- Appointments to unfulfilled terms should reflect the will of voters
- The current rules for replacing judges and Council of State members give the governor the power to subvert the will of the people
- The North Carolina State Constitution should be amended so that appointees are of the same party as the elected officials they are replacing
North Carolina Commissioner of Labor Josh Dobson, a Republican, resigned on Nov. 6, one day after Republican Luke Farley was elected to succeed him. The voters of North Carolina have said in both of the past two elections that they want a Republican in that position. So, of course, Gov. Roy Cooper named Kevin O’Barr to fill the remainder of Dobson’s term. O’Barr is a Democrat.*
The Will of the People Does Not End When a Politician Resigns
Party affiliation gives voters a clue about candidates when choosing which one to vote for. As Anthony Downs, a public policy economist and former senior fellow at the Brookings Institution, pointed out over half a century ago, getting information about candidates to help them choose which one to support is one of voters’ biggest impediments.
Party affiliation is an essential factor in voters’ choices, and it can be considered almost as important as the candidates themselves. A candidate’s party affiliation gives voters a reasonable expectation of policy preferences or at least a general policy direction. We saw the effects of that lack of information when North Carolina switched to nonpartisan judicial elections from 2004 through 2016 and subsequently saw voter turnout decrease by 22.8 percent.
So, voters should be able to expect that if an elected office is vacated, the replacement chosen for the office will have a similar set of policy preferences as the former official. Naming a replacement from the same party can most effectively accomplish this.
That principle differs from an elected official choosing to change parties, a surprisingly common practice. An official who changes parties is still the person elected by the people, although one could expect at least some changes in policy preference along with the change in party. A politician who switches parties cannot do so lightly, because they risk facing the wrath of voters in the next election.
Current Rules Allow the Governor to Reverse the Vote of the People
The North Carolina State Constitution (Article III, Section 7(3)) states that when there is a vacancy in the Council of State (which are statewide elected executive offices), “it shall be the duty of the Governor to appoint another to serve” until the next election. Likewise, Article IV, Section 19 states that judicial branch vacancies “shall be filled by appointment of the Governor.”
What does that mean if the governor is of a different party from the official elected to the vacated position? As we have just seen with the Commissioner of Labor appointment, the governor is free to appoint whomever he or she wants, regardless of the party affiliation of the prior officeholder.
The constitution takes a different route with legislative vacancies, stating that they “shall be filled in the manner prescribed by law” (Article II, Section 10). That law provides for the governor to “immediately appoint for the unexpired part of the term the person recommended by the political party executive committee provided by this section,” with the committee determined by whether a district is entirely within one county, takes the whole of one county, or is spread across two or more counties.
When the current state constitution was ratified in 1971, North Carolina was still essentially a one-party state with Democrats controlling state government. In that situation, it was safe to assume that the official who vacated a Council of State or judicial position and the governor would both be Democrats. However, the state has changed a lot politically since then, and giving the governor the power to appoint successors of a party different from that of the person elected to the office has become an anachronism.
Amend the State Constitution to Match Appointees to Election Results
The way North Carolina fills Council of State and statewide judicial vacancies should be reformed so that the appointee is a member of the same party as the person elected to the position. The governor should not be cut entirely out of the process, however.
The good news is that such a procedure is already in place in North Carolina under North Carolina General Statutes (NCGS) § 163‑12, which establishes the procedure for filing vacancies in the United States Senate:
If the Senator was elected as the nominee of a political party, the Governor shall appoint from a list of three persons recommended by the State executive committee of the political party with which the vacating member was affiliated when elected if that party executive committee makes recommendations within 30 days of the occurrence of the vacancy.
An even better solution would be for the governor to appoint replacements automatically based on the suggestions of party committees, as is done for members of the General Assembly.
The General Assembly could try changing the procedure for filling Council of State and judicial vacancies to something similar by statute since the governor would still make the appointment. For example, while the state constitution gives the governor the power to fill judicial branch vacancies, state law (NCGS § 7A‑142) requires that nominees named by North Carolina State Bar members in the district be given “due consideration,” although the governor is not required to choose from among those nominees.
Making the changes through constitutional amendments would be sounder, however, since doing so would preclude the governor from challenging the change in court.
North Carolina should change how replacement Council of State and statewide judicial officials are appointed so that the governor cannot use an official’s death or resignation to overturn the people’s votes.
Note
* O’Barr’s party affiliation was not announced by the Cooper administration but found using the State Board of Election’s voter search tool on Nov. 13.
