Courts & the Law, Defending Democracy, News

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.

Courts & the Law, Defending Democracy, News

Judicial changes moving fast through legislature

A partial judicial redistricting bill passed the full Senate yesterday about two hours after it was given a favorable committee report.

House Bill 717 started as a statewide judicial redistricting measure but has recently gone through a number of changes and now reduces judicial divisions from eight to five and specifies that all judicial races will not be referred to by an incumbent’s name.

The House is expected to vote on the bill today at 11 a.m.

Senate Bill 757, which redistricts Wake and Mecklenburg judicial districts, has already been sent to the Governor’s Office.

That measure significantly changes the way district court judges are elected in those counties — they will have to run in sub-districts as opposed to county-wide. That means voters also will not be able to vote for every judge they might come before in court.

Another separate redistricting effort, HB 1037, is waiting to be heard in a Senate committee.

The smaller-scale judicial redistricting efforts unfolded in the past couple weeks. Democrats have opposed the measures for several reasons, but a main one being how fast changes moved through the legislature.

Courts & the Law, Defending Democracy, News

Tomorrow: Trial over judicial primaries begins in Greensboro

A trial over lawmakers’ cancellation of the 2018 judicial primaries will begin tomorrow in federal court in Greensboro.

The North Carolina Democratic party sued lawmakers and the state alleging the elimination infringed upon their First and 14th Amendment rights to Freedom of Association, or the rights of groups to take collective action to pursue the interests of its members.

You can read more about the elimination of the judicial primaries here.

The primaries had been reinstated by U.S. District Court Judge Catherine Eagles as part of a preliminary injunction but then the 4th Circuit Court of Appeals cancelled them again in a decision that was not unanimous.

Candidate filing for judicial elections begins June 18. Lawmakers are still sorting through plans for judicial redistricting in part of the state.

The hearing in Greensboro is set to begin at 9:30 a.m. and is open to the public. Electronics are not permitted in the courtroom and members of the public who attend the hearing will be required to show courthouse officials their photo identification.

Courts & the Law, Defending Democracy, News

What today’s Supreme Court opinion means for LGBTQ communities

What does the Supreme Court’s 7-2 decision today in Masterpiece Cakeshop v. Colorado Civil Rights Commission actually say about laws barring discrimination based on sexual orientation in public accommodations?

Justice Kennedy, writing for the majority, is clear: “It is unexceptional that Colorado law can protect gay persons, just as it can protect other classes of individuals, in acquiring whatever products and services they choose on the same terms and conditions as are offered to other members of the public.”

As the ACLU (attorneys for the cake-seeking couple in this case) explains, this decision reaffirms “the core principle that businesses open to the public must be open to all.”

What then, does this decision do? The Supreme Court does find in favor of the baker, Jack Phillips, but on extremely limited, fact-specific grounds.

The majority opinion finds that Phillips was not afforded the neutral and respectful consideration he was due — both because remarks by a member of the Colorado Civil Rights Commission displayed hostility towards the baker’s religious beliefs, and because the Colorado Court of Appeals appeared to impermissibly assess the legitimacy of Phillips’ underlying religious objections.

The Supreme Court therefore found that the Commission’s failure to treat Phillips in a neutral manner violated the Free Exercise clause of the Constitution and reversed the Colorado Court of Appeals decision upholding the Commission.

The big question — whether a religious objection can justify refusing service to a same-sex couple — was left for another day.

The Campaign for Southern Equality said it believes the Supreme Court will ultimately rule that LGBTQ people are protected from that type of discrimination.

The Asheville-based organization released a statement following the opinion reiterating that it does not invalidate non-discrimination laws that protect LGBTQ people.

“Here in the South, we see daily evidence of the growing support for LGBTQ equality, even as we continue to face discriminatory laws,” said Executive Director, the Rev. Jasmine Beach-Ferrara. “We will continue to fight for full equality — and nothing less.”

Equality NC in Raleigh encouraged state lawmakers to pass non-discrimination protections like those contained in House Bill 906 and for Congress to pass the Equality Act to create one set of rules for everyone.

“It’s time for our nation’s laws to catch up to our nation’s values and protect all Americans from discrimination, so that no one can be fired from their job, denied a place to live, or turned away from a business simply because of who they are,” a news release states.

Equality NC Executive Director Kendra R. Johnson said today’s opinion does not change the core American principle that businesses open to the public should be open to all.

“However, today’s decision makes it painfully clear that LGBTQ North Carolinians still lack crucial protections from discrimination,” she said. “The time is now for our leadership to do the right thing and pass non-discrimination protections for LGBTQ people and their families.”

Courts & the Law, Defending Democracy, News

El Pueblo joins suit accusing Trump administration of racial discrimination with 2020 Census question

Local advocacy group El Pueblo joined a lawsuit last week challenging the Trump administration’s decision to add a citizenship question to the 2020 Census.

The 2020 document will ask people living in the U.S. if they are citizens (for the first time since 1950). If some people avoid answering the question, the administration wants to use other government documents to fill in the blank.

“El Pueblo is deeply concerned about the potential under-count of Latinos in North Carolina and across the country with the inclusion of the citizenship question,” said El Pueblo Executive Director Angeline Echeverría. “Our hope is that, by participating in this lawsuit, we can ensure an equitable distribution of resources as a result of the 2020 Census.”

The lawsuit was filed by the Mexican American Legal Defense Fund (MALDEF), Asian Americans Advancing Justice (AAJC) and the Maryland law office of Robert P. Newman. It alleges the Trump administration’s decision to add the citizenship question is motivated by racial animus.

It violates the Fifth Amendment, the suit states, because the Census question is intended to severely under-count Latinos, Asian Americans, immigrants and other populations, and dilute their political representation and federal funding to their communities.

“El Pueblo is proud to be joining with plaintiffs from across the country that represent diverse immigrant communities and communities of color that are standing up to the administration and refusing to let them leave us out,” Echeverría said.