Courts & the Law, Defending Democracy, News

3-judge panel sets hearing in two cases; Anglin announces ‘conditional withdrawal’

It’s a busy time for the courts tasked with settling legislative disputes.

The three-judge panel that will preside over the two lawsuits filed by Gov. Roy Cooper and the North Carolina NAACP and Clean Air Carolina challenging constitutional amendment ballot language set a hearing at 9:30 a.m. Wednesday, Aug. 15. The hearing will be open to the public in courtroom 10C at the Wake County Courthouse.

The hearing will be just three weeks before ballots are set to go out by mail for absentee voting.

Meanwhile, there is another hearing set at 10 a.m. Monday with Judge Rebecca Holt for a preliminary injunction over a retroactive change in judicial filing rules. She issued a temporary restraining order to stop the State Board of Elections and Ethics Enforcement from printing and certifying ballots until the case was settled.

State Supreme Court candidate Chris Anglin, who is one of two judicial candidates who sued over the change in rules, announced late Wednesday that if he did not prevail in court, he would withdraw from the race. He is challenging incumbent Republican Justice Barbara Jackson and Democratic candidate Anita Earls.

Anglin registered as a Republican to vie for the seat on the high court but the Party insists he is not a true member. GOP lawmakers called a special session to change the rules so that his party affiliation would not appear on the ballot.

It’s that possibility Anglin pointed to as the reason for his “conditional withdrawal.”

“While I firmly believe and intend to prove in court the Legislature’s action is an unconstitutional violation of my rights, in the unlikely circumstance that the courts allow it to go into effect, I will not allow my party designation to be misrepresented on the ballot and aid their efforts to rig this election,” he wrote in a statement. “Thus, I have informed the State Board of elections of my conditional withdrawal if I am not listed on the ballot as I intended when I filed.”

See the official notice below.

2018 08 08_Anglin Candidate Withdrawal by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

3-judge panel appointed in cases over constitutional amendment ballot language

State Supreme Court Chief Justice Mark Martin has appointed a three-judge panel to review two cases over ballot language for four proposed constitutional amendments.

Judges Forrest Donald Bridges, Thomas H. Lock and Jeffery K. Carpenter will preside over the two lawsuits filed by Gov. Roy Cooper and the North Carolina NAACP and Clean Air Carolina. Bridges is a registered Democrat serving Cleveland and Lincoln counties; Lock is registered to vote as an unaffiliated and serves Harnett, Johnston and Lee counties; and Carpenter is a registered Republican who serves Union County.

There is not yet a hearing set in the cases. Attorneys from all sides argued Tuesday before Wake County Superior Court Judge Paul Ridgeway at hearings for temporary restraining orders to prevent election ballots from being printed with the constitutional amendments on them.

Ridgeway took the restraining order arguments under advisement and did not make a decision. He referred the case to Martin to appoint the three-judge panel because he believed it was a facial constitutional challenge and not an “as applied” challenge, like the plaintiffs argued.

These are the constitutional amendments with ballot language that is being challenged in the two cases: one requiring a photo identification, one that caps the state income tax at 7 percent, one that transfers Cooper’s power to appoint members of state boards and commissions to the General Assembly and another that strips his power to appoint judicial vacancies and also gives it, although in a somewhat convoluted fashion, to the General Assembly.

18 CVS 9805 Order Assigning 3JP by NC Policy Watch on Scribd

18 CVS 9806 Order Appointing 3JP by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Judge puts NCGA’s retroactive change of judicial filing rules on hold for the moment

Rebecca Edwards and Chris Anglin

The State Board of Elections and Ethics Enforcement cannot certify or print any election ballots until after a Wake County judge hears full arguments over the General Assembly’s decision to change judicial election rules after candidate filing.

Chris Anglin and Rebecca Edwards both filed separate lawsuits over Senate Bill 3, which retroactively requires judicial candidates to be affiliated with the party listed on their voter registration for at least 90 days before filing for a race.

Anglin, a state Supreme Court candidate, changed his Democratic affiliation to Republican on June 7 and Edwards, a Wake County District Court candidate, changed her Republican affiliation to Democratic on May 30. They both challenged SB3 only as it applied to their candidacy and said it violated several of their rights, including their First Amendment association rights and their equal protection rights.

Judge Rebecca Holt presided over Monday’s hearing over temporary restraining orders.

“It is not lost on me that this is a matter that was filed this morning after legislative action on Saturday, and that on Monday afternoon, after something has been filed, I am being asked to in effect make a decision that will affect the merits of this case,” she told the courtroom before delivering her decision. “Either I require the plaintiffs’ party designation to be listed on the ballot as some injunctive relief, or I don’t require that, in which case in either event, based on the timeline, I am deciding the case.”

Holt took what appeared on its face to be a more measured approach, though a top GOP lawmaker later called her decision “disappointing” and indicated an appeal was imminent.

