State Files Response to Retention Election Lawsuit

We’ve been covering the retention election lawsuit since its initial filing in Wake County Superior Court, and have even taken the position that the plaintiffs likely have the better of the argument. The case presents the question of whether North Carolina Session Law 2015-66 violates the North Carolina Constitution by (1) unconstitutionally altering the way in which NC Supreme Court Justices are elected and/or (2) unconstitutionally adding a condition to being a North Carolina Supreme Court Justice.

Today, the office of Attorney General Roy Cooper filed its response on behalf of the State of North Carolina. The State’s argument begins — as do most defenses to constitutional challenges — with a claim that the plaintiffs lack standing:

Plaintiff Faires lacks standing because there is no constitutional right to run for a particular office. Penny v. Salmon, 217 N.C. 276, 7 S.E.2d 559 (1940). Plaintiffs Cotton and Lahti lack standing because there is no constitutional right to vote for a particular candidate. State ex rel. Martin v. Preston, 325 N.C. 438, 3 85 S.E.2d 4 73 (1989). In addition, there is no property right to either be a candidate for election to a specific office or to vote for a particular office. Penny, 217 N.C. at 279, 7 S.E.2d at 561; Mial v. Ellington, 134 N.C. 131, 149, 46 S.E. 961, 967 (1903). Because the right to hold office is not a property right, there is no vested right to prevent the General Assembly from modifying it as public policy necessitates. Penny, 217 N.C. at 279, 7 S.E.2d at 561.

Even if there were a property right to either become a candidate for office or vote for a particular candidate, plaintiffs have failed to allege any way in which they have suffered a constitutional deprivation. Disappointment does not equate to being legally aggrieved. Penny, 217 N.C. 276, 7 S.E.2d 559.

The State then points out that facial challenges to constitutional provisions are a steep uphill battle. This is because courts must presume that laws are constitutional unless they are shown to be unconstitutional beyond a reasonable doubt. This rule of construction keeps the courts out of the business of de facto legislating, restricting them to a role of only striking down the most clear of constitutional violations. However, the Plaintiffs have already argued that even given this high standard, the law is facially unconstitutional:

The retention referendum in which the incumbent is the only person in the state who may be a candidate for the supreme court in 2016 defies the plain sense meaning of Article IV, § 16 of the State Constitution that justices “shall be elected’; contradicts the history of the constitution; ignores the legal conclusion reached by every proponent of retention voting for more than half a century; and would leave North Carolina alone as the only state acting without constitutional authority.

The State also argues that the plaintiffs mischaracterize the new retention elections by calling them “retention referenda,” and that the law does not unconstitutionally add an additional qualification for office — that being, in the view of the plaintiffs, incumbency.

You can read the full brief of the plaintiffs here, and that of the State here. A three-judge panel of Wake County Superior Court will hear the case in the Court of Appeals courtroom at 9:30 a.m. on February 16th.