When North Carolina voters go to the polls in November to elect judges, they could see a long list of names on the ballot with each candidate’s political affiliation.
In a federal courtroom in Greensboro on Wednesday, attorneys for the North Carolina Democratic Party argued that the Republican-led General Assembly violated the party’s free speech and equal protection rights in October when it voted to abolish primary elections in all judicial races this year, which would have allowed the winnowing of candidates for the general election.
U.S. District Judge Catherine Eagles is weighing whether to block the law while a lawsuit filed last year awaits trial.
Without primaries, ballots in judicial races could have many names on them. A candidate with just 30 percent of the vote could become a judge, according to changes in the law adopted in October. That, Democrats contend in their lawsuit, makes it difficult for the party to put forward its best candidate.
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As Eagles pointed out at the nearly three-hour hearing, the law also makes it possible for candidates to switch their party affiliation on the last day of the candidate filing period at the same time they file to run for a seat on the bench.
“The party has no control – Democrats or Republicans for that matter,” Eagles said.
Much of the hearing was spent on arguments about whether the October law would keep the Democrats from putting forward their candidates of choice in the November elections, in the first year since lawmakers decided to make all judicial races partisan.
Republicans in the legislature have contended the change to partisan elections was simply an attempt to give voters more information. They are considering more changes to how judges are chosen, including new election districts. Supporters of canceling the primary said it was necessary to provide candidates time to study any new districts.
Eagles had numerous questions for Martin Warf, the Raleigh attorney hired to represent Senate leader Phil Berger, a Rockingham County Republican, and state House Speaker Tim Moore, a Cleveland County Republican.
Warf argued that abolishing the primary elections did not prohibit Democrats from putting forward their candidates of choice. He said there were other methods than elections, including conventions or the caucuses like those used to choose presidential nominees in Iowa.
How can they select a candidate?
Warf’s difficulty answering the judge to her satisfaction came when she asked how that would look on the ballot.
“How can they select a candidate when the law allows candidate self-selection?” Eagles asked. “How will it show up on the ballot?”
“I don’t know how they could prohibit anyone from running,” Warf responded. He suggested the party could make its endorsement known, but the U.S. Supreme Court has ruled in a different case that a political party has a right to put forward its “standard bearer” and a simple endorsement process is not enough, the Democrats’ attorneys argued.
“The legislature has decided that partisan affiliation is important,” Eagles said. “... I hear what you’re saying that there are other ways to select a ‘standard bearer.’ But the legislature hasn’t provided any other way.”
James Bernier, a lawyer from the state attorney general’s office currently held by Democrat Josh Stein, provided the argument that Eagles showed more interest in exploring.
Bernier, who was representing the state, election director and elections board, focused on a provision of the law that also made it easier for North Carolinians unaffiliated with the Republican or Democratic parties to get on the judicial ballots.
In other partisan races for elected office, unaffiliated voters – who now outnumber those registered as Republicans in this state – have to get signatures from a large number of voters before being allowed to seek the office.
“They want to limit access to the ballot,” Bernier said. “...We’ve opened up access to the ballot to everyone who wants to run.”
Will GOP agree to special election?
Attorneys for lawmakers argued that Eagles should wait until after an expedited trial to decide the case.
There still would be time, they argued, to hold a primary if that were her ruling after judicial candidates file for office in June, as the October law states.
Eagles, who has presided over gerrymandering cases in which Republican lawmakers have argued against special elections, tried to elicit assurances from Warf and Bernier that a special primary election would not be fought by lawmakers if that were the route she ordered.
Warf said a primary for judicial races after the May primaries for other races sounded “feasible” from his “point of view.”
John Wallace and Edwin Speas, the attorneys for the Democrats, urged Eagles to block the law canceling primaries, which would open the door for judicial candidates to file for office between Feb. 12 and 28 as other candidates do.
Speas said there had been “no articulated reason” for canceling the primaries other than the lawmakers were considering making changes to how judges – for the state Supreme Court to the district courts – get to the bench.
A committee of lawmakers met earlier this week and considered new judicial districts that were similar to a plan adopted late last year by the House. The meeting on Monday brought sharp criticism from Democrats who argue the maps were designed to favor Republicans and weaken the influence of black and urban voters who often support Democrats.
Meanwhile, Senate leader Berger’s chief of staff has been floating plans for selecting judges that would pass only if voters agreed to give up their say in who sits on the bench.
No cases like this
Bob Orr, a former state Supreme Court justice and Republican, submitted a sworn statement to Eagles supporting restoration of the primaries. So did former Wake County Superior Court Judge Donald Stephens, a Democrat. Neither wanted to see a situation similar to a recent election in which 19 candidates were seeking one state Court of Appeals seat.
Eagles told the attorneys she was aware of the tight timeline she had to rule in.
“I appreciate time is short,” she said. “It always seems to be.”
She also acknowledged that court intervention restoring the primary as requested by the Democratic Party essentially would decide the case without further proceedings or a trial.
Speas pointed out in his closing argument that neither he nor Wallace could cite a case with the same circumstances as they argued on Wednesday.
“There’s no case because no legislature in the history of this country has ever thought it was a good idea to eliminate primaries in partisan elections,” Speas said.