FAIRES V. STATE BOARD OF ELECTIONS
Motion for Leave to File Brief of Amici Curiae (March 31, 2016)
Order Allowing Amicus Brief (April 1, 2016)
Brief of Amici Curiae (March 31, 2016)
Order Setting Oral Argument (March 17, 2016)
The Civitas Institute Center for Law and Freedom (CLF) and the American Civil Liberties Union (ACLU) have filed a joint amicus brief asking the North Carolina Supreme Court to hold that uphold the North Carolina Constitution as the supreme law of our state. At issue is the constitutionality of recent changes to how justices are elected to the North Carolina Supreme Court. The case will not only require our courts to interpret laws in the ordinary sense, but also to weigh how much respect they give the words and meaning of our state’s most fundamental document.
In North Carolina, judges to our state’s highest appellate courts are elected rather than appointed. Reasonable people can disagree on whether this is sound policy. In many states appellate judges are appointed by the governor, rather than elected by the People. Policy questions aside, the mandate of the North Carolina Constitution is clear:
“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.”
During the most recent legislative session, the General Assembly enacted legislation purporting to “allow voters to elect, and then retain, justices of the North Carolina Supreme Court for election.” Specifically, the legislation states that:
“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.”
Layman’s translation: Incumbent justices on the North Carolina Supreme Court who want to keep their seats no longer have to face challengers in elections – they merely have to get the approval of a majority of voters. If they get majority approval, they stay in office. If the voters fail to approve the retention of a justice, the office is deemed “vacant” at the end of the term, and the vacancy is filled by a regular election. And importantly, this change was made via legislative enactment, not constitutional amendment. The Supreme Court will ultimately rule on whether the word “elected” in the North Carolina Constitution can include a “retention election,” or whether it requires a contested election.