When North Carolina creates new judgeships that go unfilled because of a delayed Voting Rights Act preclearance, how does the Governor fill them once preclearance finally comes through?
Plain-English summary
In 1993, the General Assembly added two District Court judgeships, one in District 3A and one in District 20, by Chapter 321 of the Session Laws. The legislation said the seats would come into existence on the first Monday in December 1994, with four-year terms, and would be filled at the November 1994 election. Because North Carolina was a Section 5 covered jurisdiction under the Voting Rights Act at the time, the legislation could not be administered until the U.S. Attorney General precleared it. The state submitted Chapter 321 for preclearance on August 13, 1993. On February 14, 1994, the U.S. Attorney General objected to the two new judgeships.
The denial of preclearance had a strange effect on the new positions. The State Board of Elections could not run the election. No candidate filed. No name appeared on the ballot. No election certificate was issued. No one took the oath of office on the second Monday in December 1994. But the legislation itself created the offices effective the first Monday in December 1994 by operation of law. So North Carolina ended up with two judgeships that legally existed but were vacant, with the terms running.
On January 11, 1996, the U.S. Attorney General reconsidered and granted preclearance. Now Governor James B. Hunt asked the AG what to do. With nearly two years of the four-year terms already gone, was there still a vacancy? If so, how should it be filled?
Chief Deputy Attorney General Andrew A. Vanore, Jr. and Special Deputy Attorney General Charles M. Hensey answered cleanly. Article IV, § 10 of the state constitution provides that vacancies in district court judgeships are filled "for the unexpired term in a manner prescribed by law." § 7A-142 prescribes the manner: the Governor appoints from nominations submitted by the bar of the relevant district. If the district bar does not submit nominations within 30 days from the date the vacancy occurred, the Governor may appoint without waiting.
The judgeships came into existence on the first Monday in December 1994 and have been vacant ever since. The unexpired term runs through the first Monday in December 1998. The Governor may now appoint to fill that remaining time.
The AG also addressed the practical question of when the 30-day bar window started. One reading would say it started on January 11, 1996, the date of preclearance. The AG suggested that a fairer reading, more accommodating to the district bars, was January 25, 1996, the date the AG opinion declared a vacancy to exist. Under that reading, the bars had until February 24, 1996, to submit nominations.
Currency note
This opinion was issued in 1996. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. The most significant change is Shelby County v. Holder, 570 U.S. 529 (2013), which struck down the Section 5 coverage formula. North Carolina is no longer subject to preclearance requirements, although covered changes can still be challenged under Section 2 of the Voting Rights Act. § 7A-142 has been amended several times. Anyone evaluating a similar judicial-vacancy question today should review the current statute and the current state of the Voting Rights Act.
Background and statutory framework
The Voting Rights Act's preclearance requirement, codified in Section 5, required certain covered jurisdictions to obtain federal approval before implementing changes to voting practices and procedures. The coverage formula in the original Act swept in North Carolina based on its history of low minority registration. Section 5 preclearance was administered by the U.S. Department of Justice's Voting Section, which evaluated whether a proposed change would have a discriminatory purpose or effect.
Creating new judgeships counts as a voting change for preclearance purposes when the new offices will be filled by election. The 1994 objection to the Chapter 321 judgeships was likely based on concerns about how the new districts were drawn or how the at-large election within the districts would affect minority voting strength. The 1996 reconsideration suggests either that the Justice Department revisited its analysis or that intervening developments had addressed the original concerns.
The structural question the AG had to answer was uncommon but not unique. The same problem (legislative creation of a judicial office, preclearance denial, eventual reversal) had appeared in other Southern states under Section 5. The AG's approach (treat the office as having come into existence by operation of state law, and treat it as continuously vacant until preclearance is granted) is the standard solution. The alternative would be to treat the office as nonexistent until preclearance, which is hard to square with the legislature's clear creation of the office in state law.
The AG's choice of January 25, 1996, as the vacancy date for the 30-day bar-nominations window was a practical accommodation. Strictly speaking, the office had been vacant since December 1994. Using that date would have meant the 30-day window had run long ago, and the Governor could appoint without bar consultation. The AG's reading gave the bars a fair opportunity to participate.