She enjoined the State Board from printing the ballots — which they would have done Wednesday — in order to have a full preliminary injunction hearing next Monday. She stayed the part of SB3 that would have required Anglin and Edwards to make a decision about moving forward in their respective races without party affiliation or withdraw altogether.

Holt said her decision gives both sides — lawmakers and the candidates — an opportunity to fully brief the court on the issues. Any documents they plan to file must be submitted by 5 p.m. Friday.

An attorney for Edwards, Narendra Ghosh, said after the hearing they were “pleased with the outcome” and looked forward to Monday’s hearing. Ghosh is a board member of the North Carolina Justice Center, the parent organization to NC Policy Watch.

Anglin indicated in a news release he too approved of Holt’s decision, though he added he wasn’t surprised by it.

“What the Legislature has done is a violation of my Constitutional rights, and frankly un-American,” he wrote. “Even children understand changing the rules in the middle of an election is wrong.”

Rep. David Lewis (R-Harnett) tweeted his disapproval after the hearing.

“Appears to be a disappointing ruling,” he wrote on Twitter. “Timeline interferes with the State Board ballot deadline. Current decision would also give voters misleading information as to candidates’ long-held partisan affiliation. But was certified for immediate appellate review…”

An attorney with the North Carolina Department of Justice told Holt that the State Board needed 30 days to print and certify ballots, and that absentee forms were scheduled to go out Sept. 7 — which means Wednesday is the 30-day deadline.

Anglin’s attorney, John Burns, who is also a Wake County Commissioner, said, however, during the hearing that the deadline was not hard and fast.

Burns argued that the legislature could not “reach back in time” and change election rules without violating his client’s rights. He also argued that the bill was aimed specifically at Anglin, not Edwards.

“Had my client filed as a Democrat, I doubt we’d be here today,” he said. “It was aimed specifically to remove my client’s ability to run as a Republican for Justice [Barbara] Jackson’s seat, and as this law applies to him, it’s unconstitutional because he had a vested right under the existing statutes to run as a Republican. He followed all the rules he needed to follow.”

Martin Warf, the attorney representing lawmakers, contested the “vested right” argument several times throughout the hearing. He said the law wasn’t totally retrospective in that the ballots were not yet set.

“This law does not remove, in itself, any candidate from the ballot,” he said. “It does extend the time for a candidate if they decide they would like to withdraw on their own, but if they choose not to withdraw, they are appearing on the ballot, they are a candidate for office. The only difference is that there is potential for their party label not to be listed on the ballot.”

He added that candidates did not have a right to control information on the ballot and cited several court cases as precedent.

“That is entirely the province of the General Assembly in North Carolina or a legislature in the various states,” Warf said.

Ken Soo, another attorney for Edwards, argued that SB3 absolutely was retroactive because there was no way for his client to correct her current non-compliant party affiliation status “short of going back in time” and no way for her to appeal except to the courts.

He said everyone else in the District Court race Edwards was a candidate for would have some party label beside their name on the ballot, but she would have nothing.

“This denies her speech and association rights and does so without due process, and it all but ends her prospect for election,” Soo said.

He quoted from an affidavit they provided the court from Gary Bartlett, who was the Executive Director of the state Board of Elections for 20 years.

“In Mr. Bartlett’s opinion … it is very unlikely Ms. Edwards could prevail in an election, despite her merits, if she is listed as nothing compared to these other people who have these cues for voters,” Soo said. “And Mr. Bartlett also noted that this is, in his experience, unprecedented in at least the recent history of North Carolina to change the filing requirement or access to the ballot after the fact, and apply it not to people in the future, but to people in the past who can’t do anything about it — changing the rules in the middle of the game.”

Holt scheduled a preliminary injunction hearing in the cases for 10 a.m. Monday at the Wake County Courthouse.

Courts & the Law, Defending Democracy, News

Updated: 4 lawsuits filed this morning over constitutional amendments, veto overrides

Editor’s note: This story has been updated to reflect another lawsuit that was filed today.

Four different lawsuits were filed this morning in Wake County Superior Court over the constitutional amendments that are expected to be on the ballot this November and the legislative veto overrides from the weekend.

Chris Anglin threatened to sue lawmakers last week if they voted to override Gov. Roy Cooper’s veto of Senate Bill 3, which retroactively requires a 90-day voter registration party affiliation for judicial candidates.

Lawmakers initially removed that requirement when they eliminated judicial primary elections this year and made all judicial races partisan. It wasn’t until Anglin switched from a Democratic affiliation to Republican and then threw his hat in the ring for a state Supreme Court seat that they came back and changed the requirement again but to apply retroactively.

Anglin, who is challenging Republican incumbent Barbara Jackson and Democratic candidate Anita Earls, can still appear on the ballot under SB3, but he will not have a party label next to his name like the other candidates.

Anglin states in his lawsuit that he is being deprived of his right to appear on the ballot as a Republican.

“[SB3], as applied to plaintiff, arbitrarily and capriciously prevents Plaintiff from having the equality and rights bestowed upon others similarly situated, namely his opponents Barbara Jackson and Anita Earls, insofar as they are not barred from running as a candidate of their chosen political party,” the suit states.

