Most legal fights pitting North Carolina’s governor against its legislative leaders focus on different interpretations of words in the state’s constitution.
But the outcome of at least one battle could depend on the absence of words in North Carolina’s governing document. Judges’ assessment of the state constitution’s silence could have far-reaching impacts.
The dispute involves Gov. Josh Stein’s power to fill vacancies on the state Court of Appeals and Supreme Court. For years, the governor has filled vacancies with any North Carolinian who meets qualifications to be a judge or justice.
But a provision in 2024’s Senate Bill 382 limits Stein’s choices. If the departing judge or justice was affiliated with a political party when voters elected him, the governor must appoint a new jurist from the same party.
That’s not all. Party leaders would present the governor with three options. Stein’s choice would be limited to one of those names.
With a Democratic governor and statewide courts now dominated by Republicans, the provision would block Stein from shifting state courts toward the political left.
There is no current vacancy. Yet Stein did not wait to challenge the provision in court. His lawyers labeled the new law an unconstitutional encroachment on the governor’s executive power.
The North Carolina Constitution contemplates judicial vacancies. Article IV, covering the judicial branch, includes Section 19. “Unless otherwise provided in this Article, all vacancies occurring in the offices provided for by this Article shall be filled by appointment of the Governor,” it begins.
The article says nothing about restrictions or limitations on the governor’s statewide judicial appointments. Stein and the state’s Republican legislative leaders disagree about the practical implications of that silence.
For the governor, the constitution restricts lawmakers’ actions. Nothing else within Article IV says that the legislature may limit Stein’s choices.
The governor’s lawyers pointed to a different constitutional provision (Article IV, Section 10) that focuses on the state’s District Courts. “Vacancies in the office of District Judge shall be filled for the unexpired term in a manner prescribed by law,” the provision explains. Section 10 also spells out that vacancies for magistrates shall be filled “in the manner provided for original appointment to the office, unless otherwise provided by the General Assembly.”
Framers of the North Carolina Constitution could have added similar language in Article IV’s description of the Supreme Court (Section 6) and Appeals Court (Section 7). The framers also could have added language to the vacancies section (19) had they wanted the General Assembly to maintain oversight of the governor’s statewide judicial appointments.
The absence of any language mentioning the General Assembly or its laws swings the legal dispute in the governor’s favor, Stein’s legal team has argued.
Lawyer Daniel Smith labeled SB 382 an “aberration” during his presentation to a bipartisan three-judge panel on June 24. The law “plainly, clearly” violates Article 4, Section 19, Smith added. The governor has enjoyed “unfettered” power over filling disputed vacancies since 1868.
On the other side of the courtroom battle, Republican legislators hold a different view of the state constitution’s silence.
The governor’s arguments fail to recognize “the nature of legislative power” under the constitution, lawyer Noah Huffstetler said during the June 24 hearing. Stein could win only by citing text that “specifically prohibited” the General Assembly from writing a law regarding judicial vacancies, Huffstetler argued.
In the absence of a clear constitutional provision blocking the General Assembly from acting, lawmakers were free to enact new restrictions spelled out in SB 382, Huffstetler explained.
In other words, the state constitution’s silence swings the legal argument in the General Assembly’s favor.
The three-judge panel disagreed. While upholding other provisions of SB 382 that limited Stein’s power, the judges ruled unanimously on June 24 that the governor “has demonstrated beyond a reasonable doubt” that the judicial vacancies provision violated the constitution.
Judge Graham Shirley, a Republican, speculated about the broader impact of accepting legislative lawyers’ constitutional argument.
Since the state’s governing document contains no provision against it, Shirley asked whether the General Assembly could approve a law forcing Stein to appoint a member of his own Cabinet — such as the transportation secretary — from the opposing political party. Legislative lawyers did not clearly reject that scenario.
Lawmakers have appealed the trial judges’ ruling. Now the courts affected directly by SB 382 could determine whether the state constitution’s silence bolsters arguments from the governor or his legislative foes.
The ultimate decision could shape the separation of executive and legislative powers within North Carolina’s state government for years to come.
Mitch Kokai is senior political analyst for the John Locke Foundation.