Common questions
What is Section 5 preclearance under the Voting Rights Act?
Section 5 required certain covered jurisdictions (including North Carolina at the time of this opinion) to submit any change in voting practice or procedure to the U.S. Attorney General or to the D.C. District Court for approval before implementing the change. The standard for approval was that the change must not have a discriminatory purpose or effect on minority voters.
Why couldn't the State Board of Elections run the 1994 election if the legislation creating the offices was already enacted?
Because the denial of preclearance made the legislation unenforceable for voting purposes. The Board could not accept Notices of Candidacy, conduct the election, or certify the result. The legislation existed as state law but could not be administered.
Did the offices still exist even though no one was elected?
Yes. The AG concluded the offices came into existence by operation of state law on the first Monday in December 1994. The denial of preclearance only prevented administration of the election, not the creation of the office itself. The result was a vacancy in the office from the moment of creation.
How are vacancies filled when the bar fails to submit nominations?
If the district bar does not submit nominations within 30 days of the vacancy, § 7A-142 allows the Governor to appoint without bar nominations. The 30-day clock applied here from January 25, 1996, the date the AG declared a vacancy to exist.
Does Section 5 preclearance still apply to North Carolina?
No. Shelby County v. Holder (2013) struck down the coverage formula that made jurisdictions subject to Section 5. North Carolina is no longer subject to preclearance, although voting changes can still be challenged under Section 2 of the Voting Rights Act.
Source
Citations
- N.C. Const. art. IV, § 10 (District Courts; vacancies)
- N.C.G.S. § 7A-142 (procedure to fill district court vacancies)
- 1993 N.C. Sess. Laws ch. 321, § 200.6(d)-(f)
- Voting Rights Act of 1965, § 5, 42 U.S.C. § 1973c (preclearance; substantially limited by Shelby County v. Holder (2013))
Original opinion text
January 25, 1996
HAND DELIVERED Hon. James B. Hunt, Governor State of North Carolina 116 W. Jones Street Raleigh, North Carolina 27603-8001
RE: Advisory Opinion; Chapter 321 of the 1993 Session Laws; Additional Judgeships for District Court Districts 3A and 20
Dear Governor Hunt:
This is in response to your letter of January 23, 1996, in which you, the Acting Director of the Administrative Office of the Courts and the Executive Secretary-Director of the State Board of Elections requested an advisory opinion on the method to be followed in filling two district court judgeships created for District Court Districts 3A and 20 by Chapter 321 of the 1993 Session Laws.
Facts On July 9, 1993, the General Assembly ratified Chapter 321 of the 1993 Session Laws. Section 200.6, subsections (d), (e) and (f) of Chapter 321 created two additional offices of District Judge, one to be located in District Court District 3A and the other to be located in District 20. Sections 200.6(e) and 200.6(f) specified that the new judgeships would come into existence the first Monday in December 1994; that the terms for these new judgeships would run from the first Monday in December 1994 for four years and that the offices would be filled by qualified persons elected during the 1994 election cycle.
North Carolina is subject to the provisions of Section 5 of the Voting Rights Act of 1965, 42 U.S.C. § 1973c. This federal law prohibits any covered state that seeks to enforce or administer any change in its voting practice or procedure from doing so until it submits the change to the United States Attorney General and the Attorney General approves (preclears) the change. Chapter 321 was submitted to the Attorney General for preclearance on August 13, 1993, by the Administrative Office of the Courts. On February 14, 1994, the Attorney General notified the Director of the Administrative Office of the Courts that she objected to the additional judgeships in District Court Districts 3A and 20.
No attempt was made to enforce or administer the provisions of Chapter 321 or any other provision of law that pertained to the new judgeships in District Court Districts 3A and 20. Accordingly, the State Board of Elections did not accept Notices of Candidacy in 1994 for the two judgeships; no candidate campaigned for these offices; they did not appear on the official ballot for the 1994 election cycle; no certificate of election was issued in regard to these offices; no one took the oath for either office on the second Monday in December 1994 and, later, no attempt was made to appoint any person to the office at any time after the first Monday in December 1994.