The measure also infringes on Anglin’s right of political association, a component of free speech, according to the lawsuit. He points out that his right to run as a Republican at the time of candidate filing was established by statute and paid for, as required to run for election.

Anglin notes in the suit that he has to decide by Wednesday whether he will remain on the ballot without a party label or if he will withdraw from the race altogether. Given that fast deadline, he is asking the court to prevent SB3 from taking effect.

A court hearing over Anglin’s motion for a temporary restraining order is set for 2:30 p.m. today in courtroom 10A at the Wake County Courthouse. Hearings are open to the public.

Anglin is one of four total judicial candidates affected by SB3. You can read his full lawsuit here.

Wake County District Court candidate Rebecca Anne Edwards, who changed her Republican registration to Democratic on May 30, also filed a lawsuit over SB3.

It states that Edwards first registered to vote as a Republican when she was 18 years old, but that over the past several years, she has increasingly supported Democratic causes and candidates, including the election of Gov. Roy Cooper.

“Although she is troubled by the level of partisanship at all levels of government, she has considered herself a Democrat for the past several years and believes that the Democratic Party best reflects her political positions,” the lawsuit states.

Edwards, like Anglin, is asking the court to enter a temporary restraining order enjoining SB3 and to rule it unconstitutional as it applies to her. You can read the full lawsuit here.

Her case will be heard at the same time as Anglin’s.

*****

The North Carolina NAACP and Clean Air Carolina filed a lawsuit Monday over four of the six constitutional amendments expected to be on the ballot in the upcoming election.

The advocacy groups are seeking an immediate temporary restraining order and preliminary injunction to stop the proposals from appearing on ballots set to be finalized Wednesday, according to a news release. The lawsuit is over these four amendments: voter identification, boards and commissions appointments, judicial vacancy appointments and tax cap.

“For four out of the six proposed constitutional amendments, the vote count barely met the required supermajority threshold, clearing that hurdle by just one or two votes,” the lawsuit states. “Thus, these four proposed amendments are the direct result of the illegally engineered maps that targeted black voters and packed them into racially segregated districts. This court cannot allow this unconstitutionally-constituted body to use its misappropriated power to enact proposals that amend our Constitution in ways designed to suppress African-American voters and to further entrench the usupers’ political power at the expense of popular sovereignty.”

The groups, like Anglin, ask the court for a temporary restraining order to enjoin the amendments from appearing on the ballot. A hearing is set for 10 a.m. tomorrow, with the exact courtroom to be determined.

You can read the full lawsuit here.

*****

Gov. Roy Cooper

Cooper also filed a lawsuit Monday over two constitutional amendments that would “take a wrecking ball to the separation of powers.”

The amendments are one that would transfer Cooper’s powers to appoint to state boards and commissions to the General Assembly and the other would strip him of the ability to appoint judicial vacancies.

The lawsuit states that when North Carolinians see the two amendments on the ballot, they won’t have an accurate description of what they’re voting on.

“Rather than allow the voters to make an intelligent decision whether to restructure their own state government, the General Assembly has adopted false and misleading ballot language that conceals the true — and truly extraordinary — nature of these proposed amendments,” the lawsuit states.

Cooper has asked for a temporary restraining order to prevent the two amendments from appearing on the ballot and for the court to rule them unconstitutional. You can read the full lawsuit here.

Courts & the Law, Defending Democracy, News

Here are the judicial candidates who would be affected by tomorrow’s veto override

If there’s any takeaway for judicial candidates from Raleigh politics over the past few months, it’s that no one is safe.

Lawmakers are expected to vote to override Gov. Roy Cooper’s vetoes tomorrow — House Bill 3, which addresses the constitutional amendment captions and Senate Bill 3, which changes the rules about which judicial candidates can have a party designation by their name on the November ballot.

The latter requires judicial candidates to have been affiliated with the party they are registered with for at least 90 days — a status quo requirement that Republicans changed when they eliminated judicial primaries but then changed again in a special session after a state Supreme Court candidate took advantage of the relaxed ballot access.

But the candidate lawmakers have targeted with Senate Bill 3, Chris Anglin (who changed his Democratic voter registration to Republican on June 7), isn’t the only one who will be affected. Here’s the full list of candidates who would lose party affiliations on the ballot if lawmakers override the SB3 veto (according to the State Board of Elections and Ethics Enforcement):

  • Michael John Stading, of Mecklenburg — he filed for seat 1 in District Court district 26A and changed his Democratic registration to Republican on May 29.
  • Kevin Grist Eddinger, of Rowan — he filed for seat 1 in District Court district 19C and changed his Democratic registration to Unaffiliated on May 14.
  • Rebecca Anne Edwards, of Wake — she filed for seat 2 in District Court district 10D and changed her Republican registration to Democratic on May 30.

Anglin has already threatened to sue as early as Monday if lawmakers override the veto. House and Senate sessions are scheduled to convene at 11 a.m. tomorrow.