Primary elections for statewide judicial races in North Carolina are canceled again after an appeals court granted a request on Friday from Republican lawmakers to temporarily halt a federal judge’s ruling.
The announcement came in a two-paragraph notice from a clerk at the 4th U.S. Circuit Court of Appeals.
Judges Paul V. Neimeyer, a George H.W. Bush nominee, and Judge Stephanie D. Thacker, a Barack Obama appointee, agreed to grant the emergency request from lawmakers. Judge Diana Gribbon Motz, a Bill Clinton nominee, voted against it.
The decision comes three days before the filing period was to open for candidates seeking the four statewide judicial seats on the ballot in the 2018 elections. Barring any further action by the courts, state elections officials said in a subsequent memo, candidates seeking judicial seats in 2018 will file for election from June 18 to June 29.
Most other candidates seeking General Assembly or congressional seats will file during the regular filing period, which begins at noon on Monday and runs through noon on Feb. 28.
With all the lawsuits challenging districting plans and recent changes that lawmakers have made to the courts and judicial races, there has been much confusion about election districts and what races will be on the ballot for the May primaries.
“Republicans injected chaos into our elections and took away North Carolina voters’ right to vote in a primary election as part of an effort to rig our independent judiciary and elect more Republican judges,” state Democratic Party Chairman Wayne Goodwin said in a statement. “Today’s ruling is disappointing but we are evaluating all further legal options available to protect the most fundamental right in our democracy – the right to vote.”
Republicans have accused Democrats of “suing until they turn North Carolina blue” and accused them of sowing confusion in the election.
On Jan. 31, U.S. District Court Judge Catherine Eagles partially granted a request from the North Carolina Democratic Party, ordering lawmakers to reinstate primary elections for four statewide judicial races. Eagles did not order May primary elections for Superior Court and District Court races to give lawmakers more time to shape redistricting plans.
In response, Republican leaders of the legislature quickly turned to the appeals court.
“The court below has created a confusing, bifurcated system of judicial elections on the eve of the election cycle,” Martin Warf, the Raleigh-based attorney representing Republican lawmakers, wrote in a request for the appeals court to block Eagles’ ruling before their appeal can be heard.
The Democratic Party had sued the lawmakers in December over a law adopted in a special session that fall eliminating primary elections in 2018 for all judicial races. The party contended that doing away with primaries in partisan judicial races violated the party’s free speech rights.
In a court hearing in January, attorneys for the Democrats argued that not only did the lawmakers do away with primary elections, they also changed rules for candidates filing to run in the newly partisan elections. Anyone could switch their party affiliation on the last day of the filing period and sign up to run under the name of a party that does not necessarily agree with the candidate's viewpoints. Without primaries, there would be no winnowing of the candidate field, and general election ballots could have many names on them.
Before her ruling on Jan. 31 granting partial relief to the Democrats, Eagles questioned how voters would know who was a party’s choice on ballots that could include numerous candidates. She also said a party could play games to get people to change their party affiliations shortly before filing as candidates and running for a seat on the bench.
Lawyers for Republican lawmakers contended that nothing in the U.S. Constitution guarantees primary elections. They said nothing prevented the state Democratic Party from assembling and endorsing candidates.
What will voters be asked in May?
When doing away with the elections for 2018, lawmakers said it would give them time to consider changes proposed for Superior Court and District Court election districts across the state.
Eagles noted in her ruling that the four court races on the ballot on 2018 – one Supreme Court seat and three appeals court seats – were statewide races that would not be affected by any redistricting plans.
Then a week ago, in a filing in the case, Warf tried to persuade Eagles to lift her order by saying lawmakers also were considering whether North Carolina should develop systems to abandon the election of judges. For that to happen, North Carolina voters would have to approve an amendment to the state constitution.
In her order released Wednesday, Eagles wrote that lawmakers have not “directed the Court’s attention to any evidence indicating that any such constitutional amendment would affect elections in 2018.”
“Additionally, as the plaintiffs point out, in the last forty-plus years more than thirty bills have proposed selecting judges by some means other than election by the people,” Eagles wrote. “Of these, most died in committee, none has passed both the House and Senate ... and none made it onto the ballot for the voters’ approval or rejection, making this asserted state interest entirely speculative.”
Trial still on the schedule
Though a trial over the questions in the lawsuit has not yet been held, Eagles said in her January ruling that from the evidence she had heard so far, the Democratic Party was likely to prevail.
The judge expedited the trial and hoped to have issues heard and resolved no later than June, she said. During a hearing in January, Warf told Eagles that he saw no reason why, if Democrats were to prevail at trial, that primary elections could not still be scheduled between then and the November elections.
The House has been pushing new redistricting plans for Superior Court and District Court races, but the Senate has not yet put any of its proposals to a vote.
Nor has it voted on moving away from judicial elections. The chief of staff for Senate leader Phil Berger has had discussions with judges about a possible ballot proposal to ask voters whether the state should continue the election of judges or move toward an appointment system.
Shrinking the NC Court of Appeals
On Friday, before the 4th Circuit panel issued its order, attorneys for Republican lawmakers and Gov. Roy Cooper were in a different court arguing about a different action the General Assembly took last year involving the state courts.
Last year, in anticipation of three Republican judges reaching retirement age while Cooper was in office, the General Assembly decreased the size of the North Carolina’s appeals court by three seats.
On Friday, in a Campbell University law school courtroom, lawyers for the Democratic governor argued that lawmakers had unconstitutionally grabbed his power to appoint members to the Court of Appeals when there were vacancies on the court.
Cooper vetoed the bill to lop three seats off of the appeals court shortly before Doug McCullough, a former judge on the appeals court, reached the mandatory retirement age.
McCullough, a Republican, surprised lawmakers when he stepped down earlier than planned in a brief window that gave Cooper the power to appoint his replacement. The former judge explained later that he was upset with what lawmakers were doing to the courts.
Since then, McCullough has recounted how Republican Party Chairman Robin Hayes approached him in November 2016, after Cooper defeated former Gov. Pat McCrory but before he took office, with a proposal to get him to step away from the bench that year so McCrory could name his replacement.
The legislative actions and arguments in court come amid a power struggle between the Republicans who hold a veto-proof majority in the Senate and House and the governor who won statewide election.
Jim Phillips, the Greensboro-based attorney who has represented Cooper in other cases challenging lawmakers, argued that decreasing the appeals court as lawmakers did by abolishing seats when a vacancy occurred violated the state constitution by reducing eight-year terms.
Noah Huffstetler, a Raleigh-based attorney who has represented lawmakers in many of the struggles, argued that legislators had eliminated an office, not shortened the terms for judges.
“An office that does not exist can have no term,” Huffstetler argued.
But Phillips told the three-judge panel hearing the case that Huffstetler’s argument ignored the language in the law, which specified the seat would be abolished either when the judge retired or the term expired.
The Superior Court judges – Henry Hight, a registered Democrat whose district includes Franklin, Granville, Vance, and Warren counties; Jay Hockenbury, a registered Republican from New Hanover County; and Nathaniel Poovey, a registered Republican from Catawba County — did not rule from the bench.