News: CJ Exclusives

Ballot beefs: Latest developments in the legal battles over N.C. elections

Superior Court Judge Forrest Bridges, center, listens to testimony during an Aug. 15 hearing on challenges to constitutional amendments. He's flanked by Judges Jeffery Carpenter, left, and Thomas Lock. (CJ photo by Dan Way)
Superior Court Judge Forrest Bridges, center, listens to testimony during an Aug. 15 hearing on challenges to constitutional amendments. He's flanked by Judges Jeffery Carpenter, left, and Thomas Lock. (CJ photo by Dan Way)

LAST UPDATED: 5:15 p.m., Sept. 4, to report on the N.C. Supreme Court’s ruling favoring lawmakers in their fight with Gov. Roy Cooper over two constitutional amendments. The latest update also addresses a federal three-judge panel’s ruling that North Carolina will use current maps for 2018 congressional elections.

The continuing court fights over constitutional amendments, congressional districts, and other election issues have placed North Carolina in national headlines. With a host of lawsuits in process and deadlines for absentee ballots looming, Carolina Journal will continually update developments in each of the disputes in this space.

As courts take action on the various legal challenges, check here for the latest. CJ will highlight updates through social media. To stay current, follow CJ on Twitter (@CarolinaJournal) or Facebook.

The timeline

Election Day is Nov. 6, but a host of issues must be settled long before then.

The Bipartisan State Board of Elections and Ethics Enforcement says it needs roughly 21 days to produce, proofread, and print the more than 1,400 ballot styles used in different parts of the state. According to Gerry Cohen, a longtime staff attorney for the General Assembly, about 10 counties have only one ballot style;  Wake County has 95.

N.C. law requires absentee voting to begin 60 days before an election, but because of the ongoing legal disputes, the state Supreme Court delayed the start of absentee voting to 45 days before the election — the latest date voting can begin under federal law. The lag time is needed to make sure military voters, citizens living overseas, and their families have a chance to receive and return mail ballots. Given the time needed to prepare ballots, that work should have started Sept. 1.

Cohen told The News & Observer the elections board could go ahead and prepare ballots for all the uncontested races and then do separate versions once legal challenges are resolved. If so, voters might get several pieces of paper when they enter the voting booth or open their mail ballots.

THE LAWSUITS

Congressional redistricting

North Carolina’s congressional districts were redrawn in 2016 under court order after federal judges threw out two of the 13 districts, calling them illegal racial gerrymanders. A subsequent lawsuit filed by Common Cause NC and the League of Women Voters claimed the new districts were drawn with such partisan bias that they denied the constitutional principle of one person, one vote.

The three-judge panel agreed with the advocacy groups, but in June the U.S. Supreme Court refused to hear the appeal and returned the case to the lower court.

Aug. 27, the three-judge panel issued a 321-page decision tossing out all 13 districts as illegal gerrymanders and ordered new districts before this year’s election.

The panel ordered the parties to file responses by Aug. 31.

UPDATE, Aug. 31, 5 p.m.: The plaintiffs asked the court to declare all 13 congressional districts unconstitutional gerrymanders but not require new maps until after the Nov. 6 election. See the filing here.

UPDATE, Sept. 4, 2 p.m.: The plaintiffs ask the three-judge panel to agree to block its ruling until after the U.S. Supreme Court considers the case. Taking that step now, plaintiffs contend, would give the high court an opportunity to act in time for new election districts to be drawn for the 2020 election cycle.

UPDATE, Sept. 4, 5:15 p.m.: The three-judge panel agrees 2018 elections should be conducted using current district maps.

Constitutional amendments

In a July special session, the General Assembly placed six constitutional amendments on the November ballot.

  • Constitutional protections for the right to hunt and fish.
  • An expansion of the constitutional rights of crime victims and their families.
  • A requirement for voters to provide a state-approved ID at the polls.
  • A reduction in the top income-tax rate allowed from 10 percent to 7 percent (the current rate is 5.499 percent).
  • A change in the way members of the state elections and ethics board are appointed and reducing the board’s size from nine members to eight.
  • A change in the way judicial vacancies are filled.

The first two amendments weren’t challenged in court. The NC NAACP and Clean Air Carolina filed lawsuits challenging the other four. The groups claimed the amendments were misleading. The NAACP also argued the General Assembly elected in 2016 was unconstitutional, since members ran in illegally gerrymandered districts. Even though the NAACP argued lawmakers were “usurpers” who could not legally enact legislation, the only actions by the 2017-18 session the group challenged were the constitutional amendments.

A three-judge Superior Court panel said the voter ID and tax cap amendments weren’t misleading and left them on the ballot. The court also said it did not have jurisdiction to decide if the usurper argument was valid. That lawsuit was before the N.C. Court of Appeals at press time.

Separately, Cooper challenged the elections board and judicial vacancy amendments, also claiming they were misleading. Cooper’s legal team said the amendments would violate the constitution’s separation of powers provision as well.

The panel accepted the governor’s arguments and struck the amendments from the ballot.

Rather than appeal, the General Assembly convened another special session in August to rewrite the amendments and address the court’s concerns.

Cooper challenged the new amendments, saying they were misleading, too.

On Aug. 31, the same three-judge panel that agreed with Cooper’s first complaint unanimously rebuffed the governor’s new lawsuit and left the new amendments on the ballot (read the order here). Cooper appealed to the state Supreme Court.

UPDATE: Sept. 4, the state Supreme Court denied the NAACP’s appeal, asking the court to remove the tax cap and voter ID amendments from the ballot. For now, voters will decide the fate of the amendments.

UPDATE: Sept. 4, the state Supreme Court affirmed the three-judge panel’s ruling leaving the two new amendments on the ballot.

Partisan affiliation

During a July special session, lawmakers passed Senate Bill 3, a measure barring judicial candidates from changing party affiliations less than 90 days before the filing period. The bill affected Chris Anglin, a longtime Democrat who changed his affiliation to Republican a few weeks before filing for a Supreme Court seat, and several other judicial hopefuls.

Anglin sued, saying S.B. 3 violated his rights to run under the party affiliation he chose based on the law in effect at the time he filed. In August, the N.C. Court of Appeals sided with Anglin and the other challengers. The General Assembly didn’t challenge the decision. Anglin will appear on the general election ballot as a Republican, along with incumbent Republican Justice Barbara Jackson and Democratic challenger Anita Earls.

Sore loser

The General Assembly in June passed Senate Bill 486, a measure barring losers in primary elections from running on another party’s ticket in the fall general election. The law affected the Constitution Party, which was certified for the fall ballot in June, after the March primary.

The party challenged the law in federal court, saying it would prevent candidates who otherwise could have run on the Constitution Party line from doing so. U.S. District Court Judge Louise Flanagan agreed. The ruling hasn’t been appealed.