Will there be a late judicial primary? Federal judge to decide if elimination violated Constitution

With a little over a week to go before filing for office, judges are left in limbo as a federal court considers whether lawmakers’ cancellation of judicial primaries this year disenfranchised the North Carolina Democratic Party and its voters.

If U.S. District Court Judge Catherine Eagles does find a constitutional violation stemming from Senate Bill 656, or the Electoral Freedom Act, “the only remedy is a primary,” which would likely be scheduled for later this year. The primary election for other races was held in May. Candidate filing for judicial seats runs from June 18-29.

“June 29 is a very important cutoff date,” said James Bernier, special deputy attorney general, who represents the state and State Board of Elections and Ethics Enforcement.

He added that things become “risky” after that point, but didn’t expound. Eagles, who did not rule from the bench after a trial Thursday or give any indication of who her finding might favor, was skeptical since Bernier and an attorney for the General Assembly explicitly agreed in a previous hearing that there would be plenty of time for a late primary after trial if necessary.

“There’s a changing landscape here with judicial redistricting,” Bernier explained.

After opposing counsel pointed out that a redistricting bill had been passed and sent to the Governor as late as Monday night (SB 757, which redistricts Wake and Mecklenburg counties), Eagles said there was justification for her cynicism.

“Oh, just Monday,” she asked. “Just in time.”

Judicial redistricting and merit selection are two of three justifications Martin Warf, the attorney representing lawmakers, gave for lawmakers cancelling judicial primary elections this year. The third was that they were treating statewide and local judges the same — despite judicial redistricting only affecting trial court judges.

State Democratic Party Chairman Wayne Goodwin testified that they had to modify internal operations and create an endorsement panel for statewide judicial races (which required time and money) — there is one seat on the state Supreme Court and three on the Court of Appeals up for election this year. The panel is expected to meet this weekend.

The party doesn’t have the time or resources to endorse for the 150 or so trial court judicial elections, although Wake County Democratic Party Chair Rebecca Llewellyn testified some counties were considering creating endorsement panels.

Goodwin said that the creation of an endorsement panel forced the party to reallocate power from the people to the executives; it went from a bottom-up organization to a top-down one. Primary elections, he said, were the voters voice and mechanism for choosing a “standard bearer,” or public representative of the Democratic Party.

Goodwin also testified that the other part of SB656 that was causing a “severe burden” on the Democratic Party is a provision that allows judicial candidates to change their party affiliation up until the time of filing. There was previously a requirement that they had to be registered with a political party for at least 90 days to file as a candidate of that party.

“If this were not a partisan general election [for judges], we’d be in a different situation,” he said.

Lawmakers made all judicial elections partisan again in two separate bills in 2016 and 2017. Edwin Speas, an attorney for the Democratic Party, said during his closing arguments that they could not find any other legislature in the nation that eliminated judicial primaries in a partisan election.

Speas outlined the burdens that were imposed on the Democratic Party, contended there were alternative ways the General Assembly could achieved their end goal without eliminating the primaries and said they didn’t have a legitimate and neutral justification.

“This is a classic case of hurried, not carefully considered, not thoughtful legislative enactment,” he said.

Warf said the plaintiffs in the case had a high burden of proof that they didn’t meet and that laws passed by the General Assembly were presumed constitutional.

“If there is a burden, then it is minor,” he said. “Do the justifications hold up? We think so.”

He contended that the Democratic Party has the ability to choose their candidates in other ways than a primary election.

John Wallace, another attorney for the plaintiffs, said it is the collection of burdens on the Democratic Party that amount to a First Amendment constitutional violation of association rights, not any one burden on its own.

He also pointed out that any judicial candidate the Democratic Party endorsed without a primary election would not be indicated on the general election ballot, so there was no real meaningful way to communicate with voters.

Eagles took all arguments under advisement but said she was sensitive to the time constraints in the case and would have a ruling as soon as possible.

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