Raleigh, N.C. — A divided State Board of Elections decided Saturday morning to keep a special Supreme Court primary on the books for June, despite a request from legislative lawyers to reverse that decision.
Meeting in an emergency session, the five-member panel said it wants to find the solution that was least confusing to voters in a year that has already been full of twists and turns.
"The election cycle right now is confusing enough to everybody," said Rhonda Amoroso, a Republican board member who ended up being the deciding vote on the matter.
Already, Amoroso said, voters were contending with new voter identification rules for the first time, as well as preparing for a special congressional election in June that came about as the result of a court order. Other litigation that could affect this year's elections is also pending.
North Carolina has a seven-member state Supreme Court, which has the final legal say in whether lower courts, lawmakers and others have followed the strictures of state law and the state constitution. Although putatively nonpartisan, parties take an active interest in who is elected, and the court is now closely divided between four Republicans and three Democrats.
The wrinkle that board members were trying to iron out Saturday morning has its roots in a 2015 law in which the General Assembly created retention elections for Supreme Court justices. In a retention election, only the incumbent runs, and voters decide whether to keep that justice on the bench or not. Such a system gives incumbents a good chance of keeping their seat, barring some outrageous malfeasance in office.
In December, Associate Justice Bob Edmunds, a Republican, filed to run in a retention election this year. Sabra Faires, an unaffiliated voter who is a Wake County attorney and a former legislative lawyer, challenged that law in court. Her suit said that a retention election does not comply with the state constitution's definition of an election and creates an illegal extra qualification to run for office.
Nearly a month ago, a three-judge panel ruled in Faires' favor. In turn, the state board ordered a special election.
Because of court action in another case, state lawmakers had ordered that congressional primaries be held on June 7. So, the state elections board ordered the new Supreme Court primary schedule follow the same calendar.
Two things that could have affected that scheduled happened Friday. First, the state Supreme Court ordered an April hearing in the Faires case, moving much more quickly than usual to resolve the matter. Also, lawyers who represent the state House speaker and the Senate president pro tem wrote to the board, asking the five-member panel to hold off on any new election.
The letter from the legislative staff cited a number of reasons it thought the state board should hold off, saying that the board was overstepping its authority and that the legislature may want to take action on its own.
Board members dismissed most of those reasons out of hand, saying they couldn't wait around to see what lawmakers might or might not do. One potential argument about the fact that 233 judicial candidates already on the ballot would be unable to run for the newly open seat did get some consideration.
Michael Crowell, a lawyer for Faires, pointed out that similar problems have existed for years. For example, he said, when a Superior Court judge resigns after an election filing period closes, district court judges from the same counties who have already filed to run for re-election can't jump into that race.
Board members also seemed frustrated by the last-minute intervention. They were forced to hold a hastily called emergency meeting on the matter this weekend because the state's regular primary is on Tuesday, and they would not have otherwise been able to address the legislative request before candidates are due to start filing for the Supreme Court seat on Wednesday.
"If they (the legislature) have wanted to do something about it, they have known about it for three weeks," said Joshua Malcolm, a Democratic board member.
He made the motion to stick with the current schedule. While either subsequent legislative action or a Supreme Court ruling could derail the Board of Elections' plans, Malcolm said, the current schedule gives voters the most certainty for the moment. Under the worst-case scenario, he said, votes cast for the court in June would simply be ignored. That is similar to situation in progress this week, in which the votes cast for congressional candidates on Tuesday ballots will not be tallied because the districts in which they filed to run have been invalidated.
Board Chairman Grant Whitney, a Republican, and Democratic member Maja Kricker, appeared ready to put the Supreme Court election on hold, mainly as a way to find some compromise position between lawmakers and the pressing realities of the election calendar. For a brief time, the board did entertain an election schedule that would have created a late August primary. However, a majority of the board members did not want to pursue a separate, stand-alone primary that would cost $9.5 million to run and be an extremely low-turnout affair.
Board member James Baker, a Republican, joined Malcolm and Amoroso in voting to keep the current schedule. Candidates may begin filing for the state Supreme Court seat on Wednesday, same as those who want to run for U.S. House.