On January 11, 1996, the Attorney General granted preclearance to these two offices. Consequently, North Carolina officials may now enforce and administer the provisions of Chapter 321 and any other laws applicable to the two new judgeships for Districts 3A and 20.
Question Presented
How are the new offices of District Judge for District Court Districts 3A and 20 to be filled?
Analysis
The North Carolina Constitution, Article IV, § 10, entitled "District Courts" authorizes the General Assembly to divide the State into a convenient number of local districts, prescribe where the District Courts shall sit and authorize more than one judge per district. Thus, the General Assembly had unquestioned power to create additional offices of District Judge for Districts 3A and 20. Under the terms of section 200.6, the offices of District Judge for District 3A and District 20 were to come into existence the first Monday in December 1994. In addition to creating the two new judgeships, the General Assembly through Chapter 321 specified that the occupants of the new judgeships would be elected in the 1994 general election for four year terms beginning the first Monday in December 1994.
Before the provisions of Chapter 321 could be administered or enforced, they were required to be precleared by the United States Attorney General under Section 5 of the Voting Rights Act of 1965. Chapter 321 was submitted for preclearance on August 13, 1993; preclearance on the new judgeships for Districts 3A and 20 was denied on February 14, 1994. The denial of preclearance made all provisions of state law pertaining to these offices unenforceable.
The immediate consequence of denial of preclearance was to prohibit the State Board of Elections from conducting an election for the two offices. The denial of preclearance, however, did not take away from the legislature its power under state law to create offices. Accordingly, when the first Monday in December 1994 arrived the new judgeships with four year terms came into existence by operation of this law. There was, however, no one elected to take the office as contemplated by the General Assembly in Chapter 321. The result was that the newly created judgeships were vacant.
The North Carolina Constitution, Article IV, § 10, states: "Vacancies in the office of District Judge shall be filled for the unexpired term in a manner prescribed by law." The General Assembly in N.C. Gen. Stat. § 7A-142 has enacted a law that prescribes the manner in which a vacancy in the office of district judge is to be filled. Basically, it authorizes the Governor to appoint a qualified individual to hold the office for the unexpired term from nominations submitted by the bars of the judicial districts involved. Ordinarily, vacancies in the two new judgeships would have triggered these provisions; however, since the Act creating the offices had not been precleared, these provisions could not be enforced. The result was that the two judgeships remained vacant while the terms continued to run.
By letter dated January 11, 1996, the Attorney General reconsidered the earlier denial of preclearance and allowed preclearance of the two judgeships. The time for the election has passed and slightly over two years of the term has elapsed and the offices are still vacant. The granting of preclearance allows the provisions of Article IV, § 10 of the North Carolina Constitution and N.C. Gen. Stat. § 7A-142 to be enforced and administered. Therefore, the Governor may fill the new offices of District Judge in Districts 3A and 20 by appointment in accordance with the procedures set forth in N.C. Gen. Stat. § 7A-142.
N.C. Gen. Stat. § 7A-142 provides that vacancies in these two offices should be filled by the Governor for the unexpired term (through the first Monday in December, 1998) "from nominations submitted by the bar of the (relevant) judicial district . . . ." That statute further provides "(i)f the district bar fails to submit nominations within 30 days from the date the vacancy occurs, the Governor may appoint to fill the vacancy without waiting for nominations." When, then, did the vacancy occur?
An argument may be made that the vacancy occurred on January 11, 1996, the date the Attorney General precleared the additional judgeships. However, we believe that the better argument, and the one more fair to the district bars which may wish to submit nominations, is that the vacancies occur on January 25, 1996, the date upon which this Office has opined that there is a vacancy.
Conclusion
The offices of District Judge for Districts 3A and 20 created by Chapter 321 have been vacant since their creation. Slightly less than two years remain on the terms for these offices. The portion of Chapter 321 creating the offices was precleared by the United States Attorney General on January 11, 1996. You may fill the remaining portion of the term of these vacant offices by appointment under the provisions of N.C. Gen. Stat. § 7A-142.
Andrew A. Vanore, Jr. Chief Deputy Attorney General
Charles M. Hensey Special Deputy Attorney General