Judge weighing judicial primaries: "I'm not in charge of bad ideas"
Published January 26, 2018
by Travis Fain, WRAL, January 25, 2018.
As it stands now, anyone otherwise qualified to run for judge in North Carolina can walk into a county elections office this June, change his or her party registration to Republican or Democrat that very day and appear on the general election ballot as a candidate from that party, attorneys fighting the latest court battle over state election laws agreed Wednesday.
The reason: The Republican legislative majority changed judicial elections to partisan affairs over the last year-and-a-half, then canceled the 2018 judicial primaries. The state Democratic Party says the latter move is unconstitutional because it tramples on the party's right to pick its own nominee.
Attorneys for the GOP majority and the State Board of Elections and Ethics Enforcement disagree with the party's logic. U.S. District Judge Catherine Eagles is considering whether to issue a preliminary injunction, forcing the state to hold primaries while she weighs the rest of the federal case.
Eagles seemed swayed toward the Democratic argument for much of Wednesday's injunction hearing, based her continued questioning of GOP attorney Martin Warf and her quizzical gaze as he struggled to answer her repeated question: If a political party has the right to name its nominee, as legal precedent states, but the state cancels primaries, how can voters find a party-backed candidate on the ballot?
Warf said the parties could hold caucuses or conventions to nominate candidates, but he conceded nothing would stop candidates who failed to win those contests from appearing on the general election ballot. Parties have a right to choose candidates, he said, but no right to demand the state hold primaries.
Eagles seemed unconvinced, saying the legislature deemed partisan nominations important when it voted for judicial primaries.
"You can't say it's important on one hand and not important on the other hand," said the judge, an Obama appointee to the bench.
Things seemed to turn in the courtroom when Special Deputy Attorney General James Bernier Jr. backed the GOP majority's bottom line. Bernier, representing the board of elections, said the legislature has opened the ballot to more people and that the Democratic Party wants to close it. A balance must be struck between individual and party rights, and political parties can't require the state to prevent others from appearing on the ballot when the state doesn't hold a primary, he said.
The argument made for strange political bedfellows, coming from a member of a Democratic Attorney General Josh Stein's staff.
?Eagles dubbed Bernier's argument "an interesting point," questioning the other side on his logic before wrapping court for the day. She didn't give a timetable for her decision on the injunction but said she would make it as quickly as possible.
Filing in other partisan races runs Feb. 12-28. If there are no judicial primaries, filling in those races would wait until June.
The judge also said she would schedule a teleconference if she has questions during her deliberations.
"I appreciate time is short," Eagles told attorneys Wednesday.
Then, with her gaze upon the Republican legal team, the judge added, "it always seems to be."
Eagles is also head of a three-judge panel that ruled against GOP lawmakers in a separate case over legislative redistricting. That's one of several cases filed by Democrats and others from the left seeking to overturn Republican-backed changes to state election laws, and these cases have been moving up and down the rungs of the U.S. justice system, often with various election deadlines looming.
Republican leaders said they canceled judicial primaries to make more time for debate on new judicial districts, which GOP leaders are now redrawing. This desire for more time to "get it together" doesn't justify taking away the Democratic Party's right to select its own candidates, party attorney John Wallace argued Wednesday.
It also doesn't explain why legislators canceled primaries for a state Supreme Court race and the three Court of Appeals races scheduled for this year, given that those positions are elected statewide and won't be affected by redistricting. The Supreme Court seat and two of those Court of Appeals seats are held by Republicans, and Democrats have argued that the crowded ballots that might result without primaries to winnow the field would favor incumbents.
Bernier agreed with Eagles that the lack of primaries would make for more chaotic elections. But that's a policy decision, not a point of law, he said.
Eagles was thinking along the same lines at one point in the proceedings, declaring, "I'm not in charge of bad ideas."
Bernier also brought up a point that could affect North Carolina elections beyond the judiciary. The piece of law canceling judicial primaries came from a broader bill that also lowered state thresholds for new political parties and for unaffiliated candidates to get on the ballot. When legislators passed the bill, they didn't add a severability clause, common legal language that says if one portion of the bill is ruled unconstitutional the rest may stand.
No one in the courtroom expressed certainty as to whether Eagles, or a higher court, could reinstate judicial primaries without also undoing the new thresholds. Bernier said at least two political parties are working toward official recognition now under the new rules. Eagles asked all sides to file short briefs on the matter.
"I'll have to read up on my severability law," she said.
