North Carolina election officials must reinstate primary elections for judicial candidates seeking statewide office this year, including the one open seat on the state Supreme Court.
U.S. District Judge Catherine Eagles issued an order on Wednesday that, in part, grants a request by Democratic Party officials who sued state lawmakers for canceling primary elections for all judicial races in 2018 – from the district courts to the state’s highest court.
At a hearing last week, attorneys for the Democrats argued that the Republican-led General Assembly violated the party’s free speech and equal protection rights by doing away with the election that would have allowed the winnowing of candidates for the general election.
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 contended in a lawsuit filed late last year, makes it difficult for the party to put forward its best candidate.
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“A cluttered ballot threatens the freedom of political parties to join together to further common beliefs,” Eagles said in an order granting the Democrats’ request for emergency relief from the law in statewide races. “Without a primary or some other mechanism to narrow the field of candidates on the general election partisan ballot, the ability of political parties like the plaintiffs to provide support for their chosen candidate and to leverage that support in other races is restricted and the possibility of confusion and deception arises.”
Eagles did not, however, apply her order to the district court and superior court rulings, noting that lawmakers were considering redistricting plans for those races.
“We applaud the court for stopping Republicans’ attempts to rig our judicial elections,” North Carolina Democratic Party Chairman Wayne Goodwin said in a statement. “Restoring people’s right to vote in primaries for the Supreme Court and Court of Appeals is an important victory, but we believe that same right should have been extended to our lower courts as well. Make no mistake – this is a major voting rights victory, yet another setback for Republicans’ efforts to rig our judiciary, and is the third time this month alone the courts have shot down Republicans’ attempts to rig our elections. NC Democrats will continue to fight to protect North Carolina voters most fundamental right – the right to vote.”
Clock is ticking
Rep. David Lewis, a Harnett County Republican, and Sen. Ralph Hise, a Mitchell County Republican, issued a joint statement after the ruling, criticizing it as “partisan.”
Legislators have made similar criticisms after past rulings by judges or panels of judges, even if a Republican president appointed one of the panel members.
Eagles was nominated to the federal bench by former President Barack Obama.
The filing period for candidates seeking office in 2018 opens on Feb. 12 and closes two weeks later on Feb. 28.
“We are disappointed that this Obama-appointed federal judge is once again injecting chaos and confusion into North Carolina elections at the eleventh hour – this time at the behest of the Democratic Party and to the detriment of voters,” Lewis and Hise said in their statement. “This law was passed in October, and candidates interested in running for judicial office understood they still had several months to organize campaigns and make a final decision – but because of the court’s interference, they now have less than two weeks to decide. This is a highly partisan ruling by a Democratic judge, and we are evaluating our legal options.”
Much about the 2018 elections has been in flux in North Carolina. Lawmakers have appealed rulings that went against them in gerrymandering lawsuits challenging election districts for state Senate and state House as well as the state’s 13 congressional seats.
Lawmakers are considering proposals that would change how judges get to the bench in North Carolina, including new election districts and the possibility of abandoning the election of judges altogether.
The changes to the judiciary come at a time when one state Supreme Court seat, the seat held by Barbara Jackson, a Republican, will be vacant on a seven-member bench on which Democrats hold a 4-3 majority.
Anita Earls, a Democrat who led the Southern Coalition for Social Justice in representing challengers of Republicans’ redistricting plans, has announced her candidacy for state Supreme Court.
150 judicial races on the ballot
Eagles pointed out in her order granting partial relief that there “will be some 150 judicial races on the ballot in 2018. Although the exact breakdown is not in the record, it appears to include at least one Supreme Court race, three Court of Appeals races, more than 30 superior court races, and more than 115 district court races.”
Two of the state Court of Appeals seats are held by Republicans.
Since Republicans gained control of the General Assembly in 2010, lawmakers have tried to make many changes to the courts, which weigh the constitutionality of their laws. They have done away with public financing of campaigns, reinstated partisan races at a time when many states are moving away from them and decreased the size of the state appeals court shortly after Gov. Roy Cooper, a Democrat who appoints judges to vacancies on the bench, defeated Gov. Pat McCrory.
In 2015, the year before Republican Bob Edmunds’ term on the state Supreme Court expired, Republican lawmakers tried to change how sitting judges stood for re-election. A Superior Court judge panel found the law, which would have shielded sitting justices from opposition on the ballot unless they lost a “retention election,” to be a violation of the state Constitution. Because the Supreme Court split 3-3 on the question, with Edmunds abstaining, the lower court ruling forced a competitive race in 2016.
That year, Democrat Mike Morgan defeated Edmunds.
When Republicans announced their plans to do away with primaries last fall, they said they wanted to give themselves more time to redraw judicial districts. The House has adopted a plan, but the Senate has not yet put it to a vote. A committee of lawmakers from the House and Senate have discussed judicial districts in meetings this year but no vote on revised maps has been taken.
“The defendants have offered a legitimate governmental interest in this change as to elections of superior and district court judges,” Eagles stated in the order released Wednesday. “The defendants have made no showing of any governmental interest supporting the abolishment of a mechanism to narrow the field in partisan appellate judicial races, as those judges are elected statewide and are not subject to redistricting.”
Eagles did not decide the whole case but said in her order that canceling the primaries without giving political parties a way to winnow candidates for the general-election ballot was “likely unconstitutional.”
When lawmakers did away with the primary elections, they also eliminated a requirement that candidates be registered as a member of a political party for at least 90 days before filing as a candidate in that party. Not only could judicial candidates unaffiliated with either party get on the general election ballot, a “candidate could change from Republican or unaffiliated to Democrat on the day of filing, and the candidate would then be listed on the ballot as a Democrat,” Eagles wrote.
“None of the parties have identified another state that elects officials using only a general election regardless of the number of candidates,” Eagles wrote in her memorandum and order. “Nor has any party identified a state that used such a process in the recent past. No doubt this is because states have decided that limiting the number of candidates on the general election ballot better serves the public good; indeed, the Supreme Court has long recognized that states can undertake reasonable regulations to reduce the number of candidates on the general election ballot in order ‘to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden of runoff elections.’”