By Jen Wolfe, ACLU-NC Legal Fellow
This month the North Carolina Supreme Court will hear arguments that ask whether a change to the election process for state Supreme Court justices is constitutional. Last year the North Carolina General Assembly passed a law that would replace contested elections of incumbent Supreme Court justices with a “FOR/AGAINST” retention referendum, in which the incumbent justice runs unopposed. The law was set to take effect this election cycle.
While legislators have known and recognized for decades that a constitutional amendment is necessary to change the method for selecting Supreme Court justices, in the past legislators have been unable to garner the three-fifths vote needed in both houses to put a constitutional amendment on the ballot. In 2015 the legislature passed this bill into law without seeking a constitutional amendment.
A lawsuit has challenged the constitutionality of this law, arguing a retention referendum is not an election under the North Carolina Constitution, which requires Supreme Court justices “be elected.” The lawsuit does not question the wisdom of retention referendums, but it argues that a retention referendum for Supreme Court justices is unconstitutional absent a constitutional amendment. A three-judge panel agreed and declared the law unconstitutional. The State Board of Elections has appealed the decision to the North Carolina Supreme Court. Arguments in the case are scheduled for April 13.
To protect constitutional safeguards to the electoral process and guard the public's confidence in judicial elections, the ACLU-NC joined with Civitas Institute, Center for Law and Freedom to file a friend-of-the-court brief opposing the North Carolina law and asking the Court to declare the law unconstitutional. As we explain in the amici brief, if Supreme Court justices may be elected by “FOR/AGAINST” referendum without a constitutional amendment, then so may every other public officer named in the Constitution, including Governor, Attorney General and Secretary of State.
Read the ACLU-NC's brief in Faires, et. al. v. State Board of Elections, et. al. here.