more political issues a public official seeking re-election might do.

“What I’ve been doing since the bill passed is educating,” Edmunds said. “I’ve been speaking to Rotary groups, Civitan clubs. I’ve been going to events you can describe as not really political. … It’s news to most of them.”

The new law calls for Supreme Court justices who have been popularly elected to stand for a retention election at the end of each eight-year term. If voters choose to remove the justice from office, the governor will appoint an interim for a two-year term. Justices appointed to fulfill a vacant seat and those seeking to fill a seat left vacant must seek popular election by ballot.

Edmunds said the groups he has met with have been interested to learn how this process compares to the way other states choose their judges and justices.

“They want to know more about how retention elections work,” Edmunds said.

Retention elections are far from rare. Nineteen other states employ merit retention elections for sitting Supreme Court justices and/or Court of Appeals judges. In some cases, the retention election follows the first term after the justice is popularly elected, as is now the case for Supreme Court justices in North Carolina. In other states, justices and judges are first chosen by the governor and then face retention elections after their first term. (The American Judicature Society’s offers a map detailing the judicial selection process state-by-state.)

A National Issue

The new law has its detractors. In a lawsuit filed in Wake County Superior Court in December, attorney Sabra Faires, a North Carolina Bar Association member, and two North Carolina voters, claim that the law violates the state constitution. A three-judge panel heard arguments in the case on Feb. 16. The suit argues that a retention election is a referendum, and as such, requires a change of the state constitution, which calls for justices to be chosen by election.

Despite education efforts, it’s likely that many voters will miss or misunderstand the Supreme Court question facing them this fall, given that splashier contests for president, governor and other up-ballot offices are poised to soak up most of the most attention. If a decline in attention corresponds to a decline in campaign spending, that will suit supporters of the change. The last round of Supreme Court races in North Carolina in 2014 saw candidates in the four contested elections spend a record $6 million combined, according to a report from The Brennan Center for Justice at NYU School of Law, a nonpartisan law and policy institute.

North Carolina is not alone when it comes to escalating campaign spending on statewide judicial races or in grappling with how to deal with it. According to the Brennan Center, campaign fundraising in state judicial races more than doubled in the first decade of the century, from $83.3 million in 1990–1999 to $206.9 million in 2000-2009. The most expensive state Supreme Court races ever were run last year in Pennsylvania, where candidates in three races spent a combined $16.5 million in 2015, according to Justice At Stake, a judicial watchdog group.

Observers of the process point to the 2010 U.S. Supreme Court decision in Citizens United, which loosened federal restrictions on campaign spending by political action committees, as a factor in the rise of fundraising on the state level. Escalating spending is one reason the North Carolina Bar Association supported a change to the law last summer.

“When Citizens United was decided, it really just changed the landscape for the judicial elections,” said Kim Crouch, director of governmental affairs for the NCBA.

Crouch said the NCBA has supported some form of judicial selection reform for more than 40 years. The Bar Association’s current stance advocates switching from a system of elected judges to gubernatorial appointment and confirmation or retention elections of Court of Appeals judges and Supreme Court justices.

Such a change would require passage of a constitutional amendment, a much greater political undertaking than changing just the Supreme Court elections as did the law passed this summer. Legislative efforts to change judicial selection in the state have failed on six different occasions since 1999.

“We’ve always had a hiccup going very far with that,” Crouch said.

She said supporting this summer’s legislation represented a realistic opportunity for change, and smaller steps toward the larger goal are steps in the right direction.

“Let’s try to take a couple of small bites of the apple,” Crouch said. “If there’s judicial appetite for small change, let’s tackle that.”

Outside Money

In prior decades, retention elections of state judges nationwide typically drew much less money than contested partisan and non-partisan elections did. In the period 2000-2009, retention elections accounted for about 1 percent of total campaign funds raised. That has changed in more recent election cycles. According to a Brennan Center report, average per-seat spending in retention elections in the years 2009-2014 reflects a tenfold increase from the average over the previous eight years.

Even though his will be the only name voters see, Edmunds says he isn’t campaigning for his seat any less vigorously than if he were facing a named challenger. He will still be filling out voter guide surveys, visiting editorial boards and making a case for his judicial record.

“I’ve been in a number of judicial elections and I’m happy to say I’ve won them all,” he said.

Every one of North Carolina’s sitting justices has won election during his or her career. Exemption from participating in future contested races might come as a welcome reprieve for justices from the excited tenor of 21st-century judicial campaigns.

“There is a sense it does insulate us from some of the more raw aspects of politicking,” Edmunds said.

Supporters of judicial selection reform hope that a move away from campaign fundraising will provide judges with greater political distance from attorneys who may appear before them and from political action committees, two of the most vigorous categories of campaign donors. It’s hoped that such a change would bolster public confidence in the impartiality of the justice system and entice to the judiciary more qualified attorneys who would otherwise be turned off by the politics of the process.

Edmunds said many of the groups he has spoken with have asked him how we will know if the new electoral process is a success.

“I know how I’ll define it,” he said with a laugh. “But in the larger sense, people will look to see if there’s outside money coming in in significant amounts.”

Amber Nimocks is assistant communications director at the North Carolina Bar Association.

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