NC elections board rejects request to change state Supreme Court filing period

The state’s Board of Elections on Saturday rejected a request from lawyers representing legislative leaders to change the election schedule for one seat on the N.C. Supreme Court.

The board held an emergency meeting Saturday morning after lawyers for Senate leader Phil Berger and House Speaker Tim Moore on Friday asked that the candidate filing period for a seat on the Supreme Court be delayed because a case affecting that election is going through the appeals process.

During a telephone discussion that lasted little more than an hour, board members raised concerns that voters already were confused by the recent remapping of congressional districts, the new voter ID requirements and other changes brought about by recent legislative and court decisions.

They said they did not want to add further confusion.

At the end of the session, the board opted to keep the filing period schedule adopted on Thursday for state Supreme Court candidates.

At issue is a case pending review by the court.

Last legislative session, the General Assembly changed the law for how sitting state Supreme Court justices are elected.

The law established a retention election process through which sitting justices seeking re-election could first face the voters on the question of whether they should keep their seat. Only if voters decided against retention would the candidate field be open to others seeking a seat on the court, including the justice who failed to win the retention election.

In February, a three-judge state Superior Court panel struck down the retention election process as a violation of the N.C. Constitution.

Last week, the state Attorney General’s Office asked the Supreme Court to review the decision, putting the question about re-election procedures to the same justices who could be subject to the law.

Since the three-judge panel said no retention election could occur, the five-member state Board of Elections met on Thursday and set March 16-25 as the filing period for candidates interested in a seat on the N.C. Supreme Court.

Only one seat is on the ballot this November, that of associate justice Robert Edmunds.

Sabra Faires, a Wake County attorney who worked for many years as a legislative staffer, has said she plans to seek the seat.

Faires, registered as an unaffiliated voter, filed the lawsuit that claimed moving from contested elections to up-or-down retention votes required a voter-approved amendment to the state Constitution – which did not happen.

Now the question will be put before the state’s highest court, which has four Republican justices and three Democrats on the bench.

With that question lingering in the courts and others about whether congressional and legislative districts are unconstitutional racial and hyper-partisan gerrymanders, North Carolina voters could go to the polls when names are on the ballots for races that won’t be counted.

That’s the case for Tuesday, when voters will see congressional candidates on the ballot though those races no longer will be counted.

Earlier this year, a federal court panel struck down two of the state’s 13 congressional districts as unconstitutional gerrymanders. The legislators approved new districts and set a new primary date for elections in the newly drawn districts, but the courts have yet to approve the new lines.

Confusion over ballot

Similar disruptions could happen with the Supreme Court election process if the justices overturn the lower court’s ruling.

If that were to happen, elections director Kim Strach said, “we will have names on the ballot, like we do right now with the congressional races, that won’t be counted. That adds to the confusion.”

Elections board members stated their frustrations with Andrew Tripp, general counsel for Berger, and Bart Goodson, general counsel for Moore.

On Friday, the attorneys sent a letter urging the board to delay the candidate filing period for the state Supreme Court during the appeals process.

“The decision on appeal simply orders that no retention election be held,” Tripp and Goodson wrote in their letter. “We certainly agree with the board that there are practical challenges facing local elected officials all over North Carolina — not the least of which is the cost of running a stand alone primary election.”

James Baker, a former Madison County judge who was appointed to the elections board in the fall by Gov. Pat McCrory, and Josh Malcolm, a Democrat, pointed out that legislative leaders should have known since the Supreme Court order was entered on March 4 that there was to be no retention election. But it was not until after the elections board set the Supreme Court election schedule that attorneys for Berger and Moore got involved.

“It just makes me scratch my head,” said Malcolm, a Democrat.

Neither the legislative leaders nor their attorneys joined the board on Saturday for the emergency meeting.

Elections board members, who split three to two on whether to amend their Thursday decision, considered the cost of a statewide election – nearly $9.5 million – as well as the cost of further confusing the electorate.

Rhonda Amoroso, a Republican, struggled with what would be easiest for voters before siding with Malcolm and Baker on declining the request from the legislative leaders’ counsel.

“The election cycle right now is confusing,” Amoroso said. “I’m trying to keep it simple so the citizens of the state and the candidates who want to file …can figure it out with less confusion than …already is on the books.”

Lots of challenges

Alec Peters, an attorney from the state Attorney General’s Office who has represented the lawmakers on redistricting challenges, the voter ID law and other election law changes, spoke at the Saturday meeting.

In addition to the ambiguity about how justices are elected, there are unanswered legal questions about the 2011 legislative district maps. If the federal court panel set to hear that case rules similarly to the district court judges who struck down two of the 13 congressional districts as racial gerrymanders, the legislators could be in a position of drawing new maps and setting new candidate filing periods for those maps, too.

North Carolina voters are scheduled to go to the polls on Tuesday, in June and November to choose who represents them in state and national offices.

The April trial on the state legislative districts could result in one more election, depending on how the judges rule.

“That is something we have to be aware of in the back of our minds how all these things might fit together going down the road,” Peters said.

This story was originally published March 12, 2016 at 3:50 PM with the headline "NC elections board rejects request to change state Supreme Court filing period."