@NCCapitol

@NCCapitol

Dems sue over canceled judicial primaries; Senate Republicans roll out new maps

Posted December 13, 2017 10:15 a.m. EST
Updated December 13, 2017 7:15 p.m. EST

 Election sign.

— The state Democratic Party filed suit against state legislative leaders Tuesday, saying a plan to cancel next year's judicial primaries is unconstitutional and asking the federal courts to issue an injunction.

On Wednesday, Republican senators running point for the chamber's judicial reform efforts rolled out potential new maps for judicial districts. They also sparred with the Governor's Office after the Senate committee on reform refused to let retired Wake County Superior Court Judge Donald Stephens address an afternoon meeting.

Democratic senators walked out on that meeting after Committee Co-Chairman Dan Bishop announced Stephens wouldn't be heard.

Senate President Pro Tem Phil Berger's office called the move a "stunt." Gov. Roy Cooper's press office put out a statement saying Republicans are trying to "take over the courts for political purposes" and "fear a distinguished jurist like Judge Stephens would shine a light on what they are trying to do."

The committee had invited Cooper's office to make a presentation, and the governor sent Stephens, who also filed a declaration in the Democratic Party's lawsuit. That suit quotes him extensively.

Cooper's decision bothered Senate Republicans, who complained that the move blurred lines between the executive branch and the judiciary.

The lawsuitwas filed in the U.S. District Court for the Middle District of North Carolina and names Berger, House Speaker Tim Moore and the State Board of Elections and Ethics Enforcement. Documents from the suit call the decision to cancel primaries, passed by the General Assembly's Republican majority over Gov. Roy Cooper's veto, unprecedented and irrational.

Holding partisan elections without having primaries violates the rights of the state and local parties to choose candidates of their choice, attorneys for the parties argue.

Moore's office called the suit "a new low" for Democrats who continually "litigate what they cannot legislate." Berger accused Cooper and the Democratic Party of "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."

It was Berger's Republican majority that returned North Carolina to partisan judicial elections earlier this year, also over Cooper's veto.

Canceling primaries was part of a broader plan from the legislative GOP majority to rework the judiciary, and the full legislature is expected to take up some sort of reform plan in January. Judicial appointments have been discussed, and the Senate committee heard a presentation Wednesday about the ways other states choose judges.

But a plan to keep electing judges by popular vote, but redraw judicial election districts, has already passed the House and is pending in the Senate.

Maps drawn by Senate staff and unveiled Wednesday address constitutional concerns raised with the House maps, legislators said. Rep. Justin Burr, R-Stanly, who first proposed judicial redistricting, called the changes reasonable and said the Senate was "continuing to build on the needed reforms."

Scholars have raised constitutional concerns {{a href="blogpost-17100863"}not only with Burr's proposed maps, but with current judicial election maps, which have seen only piecemeal edits over the last 60 years despite significant population shifts.

Canceling the 2018 primaries was pitched in the House as a way to buy time for redistricting discussions to happen, since filing for primaries begins in February and the legislature is out of session until January. Critics saw it as part of a partisan power grab. They warn that, without primaries to winnow the field, voters are likely to encounter lengthy ballots full of unfamiliar names – next to party labels – when the general elections are held.

They also question why primaries for a state Supreme Court race and the three Court of Appeals races scheduled for next year were canceled when those races wouldn't be affected by redistricting. The Supreme Court seat and two of those Court of Appeals seats are held by Republicans, and Democrats have argued crowded ballots favor incumbents.

The suit asks a federal judge to reinstate judicial primaries quickly, due to the February filing period. There are some 150 judicial elections scheduled for next year, most of them for District Court judgeships.

The lawsuit quotes state Democratic Party Chairman Wayne Goodwin, the chair of the Wake County Democratic Party and a trio of former judges: Stephens, state Rep. Marcia Morey, D-Durham, a former District Court judge, and Bob Orr, a former associate justice of the North Carolina Supreme Court.

Stephens argues that a primary-less election would be "more like a lottery than an informed selection process," an argument repeated throughout the suit. The retired judge also suggested what a number of Democrats have said as the GOP majority tinkers with the judiciary: That this is an assault on an entire branch of government that, in some cases, has overturned Republican-backed laws.

In remarks prepared for Wednesday's committee meeting, Stephens also questioned the need for reforms, saying he searched fruitlessly for "rot or decay that so infects that branch of government that would compel the N.C. Legislature to take immediate, drastic remedial measures to protect the public."

"I understand that the fire trucks are here," Stephens wrote in his prepared remarks. "But where is the fire? Who saw the fire? Who declared that the judicial house was on fire? You are drawing up plans to rebuild our judicial house that is not on fire and has no structural damage."

Republicans publicly calling for judicial redistricting have not criticized the quality of North Carolina's judiciary but have pointed to problematic districts. That includes unbalanced districts in Mecklenburg County, where one Superior Court district has as many residents as the other two districts put together.

There also appears to be support in the General Assembly for appointing judges instead of electing them, but it is unclear how much support. Moving away from elections would require a constitutional amendment, which takes a statewide referendum of voters.