News: CJ Exclusives

Party disclosure bill could bring courts into election process again

Democrats say S.B. 3 changes election rules after the process is under way; Republicans say it would prevent voter confusion, especially in Supreme Court race

Justices of the N.C. Supreme Court, 2018 (Photo from Justice Barbara Jackson's website)
Justices of the N.C. Supreme Court, 2018 (Photo from Justice Barbara Jackson's website)

Chris Anglin was a relatively unknown late addition to a state Supreme Court race. The General Assembly propelled him into the spotlight by passing Senate Bill 3.

S.B. 3, the Party Disclosure/2018 Judicial Races Act, requires candidates for judicial races to be registered with the party label they’re using for at least 90 days before filing.

If a candidate hadn’t registered with a party within the timeframe, then no party affiliation would appear on the ballot. The bill also allows candidates to withdraw at any time before Aug. 8.

Anglin, a long-time registered Democrat, changed his registration to Republican a few weeks before filing in the race between incumbent Justice Barbara Jackson, a Republican, and civil-rights lawyer Anita Earls, a Democrat.

Republicans dashed back to Raleigh on Tuesday for a special session. The stated reason was to pass legislation known as House Bill 3. It strips from ballots descriptions of what constitutional amendments would do.

The party affiliation question wasn’t mentioned by House Speaker Tim Moore, R-Cleveland, in a post on his website about the special session. S.B. 3 was introduced several hours after the session convened. Republicans argued the bill would restore the 90-day party affiliation rule for judicial races. The rule was left out of the Electoral Freedom Act of 2017, which, among other things, eliminated judicial primaries in the 2018 election cycle.

During debate over S.B. 3, several Republicans said the bill was intended to prevent Anglin from confusing voters and possibly reducing Jackson’s tally at the polls. Anglin has made statements claiming he’s a “constitutional Republican,” but he hired long-time liberal Democratic strategist Perry Woods to run his campaign.

The Supreme Court contest is the only high-profile statewide contest on the November ballot. Its outcome also could sway the court to the left. Democrats now hold four of the seven seats, but Democratic Justice Sam Ervin IV has voted with Republicans in several split decisions.

If Earls replaced Jackson, Democrats would hold a 5-2 edge.

Democratic Gov. Roy Cooper is expected to veto the bill. He has until 11:59 p.m. Aug. 3 to do so, leaving Republicans in a time crunch to override his veto. The Bipartisan State Board of Elections and Ethics Enforcement said it needs the ballot language finalized by Aug. 8 to prepare more than 1,400 ballot versions for the Nov. 6 elections.

Democrats almost uniformly rejected the bill when it was introduced. Sen. Joel Ford, D-Mecklenburg, was the only Democrat to vote for it.

Democratic lawmakers criticized their Republican colleagues for changing the rules late in the game.

“You ever hear the expression, ‘Hoisted on your own petard?’” Senate Minority Leader Dan Blue, D-Durham, quipped to Republicans during committee debate on the bill.

“You don’t like the outcome of this filing process. But it shows you that old [proverb], if it ain’t broke, don’t fix it. But you decided to fix it, and you don’t like it,” Blue said on the Senate floor. “Let me say this to you. If you have your candidates and the laws you drafted, then you need to let them stand.”

“If you want to change the rules, we should change them going forward in 2020, or 2019, or whenever we have the next election,” said House Minority Leader Darren Jackson, D-Wake. “But it’s not fair to change it after the filing is already closed and the game is already started.”

Republicans pushed back against the Democrats’ line of argument, with some claiming the bill was necessary because Anglin was deceiving the voters about his party affiliation.

“You’ve got a lifelong Democratic candidate out there who, at the last minute, decides since there’s only one Republican nominee that he decides he wants to be a Republican. … He saw an opportunity,” Sen. Jerry Tillman, R-Randolph said. “Folks, he did that for one reason. He wanted to rig it so he would split the Republican vote.”

Gerry Cohen, former special counsel to the General Assembly, said Republicans’ actions could backfire.

“The long-term effect of this may be raising Chris Anglin’s profile and making him into a martyr.” Cohen said. “This could torpedo Jackson’s campaign.”

If the legislature overrides a Cooper veto of S.B. 3, then Anglin could lose his party identification on the ballot.

Anglin also could have standing to challenge it in court.

Cohen said Anglin could argue his due process rights were violated when lawmakers changed the rules after candidate filing ended.

“These changes are like changing the fair catch rules [in football] when the ball is in midair,” Cohen said.

With the election fast approaching, the court could order an injunction to delay implementation of the law until the matter is settled. If so, Anglin would retain the R next to his name on the ballot.

“I think that at the end of the day, what you’d see is that the Republicans would argue that the election is right around the corner and they have to print ballots, there’d be some sort of [injunction] to get that done, and any sort of legal action would be expedited,” Chris Sinclair, a Republican consultant, said.

First, Anglin would have to sue. If he did, Cohen said, the case would be a slam dunk for the plaintiff.

“With this litigation, the state has zero legs to stand on,” Cohen said.

Sinclair doesn’t see it that way.

“We’ve had these sort of legal shenanigans by the Democrats ever since redistricting started. They would just file lawsuits,” Sinclair said. “They couldn’t win in the court of public opinion, at the elections, or at the ballot box, and they can’t win in the legislature because they have no power.”

Carolina Journal intern Julie Havlak provided additional reporting for this story.