Judicial Elections

The Judicial Branch of government in North Carolina is established as a co-equal branch of our
state government under Article IV of the State Constitution. North Carolinas court system,
called the General Court of Justice, is a unified statewide and state-operated system consisting
of three divisions: the Appellate Division, the Superior Court Division and the District Court
Division. The Appellate Division is composed of the Supreme Court and the Court of Appeals.
Over the years, the state legislature has changed the manner of certain judicial elections
between partisan and nonpartisan, depending on the prevailing mood of the times.

Democrats Changes
PRIOR TO 1996, elections of judges in North Carolina were conducted in a partisan manner.
That meant that all candidates for the judiciary must undergo a partisan primary and have their
party affiliation printed on the ballot in a General Election by the people.
IN 1996, the law governing the elections of Superior Court judges was amended to make those
elections nonpartisan: Senate Bill 41 / S.L. 1996-9es2 Nonpartisan Superior Court Elections;
1996 2nd Special Session; Sponsor: Senator Roy Cooper (D); Passed by a Democrat majority.
An earlier attempt was made to pass this measure during the 1995-1996 regular session where
it passed in the Senate but was referred to committee when on reaching the House: Senate Bill
961 Nonpartisan Judicial Elections; Sponsor: Senator Roy Cooper (D).
IN 1998, an attempt was made to change the state constitution to allow the governor to appoint
judges to the Court of Appeals and justices to the Supreme Court. This bill also contained a
provision to allow all appellate judges to stand for retention elections. The bill was stalled
immediately upon being introduced in the Senate: S
enate Bill 1258 Judicial Appointments/Voter
Retention; 1997-1998 Session; Sponsor: Odom, co-sponsor: Roy Cooper.
IN 2001, the law governing the elections of district court judges was amended to make those
elections nonpartisan: Senate Bill 119 / S.L. 2001-403 District Court Elections Nonpartisan;
Sponsor: Senator Walter Dalton (D); Passed by a Democrat majority.
IN 2002, the law governing the elections of appellate court judges was amended to make those
elections nonpartisan, effective for the 2004 elections: Senate Bill 1054 / S.L. 2002-158 Judicial
Campaign Reform Act; Sponsor: Representative Jim Gulley (R); Effective for the 2004 elections;
Passed by a Democrat majority.

As a result of these actions in recent years, all elections of judges for Superior Court, District
Court, and Appellate Court (including justices for the Supreme Court), were conducted in a
nonpartisan manner by 2004.

Republican Changes
IN 2013, a failed attempt was made to restore the partisan method for all judicial elections, but
the bill stagnated in committee: House Bill 65 Restore Partisan Judicial Elections (companion
bill: SB39); Sponsor: Representative Frank Iler (R); Status: referred to election committee.
IN 2015, lawmakers sought to modify election statutes again to make only the races for judges
of the Court of Appeals and justices of the Supreme Court partisan elections: H
ouse Bill 8 / S.L.
2015-292 Restore Partisan Statewide Judicial Elections; Sponsor: Representative Bert Jones
(R); Passed by a Republican majority
Some concerns were raised about restoring the partisan method for Supreme Court races
following the successful challenge of legislation (SB222 / S.L. 2015-66) that would have allowed
justices to stand for a retention election instead of a contested election. Under the law, if voters
did not support retaining a justice on the court for another term, other candidates could then file
to run for the seat.
After the original version of House Bill 8 passed in the House, it went to the Senate and was
modified in the Senate Rules Committee to remove the provision making the election of
candidates for justice of the Supreme Court partisan. A separate provision making the election
of candidates for judge of the Court of Appeals partisan survived in the Senate Committee
version.
House Bill 8 was then passed in the Senate and returned to the House for final concurrence. It
passed largely along party lines and was signed into law October 29, 2015. In its final version,
only the provision to elect judges to the Court of Appeals in partisan elections was restored.
State Supreme Court justices would still be selected in nonpartisan judicial elections by the
voters of North Carolina.

Supreme Court Election

The supreme court seat up for election in 2016 was Seat 2, the seat held at the time by
Associate Supreme Court Justice Robert H. Edmunds, Jr. Justice Edmunds would have run in
North Carolina's first retention election under a 2015 law. Therefore, no March 15 primary was
scheduled, because Edmunds was expected to stand for retention in November. However, a
Wake County court struck down the retention law as unconstitutional and the state supreme
court upheld that ruling, with Edmunds recusing himself in that decision. As a consequence,
Justice Edmunds would face a contested election for his seat in 2016.

