Courts & the Law, Defending Democracy, News

Board of Elections updates system to include judicial candidate filings from those affected by SB757

The State Board of Elections and Ethics Enforcement has updated it’s system to reflect all the judicial candidates’ names who have filed.

Candidates who could be affected by Senate Bill 757 — a judicial redistricting bill involving Superior Courts in Mecklenburg, Pender and New Hanover counties and District Courts in Wake and Mecklenburg counties — were not previously put into the same system as everyone else who filed.

Gov. Roy Cooper vetoed the measure Friday night and lawmakers have yet to take an override vote, though the Senate is scheduled to take it up tonight.

Josh Lawson, General Counsel to the Board, said in a Tuesday afternoon email that he worked with voting systems staff to resolve the Statewide Election Information Management System (SEIMS)-related reasons they hadn’t loaded up the candidates in affected districts.

It’s still unclear what will happen if lawmakers vote to change some judicial districts while candidate filing is underway, but some judges have been told they would have to withdraw their notice of candidacy, file a new one and pay a new filing fee (the prior filing fee would be reimbursed in four to six weeks). You can read more about that here.

Lawson previously said the Board is applying laws as they are enacted. He provided an updated list — see below — Tuesday of all the judges who filed for election. NC Policy Watch redacted judges’ addresses for privacy purposes.

Updated Judicial Candidates by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Early bird judicial candidates could be forced to withdraw, refile, pay twice with SB757 veto override

Oh, what a tangled web politicians have weaved for the State Board of Elections and Ethics Enforcement and the judicial candidates who filed early.

Filing for judicial offices began yesterday and 124 people registered with the Board. You can find a public list of those candidates here (updated at 11 a.m. today) — but it’s missing a few names.

Lawmakers waited until the last minute to pass a judicial redistricting bill — Senate Bill 757, which redistricts Superior Courts in Mecklenburg, Pender and New Hanover counties and District Courts in Wake and Mecklenburg counties — and Gov. Roy Cooper waited until the last minute to veto it — Friday night.

There has not yet been an override vote, so candidate filing began under the current law and districts despite the Board being braced for SB757, and now it appears the affected candidates will have some extra hoops to jump through.

Judge Louis Meyer

Judge Louis Meyer of Wake County is one of those candidates. He was excited to file on the first day because it would mean he was the first candidate listed on the Board website, but his name is one that has not yet been posted.

Meyer, who has been a district court judge since 2012, filed his notice of candidacy yesterday for district 10 in Wake and paid the $1,167 filing fee for the county-wide election.

If lawmakers override the veto of SB757, Meyer will have to re-file his notice of candidacy for district 10E. He said that means withdrawing the first notice of candidacy, repaying the same filing fee and then waiting for a refund from the first check he had to cut.

Meyer said he has to do it both ways if the veto is overridden because he can’t risk not being correctly registered this election. He said he asked Monday if he could just file both ways at that time and Board staff told him he could not.

“It may be a little complicated and it’s unfortunate,” he said of the experience. “It’s not something I can’t get through.”

When asked if he knew whether the law required him to register twice, Meyer said he wasn’t sure but he recognized lawmakers’ power and said that was the safest route. He added that he doesn’t plan to be and doesn’t want to be “some poster boy for litigation.”

Josh Lawson, general counsel to the Board, said Monday they are “accepting” filings under the current law and districts. He added that staff told candidates they should file under the current, active laws, but that he knows of at least one judicial candidate who turned in paperwork with the district number they expect will be active if/when there is a vote to override SB757.

“We are applying laws as they are enacted, and candidates are free to file at any point during the period,” he said. “Changes midstream present a challenge, and we are working to ensure enactments are implemented with as little difficulty as possible.”

Lawson did not know if the Board had ever experienced a change in districts in any election while filing was in progress. He did not return two requests Tuesday to address why there were names missing from the online judicial candidate list.

Judge Donald Cureton Jr.

Judge Donald Cureton Jr. of Mecklenburg County also filed his notice of candidacy Monday, along with a handful of colleagues from that area. He has served as a District Court judge since 2010.

He said he was told by Board staff that he could register under the current law but because of the complications, his application would not be put in the system for the public record.

“Why that happened, I do not know,” Cureton said.

