In September 2023, then-Governor Roy Cooper appointed Allison Riggs to fill a vacancy on the North Carolina Supreme Court created by the retirement of Associate Justice Michael Morgan. As an appointee, Associate Justice Riggs was eligible to hold the seat (Seat 6) until January 1 following the next general election held more than 60 days after the vacancy occurred. In Riggs’ case, that election was held on November 5, 2024. In the normal course of events, the results of that election would have been certified in December 2024 and the prevailing candidate would have taken office on January 1, 2025. The election did not, however, follow the usual path.
The vote tally for Seat 6 was unusually close. After a recount, Riggs maintained a slim 734 vote lead over her challenger, current Court of Appeals Judge Jefferson Griffin. Judge Griffin filed election protests challenging votes cast by more than 60,000 individuals, alleging on various grounds that these persons were ineligible to vote in this election. The North Carolina State Board of Elections (“State Board”) assumed jurisdiction over Griffin’s protests and rejected his challenges. Griffin thereafter sought relief from the North Carolina Supreme Court, and the State Board removed the matter to federal court. The federal court abstained from reaching the merits and remanded the matter to the North Carolina Supreme Court on January 6. The next day (three days before the State Board was to certify the election results) the state supreme court granted Griffin’s motion for a temporary stay barring the State Board from certifying the results.
There is a lot in this situation to unpack, but I wanted to address a top-line issue: Given that the election has not been certified, who holds Seat 6? And what happens for other elected and appointed officers when their terms expire and no successor has yet been elected and qualified or appointed?
As for the first question, Riggs holds Seat 6. G.S. 163-9, the statute that prescribes how vacancies on the state’s appellate courts are filled, states not only that an appointed Justice or Judge holds office until the January 1 following the next general election, but also that the appointee holds that office “until a successor is elected and qualified.” G.S. 163-9(a). The statute codifies in part Article VI, § 10, of the North Carolina Constitution, which states that “[i]n the absence of any contrary provision, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified.” Thus, Riggs remains an Associate Justice, serving for an indefinite period in what is frequently referred to as “holdover status” until the election results for Seat 6 are certified and the prevailing candidate takes the oath of office. See N.C. Const. Art. VI, § 7 (“Before entering upon the duties of an office, a person elected or appointed to the office shall take and subscribe the following oath . . . .”); G.S. 11-7 (“Every member of the General Assembly and every person elected or appointed to hold any office of trust or profit in the State shall, before taking office or entering upon the execution of the office, take and subscribe to the following oath . . . .”).
As the Constitution makes clear, all appointed or elected officers (not just justices and appellate judges) may hold over in office. G.S. 128-7 codifies this more general holdover authority, providing that “[a]ll officers shall continue in their respective offices until their successors are elected or appointed, and duly qualified.” The statute reflects the State’s “long-standing public policy” against vacancies in elected and appointed offices. See Baxter v. Danny Nicholson, Inc., 363 N.C. 829, 834 (2010). Such vacancies render the government less able to serve its citizens effectively since “‘there should always be some one in position to rightfully perform these important official duties for the benefit of the public.’” Id. (quoting Markham v. Simpson, 175 N.C. 135 (1918)). Moreover, holdover provisions, combined with the requirement that officials take an oath before executing the duties of an office, eliminate uncertainty about “when the authority of an incoming official commences and the authority of an outgoing ceases.” Id. at 835 (internal quotations omitted).
In practice, an array of public officials, both elected and appointed, sometimes occupy holdover status. In Baxter, an employer moved to vacate a decision of the Industrial Commission on the basis that it was signed on the same day that one of the majority commissioners was notified that his service as a commissioner was over and a successor had been appointed. The state supreme court rejected the employer’s argument that the outgoing commissioner lacked authority when he signed the order, finding that his authority continued until his successor was sworn in.
In November 2004, David McSheehan won a contested election for district court judge in Union County, defeating incumbent Judge Williams. Unfortunately, McSheehan died before the election could be certified. In that circumstance, the Attorney General advised that the defeated incumbent district court judge could remain in office, in holdover status, until his successor was appointed. See opinion of Attorney General to The Honorable Christopher W. Bragg, Union County Courthouse (11/18/04). See also opinion of Attorney General to Mr. Garris Neil Yarborough, Hoke County Attorney, 1998 N.C. op. Att’y Gen. 53 (12/3/98) (advising that an incumbent sheriff continued to hold his office after his elected term had expired and until the resolution of an election protest).
While an official who currently holds appointed or elected office may hold the position until a successor is chosen and qualified, this authority does not allow a person who vacated the office to re-assume it. In People ex rel. Duncan v. Beach, District Court Judge Randy Duncan lost a contested election to District Court Judge Benjamin Beach. 294 N.C. 713 (1978). Duncan conceded, and Beach was sworn in. Two years later, it became known that Beach was ineligible for office as he was older than the permitted statutory age (then 70) when he took office. Beach resigned, and then Governor Jim Hunt appointed Oliver Noble, Jr. to the seat. Duncan sued, contending that he was entitled to the position because of Beach’s ineligibility.
The state supreme court rejected Duncan’s argument, nothing that “having vacated and surrendered the office to [Beach] in 1974 without contesting [Beach’s] right to it, [Duncan] had no rights under G.S. 128-7, or under case law, to reassume office.” Id. at 720. The court concluded that upon Judge Beach’s resignation, “there was no one legally entitled to hold office by virtue of an election, nor under G.S. 128-7 was there an incumbent with the legal right to continue in office until a successor was elected or appointed.” Id. Thus, Judge Beach’s resignation created a legal as well as an actual vacancy in office that it was the governor’s duty to fill.