Guest Editorial: Judges shouldn’t take seats without winning clear majority of votes

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Last week's brief legislative session delivered one of the strangest election changes yet. Gov. Roy Cooper wisely vetoed the measure Monday.

Senate Bill 656, the "Electoral Freedom Act of 2017," would eliminate primaries in next year's judicial elections.

That's incredibly odd because the legislature has made all judicial elections partisan. In other partisan elections, primaries are held whenever two or more candidates of the same party file to run. In that way, each party is represented by just one candidate on the November ballot.

So why did lawmakers do away with that practice just for judicial elections, and also push back the filing period from February to June? Supposedly to give more time for judges to learn possible new districts. The House last week also approved a bill to redistrict the Superior and District courts. The Senate didn't act on that measure.

The story didn't wash because primaries were also eliminated for Supreme Court and Court of Appeals elections. Those judges run statewide, not in districts.

So, if this provision were enacted, here's what could happen in next year's lone Supreme Court race, in which Justice Barbara Jackson is expected to defend her seat: A mob of candidates could file to run. This happened in 2004, when a vacancy led to a special election where the normal rules didn't apply.

Eight candidates ran in a shortened campaign. Since there was no primary, all eight were listed on the ballot in November. There was no requirement for the winner to receive a majority of votes, and no runoff.

Paul Newby ended up winning with just 23 percent of the vote.

Newby won fairly and has served with integrity. He won in a regular election in 2012. But 23 percent is not an endorsement for an eight-year term in such an exalted position.

Next year's race could draw even more than eight candidates and yield a winner with even less than 23 percent of the vote under the rules the legislature hastily set up last week. The measure was inserted into a larger bill and given little debate.

For the most part, the bill was approved along party lines in both chambers. Rep. John Blust of Greensboro, a lawyer, was one of only two Republican House members to vote no.

Some observers think the real reason for this change is to create additional time for legislative leaders to propose a system for appointing judges rather than electing them. Cooper thinks so.

"This legislation abolishes a scheduled election and takes away the right of the people to vote for the judges of their choice," he said Monday. "It is the first step toward a constitutional amendment that will rig the system so that the legislature picks everybody's judges in every district instead of letting the people vote for the judges they want."

The governor has gotten ahead of himself, because approving a constitutional amendment to eliminate judicial elections requires a statewide referendum. But he may have correctly identified the legislature's ultimate objective.

In 2015, it approved a bill, signed by then-Gov. Pat McCrory, to allow a "retention election" for then-Justice Robert Edmunds, whose seat was up for election in 2016. That would have meant no one could run against him; the voters would simply say whether or not to give him a new term. If they said no, the governor would appoint a replacement.

A panel of judges said that move was not permissible under the state constitution, which calls for real elections. The Supreme Court, with Edmunds recusing himself, deadlocked 3-3, leaving in place the lower court ruling.

Edmunds lost the 2016 election to Michael Morgan. Possibly, the court could take up the case again and rule in favor of retention elections. Or the voters could OK a constitutional change.

Cooper's veto, however, stalls Republican plans. The veto should stand, because a Supreme Court seat shouldn't be won with just 23 percent of the vote.