Guest Opinion: Plaintiff in unaffiliated voter case helped close door on Supreme Court retention elections

Published 3:21 pm Monday, November 7, 2022

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By Mitch Kokai, Carolina Journal

There’s at least one connection between an ongoing lawsuit to place unaffiliated voters on the N.C. State Board of Elections and this year’s N.C. Supreme Court campaign. A plaintiff in the unaffiliated voters case once waged a successful legal battle against state Supreme Court retention elections.

Because of that legal battle, North Carolina could end up voting out a fifth incumbent Supreme Court justice in the last four election cycles.

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Sabra Faires’ name appears last among the list of six plaintiffs in Common Cause v. Moore. That’s the federal lawsuit filed this year that aims to give unaffiliated voters access to service on the state elections board. State legislative leaders filed paperwork on Oct. 14 asking U.S. District Judge William Osteen to dismiss the suit.

Six years ago, Faires played a major role in another election-related dispute. She served as lead plaintiff in a lawsuit against the state elections board. In that case, Faires helped challenge a statute that would have allowed Supreme Court justices to face retention elections, rather than face opponents in a traditional election contest.

Had that law taken effect, it’s likely that current Supreme Court Justice Sam “Jimmy” Ervin IV would not face a challenge today from Trey Allen, legal counsel for the state Administrative Office of the Courts. The latest Civitas Poll released Oct. 25 shows Allen leading Ervin by seven percentage points among likely voters.

Session Law 2015-66 resulted from legislative debate during the last decade about the best way to select North Carolina’s judges. Republicans who ran the General Assembly in 2015 wanted to restore party labels to judicial elections. But they also wanted to set incumbent Supreme Court justices apart from the partisan political process.

Lawmakers voted to give incumbent justices the opportunity to run for re-election on the basis of their judicial records, not a political campaign.

The law created new retention elections for Supreme Court seats. An incumbent would ask voters to grant him a new eight-year term. If the incumbent lost, his seat would become vacant and the governor would appoint a replacement. That replacement would run in a contested election two years later.

Faires and other critics challenged the retention election law in state court. They convinced a unanimous three-judge panel that the law violated four sections of the N.C. Constitution. Trial judges ruled that a retention election did not qualify as an “election” as described in Article IV, Section 16. The law violated Article IV, Section 22 and Article VI, Sections 6 and 8 because it added incumbency to the list of qualifications for Supreme Court candidates.

Retention election supporters appealed to the state’s highest court. The case created surprising coalitions. A friend-of-the-court brief against retention elections united the left-of-center American Civil Liberties Union and right-of-center Civitas Institute, now merged with the John Locke Foundation.

Justice Robert Edmunds was the only member of the court slated to face re-election in 2016. He recused himself from the case. The other six justices, three Republicans and three Democrats, deadlocked. So the trial court panel’s ruling remained intact.

Edmunds, a Republican, ended up running in a traditional election in 2016. He emerged from a four-way nonpartisan primary race with a Democratic challenger. (Faires finished a distant third in the primary with 12% support.) Edmunds lost in November in the last N.C. Supreme Court race conducted without party labels on the ballot.

Two years later, Republican incumbent Barbara Jackson lost her re-election bid as well. Due to a quirk unique to the 2018 election cycle, Jackson ran in the November general election against both a fellow Republican and a Democrat.

Voters next turned out two Democratic incumbents in 2020, though circumstances were different that year. Both Chief Justice Cheri Beasley and Justice Marc Davis had been appointed to their positions. They would have faced contested races regardless of the retention law’s provisions.

Having been elected in 2014, Ervin would have been a candidate for a retention election this year under provisions of the rejected 2015 law. The state Supreme Court’s ruling in Faires v. State Board of Elections did not indicate how the justices had voted in their 3-3 deadlock. It’s not clear whether Ervin voted in 2016 for or against the statute that would have helped him run this year without opposition.

In 2016, Faires’ legal victory helped set the stage for a Republican Supreme Court justice’s defeat. Six years later, a Democratic justice might pay a political price because of that same litigation.

It’s an interesting factor to keep in mind as Faires takes part in another lawsuit challenging state election rules. Those suits can produce long-term consequences that are not always predictable.

Mitch Kokai is senior political analyst for the John Locke Foundation.