He and his colleagues were first certified at the local Board of Elections and then he traveled to Raleigh to file the paperwork. He spoke with multiple people throughout the day and it was decided that the best option was for everyone to file under the current laws but with a plan to re-file if lawmakers override the veto of SB757.

Cureton, like Meyer, was told that if SB757 was overridden, he would have to first file a notice of withdrawal of candidacy, then refile a new notice and pay a new filing fee. The old filing fee, he said, would be refunded in four to six weeks.

Board staff tried to be accommodating to those judges affected by SB757, but Cureton said it was not a seamless process — he said they’re still confused about everything even after filing.

“The experience itself has been a baptism by fire so to speak — just the process,” he said. “It definitely has taught me that nothing is for certain, even when it feels that way or when people tell you it’s that way.”

Cureton and his colleagues asked Board staff if they could file for both current and future districts or if they could file a hybrid notice of candidacy and list both, but they, like Meyer, were told they could not.

He described his previous candidate filing processes in 2010 and 2014 much smoother.

N.C. Administrative Office of the Courts Director Marion Warren told judges at a Tuesday conference that the Board was holding candidates’ filings until lawmakers overrode the veto of SB757.

When asked about the AOC’s role in giving judges candidate filing guidance, spokeswoman Sharon Gladwell said the agency does not.

“Judge Warren provided his opinion about SB757, which was based on information that is publicly available about the bill, the scheduled override vote on the calendar, and the General Assembly’s stated goal to complete the short session,” she said.

The AOC has refrained from offering opinions on most bills this session and last that have affected the courts.

Gerry Cohen, who has had more than 40 years of experience in state and local government in North Carolina, said he cannot recall a time when a legislature tinkered with election administration so close to candidate filing — with the exception of one technical change in the 90s in Durham that was made in August to correct an administrative error.

The only time he recalls districts in any election being changed during a candidate filing process was in 2016 when the courts overturned congressional districts four days in — filing was cancelled and the map was redrawn.

Cohen said though that the rules for when judges can change elections is pretty clear cut but the waters are a little muddier when it comes to legislators.

Election law experts Rick Hasen, Professor of Law and Political Science at UC Irvine, and Guy-Uriel Charles, founding director of the Duke Law Center on Law, Race and Politics, said Tuesday that there was not a per se or constitutional legal rule on lawmakers changing electoral districts during a candidate filing process.

Hasen, like Cohen, did point out the “Purcell Principle,” which is the thought that courts should not change voting rules close to an election. He has written extensively about it.

In addition to SB757, there is also House Bill 717 that is pending on the Governor’s desk — he has until June 25 to veto it, which is four days before the end of filing. That bill deals with residency requirements and the listing of judicial seats.

Cohen described it all as “a big mess.”

“I think a lot of this is just poor calendar planning by the General Assembly,” he said.

Cureton said it’s difficult to balance work and everything else that is going on with judicial elections. He is a juvenile court judge, which already makes for very emotional work.

“We pour all we have into what we do on the bench,” he said, adding that judges have been working hard to plain Raise the Age implementation and have been traveling to Raleigh in addition to their work. “It’s been a very tough year and a half.”

He described it as an emotional time not only for him, but also for his family.

“We’re trying to handle it as best we can, but it’s not easy,” he said.

The Senate is scheduled to take up the SB757 veto tonight.

Below is a check-in sheet from the Board to reflect which judicial candidates filed on the first day. NC Policy Watch redacted the judges’ contact information for privacy.

Redacted Judicial Candidate List by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Federal judge dismisses lawsuit over judicial primaries; ruling expected in favor of lawmakers

A federal judge intends to rule in favor of the lawmakers who eliminated judicial primary elections and will dismiss the case brought by the North Carolina Democratic Party.

An order with U.S. District Court Judge Catherine Eagles’ findings won’t be released until next week, so it’s not clear why she made the decision.

The text order that was posted online this morning states: “In view of the opening of the filing period, the Court advises the parties that it will rule for the defendants and will dismiss the case with prejudice. An order with findings of fact and conclusions of law will be entered early next week.”

Judicial candidate filing began Monday — 124 people filed with the State Board of Elections and Ethics Enforcement. More on that will be posted later this morning.

Lawmakers eliminated judicial primary elections this year so that they could explore judicial redistricting and reform. They ultimately only redistricted Wake, Mecklenburg, New Hanover and Pender counties, but Gov. Roy Cooper vetoed that bill Friday and there has yet to be an override vote.

