News: CJ Exclusives

Does lawsuit challenging end of judicial primary stand a chance?

Experts differ on whether court would find First or 14th Amendment violation in holding a free-for-all, multiparty general election

Election expert Michael Crowell isn’t pulling punches on Senate Bill 656.

“All I see is confusion if there’s just a single election,” said Crowell of the legislation passed earlier this year canceling the 2018 judicial primary election. “Elimination of judicial primaries is an awful decision.”

Crowell is retired associate director of the Institute of Government at the UNC School of Government and former director of the Commission for the Future of Justice and the Courts in North Carolina, which studied judicial reform in the 1990s. He thinks a lawsuit filed Tuesday in U.S. District Court makes a legitimate claim that S.B. 656 violates the U.S. Constitution by denying political parties the right to choose their own candidates to appear on general election ballots.

That said, longtime General Assembly attorney Gerry Cohen notes Supreme Court precedents have allowed free-for-all primaries pitting candidates of all parties against one another with the top two finishers appearing on the general election ballot — even if they belonged to the same party.

The N.C. Democratic Party and local Democratic parties in Cumberland, Durham, Forsyth, Guilford, Mecklenburg, Orange, and Wake counties filed the lawsuit. It claims eliminating the spring judicial primary deprives Democrats of constitutionally protected rights of political association under the First and 14th amendments. It asks the court to reinstate the judicial primary election, and allow candidate filing to begin Feb. 12 for about 150 judicial elections for races ranging from District Court to Supreme Court.

Senate leader Phil Berger, R-Rockingham; House Speaker Tim Moore, R-Cleveland; the N.C. Bipartisan State Board of Elections and Ethics Enforcement; and the board’s executive director Kim Strach are named as defendants.

Berger cried foul.

Unable to win control of the legislature at the ballot box or to sustain the governor’s veto of legislation that doesn’t serve their political goals, [Gov.] Roy Cooper and the Democrat Party are now attempting to turn the judiciary into a full-time partisan battleground to achieve political outcomes they don’t have the votes to deliver on their own,” Berger said in a written statement.

Cooper spokesman Ford Porter said Republicans started the political hijinks.

“This legislature wants to take over the courts for political purposes, and is threatening an independent judiciary,” Porter said.

I don’t care whether Democrats or Republicans are elected, and I don’t really think we should be electing judges in the first place,” Crowell said.

Democrats have a legitimate claim, he said. The U.S. Supreme Court has recognized several times that a political party has an interest in deciding how its candidates are selected. Though facts of those cases differed, the North Carolina suit makes claims that fit the court’s previous rationale.

The suit says a free-for-fall general election in which all comers run against one another would deny Democrats the ability to choose their preferred candidates for a partisan general election.

Crowell cited several practical reasons to keep judicial primaries:

  • Voters pay scant attention to judicial elections, don’t know who the candidates are, and don’t know much about the offices. This lack of knowledge discourages voting in judicial races. Eliminating the primary would give voters even less information about the candidates in the general election.
  • More candidates would run in a winner-take-all single election because each one’s chance to win could increase. In a 2014 single election, 19 candidates competed for one Court of Appeals seat. Without the primary filtering process, unqualified candidates would have a better shot of defeating qualified candidates.

The lawsuit says every party has the right to hold a primary to select a standard-bearer for its message. The primary winner would be “the party’s ambassador to the general electorate in winning the public over to the party’s views.”

Democrats may not favor partisan judicial elections, Crowell said. But since candidates run under party affiliations, each party has an interest in deciding who will bear its label in a general election.

Nor does Crowell buy Republicans’ argument that potential changes next year in judicial district maps — or a possible move from electing judges to appointing them — justified canceling the primary.

Eliminating the spring primary isn’t necessary, he said. Changing from elections to appointments would require a constitutional amendment and a ballot referendum. Any such referendum, if it passed, would take effect after 2018, so judges will be elected in 2018. A primary still could be held, in the spring or later. The state has held primaries as late as September.

Gerry Cohen, retired General Assembly special counsel, said North Carolina has had free-for-all judicial elections in the past. Party affiliations didn’t appear on ballots then. Judicial elections are now “quasi-partisan.”

Though circumstances are different, Cohen said the U.S. Supreme Court has rejected claims in two states similar to those raised in the North Carolina suit.

Washington and California hold “top two” primary systems. Under that blanket election, all primary candidates run against one another. The top two vote-getters advance to the general election regardless of party. Political parties unsuccessfully challenged that election method on First Amendment grounds similar to the ones Democrats are raising in the N.C. lawsuit, Cohen said.

In California’s 2016 U.S. Senate race to succeed retiring Sen. Barbara Boxer, for instance, two Democrats faced one another in November, with state Attorney General Kamala Harris defeating U.S. Rep. Loretta Sanchez.