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, and the appointees shall hold their places until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, when elections shall be held to fill the offices. When the unexpired term of any of the offices named in this Article of the Constitution in which a vacancy has occurred, and in which it is herein provided that the Governor shall fill the vacancy, expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill that vacancy for the unexpired term of the office. If any person elected or appointed to any of these offices shall fail to qualify, the office shall be appointed to, held, and filled as provided in case of vacancies occurring therein. All incumbents of these offices shall hold until their successors are qualified.
(1985 (Reg. Sess., 1986), c. 920, s. 2.)
History Note. - The provisions of this section are similar to those of Art. IV, § 17, Const. 1868, as that article was rewritten in 1962.
Defeated Amendment Proposals. - An amendment proposed by Session Laws 1981, c. 504, and defeated at the general election held in 1982, would have substituted "statewide general election" for "election for members of the General Assembly" near the end of the first and second sentences and would have inserted "the" preceding "case of vacancies occurring therein" at the end of the third sentence.
CASE NOTES
Amendment to G.S. 7A-16 Held Unconstitutional. - Amendment to G.S. 7A-16 effected by Session Laws 2000-67, s. 15.5, which expanded the size of the state Court of Appeals from 12 judges to 15 and which allowed the newly appointed judges to serve until the year 2005 before being required to face a retention election, was unconstitutional to the extent that it conflicted with the provisions of N.C. Const., Art. IV, § 19 requiring a judge appointed to a judicial vacancy to stand for election at the next general election; remaining portions of the statute were constitutional and could properly be severed from the unconstitutional clause. Pope v. Easley, 354 N.C. 544, 556 S.E.2d 265 (2001).
Nonexclusive Provision. - This section does not exclusively govern the appointment of district court judges. Baker v. Martin, 330 N.C. 331, 410 S.E.2d 887 (1991).
Concurrence of Senate Unnecessary in Filling Vacancies. - The general appointing power is given to the Governor with the concurrence of the Senate; the power to fill vacancies, not otherwise provided for, is given to the Governor alone, and that, whether the legislature is in session or not, and without calling the Senate. Nichols v. McKee, 68 N.C. 429 (1873), decided under former Art. IV, § 25, Const. 1868, prior to the 1962 revision of the Article.
Creation of Actual Vacancy by Resignation. - Where a district court judge resigned upon the discovery of his legal infirmity under G.S. 7A-4.20, his resignation from office created an actual vacancy in that position. Hence, upon the 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. The judge, therefore, created a legal as well as an actual vacancy in office under this section. People ex rel. Duncan v. Beach, 294 N.C. 713, 242 S.E.2d 796 (1978).
Vacancy on Refusal to Accept Office. - Where a person was elected judge of the superior court, but declined to accept the office and never qualified, there was a vacancy within the meaning of this section, and the Governor had the power to fill such vacancy by appointing a successor. People ex rel. Cloud v. Wilson, 72 N.C. 155 (1875), decided under former Art. IV, § 25, Const. 1868, prior to the 1962 revision of the Article.
Preference May Be Given to Political Party of Vacating Judge. - The General Assembly may require that in the interim appointment of a district court judge preference must be given to a member of the same political party as the vacating judge. Baker v. Martin, 330 N.C. 331, 410 S.E.2d 887 (1991).
Section 7A-142, which provides that candidates for a vacancy in the office of a district judge shall be members of the same political party as the vacating judge does not violate the Constitution of North Carolina. Baker v. Martin, 330 N.C. 331, 410 S.E.2d 887 (1991).
Election to Fill Unexpired Judicial Term of Office. - Section 163-9, insofar as it provides for elections of judges to fill only the unexpired portions of eight-year terms, is authorized by this section; therefore, it does not violate N.C. Const., Art. IV, § 16, providing that judges "shall be elected . . . and shall hold office for terms of eight years." Brannon v. North Carolina State Bd. of Elections, 331 N.C. 335, 416 S.E.2d 390 (1992).
Constables. - The provision in this section that "all incumbents of these offices shall hold until their successors are qualified" does not embrace the office of constable. State ex rel. King v. McLure, 84 N.C. 153 (1881), decided under former Art. IV, § 25, Const. 1868, prior to the 1962 revision of the Article.
Applied in State ex rel. Martin v. Preston, 325 N.C. 438, 385 S.E.2d 473 (1989).