Lawmakers could still roll out a proposal to abandon the election of judges to the state Supreme Court and Appeals Court.
Martin Warf, the Raleigh-based attorney representing Republican lawmakers in the legal case questioning the canceling of primaries in judicial elections this year, mentioned the proposal in his attempt to get a federal judge to block her recent order.
To abandon the election of judges, North Carolina voters would have to approve an amendment to the state constitution.
On Jan. 31, U.S. District Judge Catherine Eagles partially granted a request from the North Carolina Democratic Party and ordered a primary election for statewide races.
She did not grant the Democrats’ request to do the same for the Superior Court and District Court races, which choose who presides over traffic cases, child custody issues and misdemeanor crimes.
“Even if the separate examination for the statewide races is appropriate, there was evidence in the record that all judicial races (including appellate races) could be impacted by actions of the Legislature this year, and was also the impetus for a delayed judicial races,” Warf wrote in the request to delay the judge's order. “For instance, the record reflects that the General Assembly returned in January 2018 to examine constitutional amendments regarding the selection of judges, amendments that if passed, would appear on the May primary ballot for all North Carolina voters.”
Warf noted committee meetings in January where such plans were mentioned, though no proposal has been put forward for a vote.
The legislature is due to return to Raleigh on Wednesday.
The state House of Representatives has approved a plan to change the election districts for District Court and Superior Court judges, but the Senate has not yet voted on any maps.
In her ruling in late January, Eagles noted that though lawmakers had said they canceled the primaries to study new election districts for trial judges, the appellate judges run on a statewide basis and would not be affected by new election district plans.
Warf contended in his request to block the ruling that Eagles had created a “two-tiered” system for electing judges in North Carolina that would confuse voters.
“Ten days is all that stands between filing this brief and the beginning of the 2018 election cycle,” Warf said in the document filed Friday. “Any change in the mechanics of the election — much less the drastic change ordered by this Court — will have wide-ranging effects on the election that will undoubtedly and irreparably harm both Defendants and the electorate.”
In their lawsuit filed late last year protesting lawmakers canceling primaries this year in judicial races only, 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.
Supreme Court races
Across the state there are about 150 judicial races slated for 2018.
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.
There are three Court of Appeals seats that will be on the 2018 ballot and two of them are held by Republicans.
Two years ago, Republican lawmakers adopted a law that would have changed how sitting judges on the state Supreme Court stood for election.
The law was later struck down. A panel of Superior Court judges found that the law, which would have shielded sitting judges from opposition at elections unless they lost a “retention election,” to be a violation of the state constitution. The state Supreme Court split 3-3 on the question, a deadlock that left the lower court ruling in place while also leaving open a possibility for lawmakers to propose other forms of retention elections that might not pose the same legal questions.
At noon on Feb. 15, state Supreme Court Chief Justice Mark Martin is moderating a panel discussion at the Federalist Society’s Triangle Lawyers Association on the selection of judges. Martin told the NC Bar Association last summer that he supported a proposal to ask voters whether the state should abandon the election of judges for a selection system.
Systems discussed in January by lawmakers selected by the leaders of the state House and Senate would have given legislators a prominent role in selection of the judges who would be weighing the legality of their laws.
In asking for relief from Eagles’ order reinstating primaries, Warf urged her to get quick response from Democrats and to rule quickly.
The lawmakers, Warf noted, plan to appeal to the 4th U.S. Circuit Court of Appeals. It’s unclear how quickly an appeal would be heard.