Today, the North Carolina Supreme Court ruled that a 2015 law changing the method by which Supreme Court Justices are elected is unconstitutional. That 2015 law stated:
A justice of the Supreme Court who was elected to that office by vote of the voters who desires to continue in office shall be subject to approval by the qualified voters of the whole State in a retention election at the general election immediately proceeding the expiration of the elected term. Approval shall be by a majority of votes cast on the issue of the justice’s retention in accordance with this Article.
The question for the Court was whether a “retention election” satisfies the requirement of the North Carolina Constitution that Supreme Court Justices be “elected.” Specifically, the Constitution provides:
“Justices of the Supreme Court … shall be elected by the qualified voters and shall hold office for terms of eight years and until their successors are elected and qualified. Justices of the Supreme Court … shall be elected by the qualified voters of the state.”
In February, a three-judge panel heard arguments on the issue in compliance with a North Carolina law requiring that challenges to a law’s facial constitutionality be heard by such panels, the decisions of which are appealable directly to the North Carolina Supreme Court. That panel found the law unconstitutional, and the State appealed to the North Carolina Supreme Court. Justice Edmunds, the only Justice directly affected by the law this election cycle, recused himself from the case. That left only six Justices to consider the case. In addition to the briefs and oral argument of the parties, the Justices had before them the joint amicus brief of the Civitas Institute Center for Law and Freedom and the ACLU of North Carolina, in which we argued that retention elections are unconstitutional.
Today, the Supreme Court issued its opinion. In a split 3-3 per curiam opinion, the Court upheld the lower court’s decision — meaning that retention elections are unconstitutional. However, the 3-3 decision did not come with written opinions, and is of no precedential value. The entire opinion reads as follows:
Justice EDMUNDS took no part in the consideration or decision of this case. The remaining members of the Court are equally divided, with three members voting to affirm and three members voting to reverse the judgment of the three-judge panel of the Superior Court, Wake County. Accordingly, the judgment of the three-judge panel of the Superior Court, Wake County is left undisturbed and stands without precedential value. See, e.g., State v. Long, 365 N.C. 5, 705 S.E.2d 735 (2011) (per curiam); State v. Greene, 298 N.C. 268, 258 S.E.2d 71 (1979) (per curiam).
The Supreme Court’s opinion ends the case.