In the July 2016 Nonpartisan Primary, Justice Edmunds (R) and opponent Judge Michael
Morgan (D) were the top two finishers for the open Supreme Court seat and would advance to
the General Election in November.
All races shown on ballots in 2016 were partisan, except some judicial races. The elections for
State Supreme Court, Superior Courts, and District Courts were nonpartisan races. Party
affiliation was not listed on the ballot and the ballot order for the names of candidates was
determined randomly by local county election boards under a rule established in 2001 (Senate
Bill 17 / S.L. 2001-460, Section 3).
Only the election of judges to the North Carolina Court of Appeals was held on a partisan basis,
with the candidates party affiliation listed on the ballot in a predetermined order: Republican,
Democrat, Libertarian, Unaffiliated. This rule for Court of Appeals candidates was established
under Senate Bill 667 / S.L. 2016-109, Section 3).
With political party displayed on the ballot for most races, at least voters could refer to this
information if they were otherwise unfamiliar with the candidates names or political
philosophies.

Ballot Order
With little to go on in nonpartisan races, voters tend to choose the candidate listed first.
Especially when all candidates are listed in a uniform order in every other partisan race on the
ballot.
Studies have shown that when a candidates name is listed
first on a ballot, it can give them a slight advantage; especially
where candidates arent as well-known as gubernatorial or
presidential candidates. Political analyst Larry J. Sabato offers
a summary of the ballot order effect in his paper for the
University of Virginia Whos On First? Does the Ballot Order
of Candidates Make a Difference?.
In the recent nonpartisan state Supreme Court race, the
Democrats name appeared first on the ballot in many
counties. Other candidates in partisan races had their names listed first if they belonged to the
same party as the governor, who at the time of the election was Republican. This rule was
established in the 2013 election reform bill known as VIVA (House Bill 589 / S.L. 2013-381,
Section 31.1).
In the November 2016 General Election, Republicans swept a
ll five partisan Appellate Court
races, but lost in the nonpartisan race for a Supreme Court Seat #2 (the Edmunds seat).

Edmunds, the Republican, was defeated by his Democrat challenger Superior Court Judge Mike
Morgan, 54 to 46 percent. Morgan won most counties, including counties with a Republican
majority of voters.

Whats Next
State lawmakers could certainly revisit the full restoration of partisan judicial elections for the
General Court of Justice. And there remains the possibility they could vote this year during a
special session to expand the state Supreme Court from its current six justices to eight (plus the
Chief Justice), as explicitly provided for in the State Constitution.
The state Constitution states in Article IV, Section 6, The Supreme Court shall consist of a
Chief Justice and six Associate Justices, but the General Assembly may increase the number of
Associate Justices to not more than eight.
This expansion of the court would require a bill to be presented to the legislature and passed
and then signed by the current governor Pat McCrory, who would serve until he is succeeded by
Governor-elect Roy Cooper in January 2017. Cooper defeated McCrory in a historically close
race that was undecided until December.
Under an expansion scenario, the newly created court seats would be vacant upon creation
and would have to be filled by appointment of the sitting governor. The appointed justices could
temporarily serve in the interim but would have to run for election to their seats in the next
statewide election in 2018 rather than be given an eight-year term that is typical for a Supreme
Court justice.
The expansion of the General Court of Justice to ensure an ideological majority is n
ot
unprecedented. In 2000, the Democrat majority in the legislature put forward and passed a
provision in a budget bill that expanded the Court of Appeals from 12 judges to 15 (House Bill
1840 / S.L. 2000-67, Section 15.5.(a)). The Democrat governor Jim Hunt then filled those seats
with Democrat judges by appointment. There was even a court challenge to this legislative
move, but it was upheld by the state Supreme Court in 2001.

History of Judicial Election Methods

METHOD

Partisan

Nonpartisan

<

Appellate Court
Superior Court
District Court

1996

2001

Senate Bill 41

Senate Bill 119

Appellate Court
District Court

Appellate Court

Superior Court

Superior Court
District Court

2002
Senate Bill 1054

2015
House Bill 8
Court of Appeals

[Supreme Court +
Court of Appeals]
Superior Court
District Court

Supreme Court
Superior Court
District Court

Key Findings of the Ballot Order Effect

1. There is an advantage to being listed first on the ballot.
2. The advantage for first-listed candidates varies widely
3. Offices at the top of the ballot, for president, governor, and senator, produce the fewest
additional votes for a first-listed candidate.
4. Offices in the middle and bottom of the ballot are especially susceptible to the first-listing
bias.
5. Partisan elections have a lower first listing bias than nonpartisan elections
6. Elections without well-known incumbents are more susceptible to first listing bias than
those with such incumbents.
7. Primary elections are more susceptible to first-listing bias than general elections
8. The first-listing bias can be just as helpful to minor-party candidates and independents
who gain the top ballot position
9. There is some evidence that, in a long listing of candidates for a particular office, being
listed last is almost as good as being listed first
10. Of all these principles that govern the first-listing bias, the most important are the degree
of information held by individual voters and the position of the office on the ballot