The North Carolina Democratic Party sued lawmakers and the state over the decision to eliminate judicial primaries, alleging their First Amendment constitutional association rights were violated.

Eagles ruled in the Party’s favor early on in a preliminary injunction hearing and ordered that the primaries be reinstated, but the 4th Circuit later reversed that decision. The trial took place almost two weeks ago.

John Wallace, one of the attorneys for the Democratic Party, and GOP legislative leaders could not immediately be reached for comment.

This is a breaking news story and will be updated as more information becomes available.

Courts & the Law, Defending Democracy, News

The opinions: SCOTUS punts two partisan gerrymandering cases

The U.S. Supreme Court passed on its two opportunities this term to weigh in on partisan gerrymandering.

Opinions in two pending cases — Gil v. Whitford and Benisek v. Lamone — were released this morning.

Gil was mostly dismissed for lack of standing and sent back to the lower court “so that the plaintiffs may have an opportunity to prove con­crete and particularized injuries using evidence — unlike the bulk of the evidence presented thus far — that would tend to demonstrate a burden on their individual votes.”

Chief Justice John Roberts wrote the opinion about Wisconsin’s challenge to a 2011 state legislative redistricting map drawn by its Republican-controlled legislature. Justices Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, Samuel Alito, Sonia Sotomayor and Elena Kagan joined. Justices Clarence Thomas and Neil Gorsuch concurred except for part III, which is the part that remands the case back to the lower court.

Kagan wrote a concurring opinion that Ginsburg, Breyer and Sotomayor joined, and Thomas wrote an opinion concurring in part that Gorsuch joined.

In Benisek, the Justices unanimously affirmed a lower court’s decision not to issue a preliminary injunction in a Maryland case that contended congressional redistricting targeted a Republican in violation of the First Amendment.

You can read both full opinions below. An analysis of the opinions and what they could mean for North Carolina will be available this afternoon at NC Policy Watch.

Gil v. Whitford by NC Policy Watch on Scribd

Benisek v. Lamone by NC Policy Watch on Scribd

Courts & the Law, Defending Democracy, News

Report: How might the U.S. Supreme Court rule on partisan gerrymandering?

Court watchers across the country were holding their breath this morning for a U.S. Supreme Court opinion on partisan gerrymandering that didn’t come.

Justices heard the Wisconsin partisan gerrymandering case, Gil v. Whitford, in October. They heard arguments in a similar case out of Maryland, Benisek v. Lamone, in March. Whatever decision comes from the high court in either case could have an effect on redistricting practices in legislatures across the nation, including in North Carolina.

The court released a couple of opinions this morning, but the Wisconsin and Maryland cases were not among them. The Hill in Washington D.C., though, published an article speculating what the court might do in the two pending partisan gerrymandering cases.

What might the justices do? We see several possible outcomes.

At one end of the spectrum, the court could categorically reject both challenges as “nonjusticiable.” Partisan gerrymandering, they could say, is fundamentally a political matter, not a legal issue for the courts. Four of the nine justices said just that back in 2004, when the court addressed partisan gerrymandering head on.

At the other end of the spectrum, the court could side with the challengers in both cases and endorse both proposed legal tests. Even under this scenario, the challengers will have more work ahead. It is too late to impose new maps for the 2018 election. Instead, the challengers will aim to have compliant maps in place for 2020. This will likely entail further litigation, because the party in power presumably will try to maintain as much of its existing advantage as possible. Another fight looms when the next round of redistricting takes place after the 2020 census.

A mixed result may be the most likely. The justices could turn away one or both cases on procedural grounds. In particular, a majority may hold that the plaintiffs in the Wisconsin case lack legal standing to challenge the entire statewide map. (Reading the tea leaves, court-watchers have deduced that Chief Justice Roberts, who expressed skepticism about plaintiffs’ standing at oral argument, is probably drafting the Wisconsin opinion.)

A final, unsatisfying possibility is that a majority will not coalesce behind any result. That’s what happened in the 2004 gerrymandering case, which is why the issue is back now. If the justices are struggling to find common ground, they might schedule the cases for re-argument this fall. And they could even add a third case to the mix — a challenge to a North Carolina gerrymander that is also teed up for review. Justice Breyer alluded to this re-argument option during oral argument in the Maryland case.

Read the full article here. Monday is the next chance for opinions from the high court.