Under the Dome

Republicans attack ‘sue until NC is blue’ strategy, then try to block ruling on primaries

Ninety minutes after Rep. David Lewis hastily called a news conference to accuse Democrats in a long-running gerrymander case of trying to “sue until North Carolina is blue,” Republicans took an action similar to those they criticized and sought emergency relief in federal court from a judge’s order reinstating judicial primaries in statewide races.

U.S. District Court Judge Catherine Eagles issued an order at 12:30 p.m. Wednesday rejecting lawmakers’ request to block her ruling that ordered the General Assembly to reinstate primary elections for candidates running for the state Court of Appeals and state Supreme Court.

In response, Republican leaders of the legislature quickly turned to an 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 4th U.S. Circuit Court of Appeals to block Eagles’ ruling before their appeal can be heard.

Warf argued that there “is simply not enough time for the State to educate potential candidates, for candidates to prepare to run, or for the State to prepare for the court-imposed, two-tier system for electing their judges in 2018.”

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.

Lawyers for Republican lawmakers contended that nothing in the U.S. Constitution guarantees primary elections. They contended nothing prevented the state Democratic Party from assembling and endorsing candidates.

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.

Selection of judges proposed before

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 statewide 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.

But last week, 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.”

Eagles took issue with lawmakers’ contention that reinstating the primary 12 days before the candidate filing opens on Feb. 12 would sow confusion and chaos.

The primary elections are in May, she noted, and the general election is eight months away in November.

“The legislative defendants have presented no evidence that the State Board cannot manage a primary election for a few appellate judicial races on the schedule already in place for other elections or that any particular practical or logistical difficulties arise as a result of the injunction,” Eagles wrote.

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.

‘Speculation at best’

The judge expedited the trial and hoped to have issues heard and resolved no later than June, she said.

“There is a weighty public interest against enforcing laws a court finds are likely to be unconstitutional, especially in the election context where voters have a strong interest in participation in elections,” Eagles wrote in her order released Wednesday. “Further, the legislative defendants’ contention concerning voter confusion is speculation at best and is inconsistent with the legislature’s own conduct in changing filing periods and abolishing the primary just a few months before the scheduled filing period and in continuing to give serious consideration to making scores of changes to local judicial districts before the 2018 election.”

Two and a half hours after the Eagles order was released, Lewis, a key Republican in the state House of Representatives, took to social media and held a news conference to complain about a different lawsuit challenging lawmakers’ redistricting plans for state House and Senate.

Lewis accused organizations and voters who sought emergency relief in state court on a Supreme Court ruling of “trying to sow confusion and cause as much chaos as possible, as many times as possible.”

“Here we go again,” Lewis said. “These liberal, dark money groups, financed and controlled by allies of the Democratic Party, are determined to use and abuse the court system to achieve unprecedented chaos. In short it appears that they will sue until North Carolina is blue, despite what the people, despite what the voters, want.”

“This is all part of President Obama and Eric Holder’s plan to sue all Republican states while ignoring egregious blue states like Maryland and Illinois,” Lewis continued.

“These Democrats’ groups lose in state court, they run to federal court. When they lose in federal court, they run back to state court. It is judge shopping, pure and simple. They are trying to ignore a Supreme Court decision that came down less than 24 hours ago.”

A spokesman for the state Democratic Party pointed out the similarities between what Republican leaders sought from the federal appeals court and what Democrats were seeking from state courts.

“It look less than two hours for Representative Lewis’ hypocritical press conference to be exposed for what it was: a hollow sham,” Robert Howard, communications director for the stae party, said. “Republicans tried to suspend an election and deny North Carolina voters their right to pick their judicial candidate in a primary. Our independent courts shot it down. Just when you think Republicans can’t stoop any lower to rig our elections against North Carolina voters, they find a way.”

Lewis told reporters in a question-and-answer session after reading his statement that he was not too upset about having primaries in the statewide races.

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.

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.

No proposal along those lines has been put forward for a vote.

Anne Blythe: 919-836-4948, @AnneBlythe1

Related stories from Raleigh News & Observer