State elections board moves to dismiss federal lawsuit challenging Wake D.A.

Wake County District Attorney Lorrin Freeman addresses a John Locke Foundation audience in March 2017.

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  • The N.C. State Board of Elections is asking a federal court to dismiss a Republican attorney's lawsuit challenging Democratic Wake County District Attorney Lorrin Freeman's re-election bid.
  • The suit contends Freeman is ineligible for the election because she failed to sign campaign paperwork in December.

The N.C. State Board of Elections is asking a federal court to dismiss a lawsuit challenging Wake County District Attorney Lorrin Freeman’s re-election bid.

David Blackwelder, a Republican attorney and former Wake County sheriff candidate, filed the suit Aug. 12. Blackwelder argues that Freeman is ineligible for the election because she failed to sign campaign paperwork when she filed for office in December.

Freeman won the May 17 Democratic primary with 59% of the ballots cast. She is scheduled to face Republican challenger Jeff Dobson in the Nov. 8 election.

“Plaintiff’s Complaint contains two claims. First, he argues that the State Board failed to follow state law by placing a candidate on North Carolina’s May 17, 2022, primary ballot who filed a Notice of Candidacy that failed to include a signature,” according to the motion filed Tuesday by the state elections board’s attorneys. “According to Plaintiff, the Board’s failure to hold the candidate to that requirement was not justified by any legitimate or compelling government interest, and therefore, the Board violated Plaintiff’s First and Fourteenth Amendment rights.”

“Second, Plaintiff contends that by placing the candidate on the 2022 primary ballot, and counting votes for that candidate, the State Board violated Plaintiff’s substantial right to due process as provided for in the Fourteenth Amendment,” the motion added.

“In relief, Plaintiff’s Complaint asks the Court to remove the candidate from the ballot for the November 2022 general election and replace the candidate with the runner-up from the primary election,” state board attorneys wrote. “Such relief would violate state law governing how party nominees are replaced this close to the election and infringe upon the statutorily granted rights of the relevant political party.”

“Putting aside the legally flawed nature of the relief, this relief would impose an excessive administrative burden due to the proximity of the election. The principle espoused by the Supreme Court in Purcell v. Gonzalez, counsels strongly against this Court granting relief of this nature so close to an election, especially when Plaintiff has other options available to him.”

The state board’s motion challenges Blackwelder’s case from multiple angles.

The board argues that Blackwelder waited too long to challenge Freeman’s candidacy. Once a “certification of nomination” had been issued in connection with Freeman’s May 17 primary election win, the state board had no jurisdiction to hear the challenge.

“Plaintiff’s remaining allegations make unfounded accusations that unnamed ‘democratic party operatives’ at the State Board engaged in ‘disparate treatment’ to ‘non-democratic party members,’” according to the state board’s lawyers. “He supports these allegations by referring to the recent successful petition by the Green Party to be recognized as a political party in North Carolina and the guidance that was provided to a prior candidate during the 2020 election cycle regarding the candidate filing requirements. These allegations are irrelevant to this action and Plaintiff, as an individual voter, cannot assert an injury on behalf of another person or organization.”

The elections board argues that the federal court has no jurisdiction over the case and that Blackwelder lacks legal standing to bring a complaint. The board also contends that Blackwelder has not stated a claim that a federal court could address.

“Plaintiff’s alleged injury is that he will be unable to vote for the runner-up from the May Democratic primary when he votes in the November general election,” according to the state board. “Plaintiff has failed to properly assert an actual injury to himself, much less a significant burden to his First and Fourteenth Amendment Rights. He remains free to bring an election challenge aimed at the general election and it can be heard by the State Board. Instead, he filed untimely filings with the county board and state board resulting in procedural dismissals of his protests.”

“Had Plaintiff filed an election protest for the general election on the same day he filed this action, he could have had his protest heard by the county board of elections. Instead, he has taken no action during the interim time period. Thus, to the extent any injury exists here, Plaintiff’s own choices are the sole cause of those injuries.”

The motion addressed Blackwelder’s argument that the losing Democratic primary candidate, Damon Chetson, should take Freeman’s place on the November ballot.

“[G]iven the timing of Plaintiff’s complaint, it is extremely unlikely that the names on the ballot for the general election will change, because the ballots have been prepared and are being printed,” the state election board’s lawyers explained. “Even if Plaintiff obtained a disqualification at this stage in the election cycle, and the county determined it was practical to reprint ballots, the choice of replacement falls to the local district executive committee of the political party, not the State Board or Plaintiff.”

“That body is under no obligation to select Damon Chetson, even assuming he would be willing to be a candidate. Rather, the district executive committee is free to select any other qualified person, including Freeman, as nothing in the statute prevents such an appointment.”

Blackwelder must respond to the state elections board’s motion to dismiss by Sept. 30.