Are you familiar with “retention elections”?
You better be, because you’re going to see them on your ballot this November.
(Well, maybe.)
They’re hearing arguments in court Tuesday in a lawsuit challenging a new state law that establishes “retention elections,” allowing judges to avoid facing challengers when they’re up for re-election.
The law in question passed last year. According to the law, when a judge is up for re-election in North Carolina, first the voters go to the polls and vote yes or no on whether the judge should stay in office. That’s called a “retention election.” If voters say yes, the judge is re-elected to a new term and never has to face an opponent. If voters say no, then the judge leaves office, the governor appoints a replacement, and then there’s an open election two years later.
The question now is: was the General Assembly acting within its authority when it passed that law…or did that change require an amendment to the state constitution, which voters would have had to approve?
It all has to do with semantics. What the lawsuit is claiming (among other things) is that a yes-or-no vote is not technically considered an “election,” but rather a “referendum”… and if the GA wants to take judicial elections and turn them into referendums, they have to amend the state’s constitution to do that.
(Isn’t the law fun?)
It’s a three-judge panel in Wake County that’s hearing the case. The lawsuit was filed by an attorney (Sabra Faires) who wants to run against State Supreme Court justice Robert Edmunds this fall. As the law currently stands, voters will only be able to vote yes or no on Edmunds instead, with no other candidates on the ballot.
Get more details on the lawsuit, from NC Policy Watch.
North Carolina is not the only state that holds “retention elections” for judges – nineteen other states do the same thing. (California’s done it since 1934.) The lawsuit notes, though, that each of those other nineteen states did write the new procedure into their state constitutions.
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Legal considerations aside, are “retention elections” a good idea? Here are some relevant points:
1) The law was passed on party lines, with Republicans in favor and Democrats opposed…
2) …and especially since the State Supreme Court is majority-Republican, you can safely assume GOP legislators passed the bill primarily to make it harder to unseat sitting judges. (Edmunds is a Republican.)
3) But the idea of retention elections has drawn support across the country from Republicans and Democrats alike – it’s not just a GOP thing…
4) …and generally speaking, the idea of “retention elections” has been raised as a way to check the explosion of big money into judicial elections. This has become a serious issue in recent years – as evidenced just two years ago here in North Carolina. (States that have switched to “retention elections” have generally found that it’s tempered the influence of big money – though occasionally there are exceptions.)
5) Nor is it necessarily the case that a “retention election” would make it easier on an incumbent judge. Think about Hillary Clinton: if you were to ask Americans “should Hillary Clinton be president?” a majority would probably say no. But if you were to ask “should Hillary Clinton be president, or should it be Donald Trump?”, you’d probably see Clinton’s vote share go up. With a few exceptions (Mark Kleinschmidt, e.g.), incumbents usually outpoll their popularity rating in elections, because there’s always that small percentage of voters who don’t like the incumbent but like the challenger even less. It’s the first rule of logic: you’re more likely to say “I don’t want Robert Edmunds on the Supreme Court” than you are to say “I don’t want Robert Edmunds on the Supreme Court and I do want Sabra Faires there.” So retention elections may not be easier on the incumbent after all – it depends on the circumstances. (Historically, though, retention elections do tend to protect sitting judges. According to Ballotpedia, it’s rare – though certainly not unheard of – for a judge to lose a retention election. On the other hand, it’s also pretty rare for incumbents to lose elections in any case.)
6) While we’re on the subject, we also ought to be asking ourselves if judges should even be elected at all. On the federal level, judges are not elected, and the framers of the U.S. Constitution set it up that way for a reason. As Alexander Hamilton wrote in Federalist 78, the law is the law, and it ought to be enforced and interpreted as it’s written. Judges ought to be independent, not subject to the whims of public opinion – and public opinion shouldn’t dictate how the law is enforced.
(Gosh, I sound like a conservative strict constructionist there, don’t I? Well, just in case you were ever in doubt about how insincere and hypocritical our politicians are, you ought to know that there’s one presidential candidate who thinks the law should be subject to the whims of public opinion, who actually has proposed elections for Supreme Court justices…and naturally it’s the one guy who’s running around right now yelling the loudest about how big of a “strict constructionist” he is and how the Constitution is timeless and unchanging and how personal opinion shouldn’t matter. Ted Cruz.)
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Of course none of that has anything to do with the question before the court this week – the judges aren’t deciding whether retention elections are a good idea, they’re only deciding whether the GA acted within its authority.
But as Sharon McCloskey at NC Policy Watch observes, things could really get exciting if the judges strike down the law. If that should happen, the state would appeal – and the appeal would go up to the State Supreme Court, where all the judges are directly affected by the law in question. It’s an obvious conflict of interest – so it’ll be interesting to see what happens then. (McCloskey says when the same thing happened in Tennessee, the governor “had to appoint a special supreme court” just to hear that one case.)
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