A handy guide to ongoing ballot litigation in North Carolina

By: - August 22, 2018 10:45 pm

The clock is ticking in North Carolina.

Five separate lawsuits have to be resolved before voters can cast their ballots, and there are only eight days left for the courts to render resolutions.

The State Board of Elections and Ethics Enforcement must begin the ballot preparation process by Sept. 1 to comply with federal absentee voting standards.

Tick, tock.

Lawmakers have already lost all four (though one was only a partial loss) of the state court cases against them and filed notices of appeal in each one to the state Court of Appeals. Similarly, the North Carolina NAACP partially lost one of those cases and also has filed a notice of appeal – though its was to the state Supreme Court.

Gov. Roy Cooper, another plaintiff in one of the state lawsuits, was the victor in his case over constitutional amendment ballot language, but has filed a request to have the state Supreme Court intervene in lawmakers’ appeal before the Court of Appeals.

In another matter, the State Board on Wednesday lost a federal court case after members of the Constitution Party sued over not being on the ballot. Lawmakers have not yet intervened in that case, despite it being over a retroactive law they promulgated, not the State Board.

It was also reported Wednesday that House GOP members discussed possibly calling a special session, which would allow them to potentially bypass the appellate process in two of the state cases over constitutional amendments.

Tick, tock.

Things are moving fast, and each one of the five pending cases could change the final ballot that is put before the voters. Since the State Board is working with a strict deadline, it’s not expected litigation will slow down.

Here’s a guide on where each case currently stands (though, almost assuredly, there will be one or more a new documents filed shortly after publication):

Anglin v. State Board:

Chris Anglin

Chris Anglin waited until the last minute to throw his hat in the ring for a seat on the state Supreme Court as a Republican candidate, but he was first to file suit when lawmakers took that party label away from him.

Anglin is challenging Republican incumbent Barbara Jackson and Democratic civil rights attorney Anita Earls for a seat on the bench. He changed his party affiliation from Democratic to Republican on June 7 – less than a month before judicial candidate filing opened in North Carolina.

When lawmakers eliminated judicial primary elections this year, they also eliminated a requirement that candidates be registered with their party for 90 days prior to filing.

Not long afterward, Anglin changed his affiliation and filed as a Supreme Court candidate – per the rules at the time. Republican Party executive director Dallas Woodhouse, however, vowed to treat him “like the enemy he is.” And not long after that, lawmakers called a special legislative session and passed a retroactive bill that resurrected the 90-day registration requirement.

Anglin, along with another judicial candidate affected by the change (more information on that case below), argued in court that lawmakers violated his constitutional rights, and a judge agreed.

Superior Court Judge Rebecca Holt issued a preliminary injunction in the case enjoining the State Board of Elections and Ethics Enforcement from printing any election ballots that do not reflect judicial candidates Anglin’s and Rebecca Edwards’ chosen party affiliations.

That injunction is still in place.

Lawmakers filed a notice of appeal shortly after the ruling but have not yet filed any other documents in the case. There have also not been any hearings set for appellate review.

Anglin’s attorney, John Burns, said earlier this week he didn’t know what the defendants were up to or why there has been a delay given the tight ballot deadline.

He speculated that the Court of Appeals would have the “next bite at the apple,” and depending on what happens there, the state Supreme Court could get involved.

Burns said it would technically be possible for lawmakers to get their way if the lower court’s injunction was lifted and there was a delay between in the appellate court review process.

“I just think it’s important for people to know that if folks are trying to run out the clock, play four corners on this and test out their luck — that certainly is not justice, that’s procedural status,” he added.

Burns said he respects his opponent attorneys and wouldn’t think that would be their tactic, but that he and his client are in waiting mode for their next move.

Anglin has filed a “conditional withdrawal” with the State Board, which means if he ultimately does lose the case in court, he will not appear on the ballot at all.

Recent filings:

Preliminary injunction

Notice of appeal

Edwards v. State Board:

Rebecca Edwards (Photo by Melissa Boughton)

Rebecca Edwards is a judicial candidate for Wake County District Court. She changed her Republican Party affiliation to Democratic on May 30 – which does not meet the revived 90-day registration requirement.

She filed a lawsuit shortly after Anglin also alleging that lawmakers violated her constitutional rights when they enacted a law that would retroactively affect her candidacy.

Narendra Ghosh, one of the attorneys representing Edwards, argued in court that once a candidate followed and relied on preexisting election rules during an election, those rules could not be changed. (Ghosh is a board member of the North Carolina Justice Center, the parent organization to NC Policy Watch.)

He also pointed out that other candidates in Edwards’ race would appear on the ballot with party labels, almost ensuring a loss for her.

Martin Warf, an attorney representing lawmakers, argued that Anglin and Edwards did not have a vested constitutional right to run for office with their party labels.

Holt also issued a preliminary injunction in Edwards’ case so that she could remain on the ballot as a Democrat.

Two other judicial candidates were affected by the retroactive 90-day requirement, but they did not sue the State Board or lawmakers. They are Michael John Stading, of Mecklenburg — he filed for seat 1 in District Court district 26A and changed his Democratic registration to Republican on May 29 – and Kevin Grist Eddinger, of Rowan — he filed for seat 1 in District Court district 19C and changed his Democratic registration to Unaffiliated on May 14.

After Edwards’ win, Stading petitioned the State Board to also allow him to appear on the ballot with his chosen/registered party affiliation. The State Board agreed to treat Stading and Eddinger like Anglin and Edwards on the ballot, so long as the court allowed their party labels to remain.

Lawmakers have filed a notice of appeal in Edwards’ case, but have not yet filed any other documents in the case. There have also not been any hearings set for appellate review.

Recent filings:

Preliminary injunction

Notice of appeal

State Board petition ruling

Cooper v. Berger, et al.:

Gov. Roy Cooper sued lawmakers and the State Board over the ballot language for two proposed constitutional amendments.

The amendments would transfer Cooper’s appointment powers to the General Assembly for state boards and commissions and judicial vacancies. He alleged in the lawsuit that the ballot language was unconstitutionally misleading to voters.

Two members of a three-judge panel agreed, noting that both proposed amendments significantly realign Cooper’s appointment powers but neither ballot question makes mention of the executive branch of government.

They issued a preliminary injunction Tuesday blocking the two amendments from proceeding to the ballot, but stated lawmakers could appeal or come back to Raleigh to redraft language addressing the issues so that they could be placed back on the ballot without the court’s approval.

Lawmakers filed a notice of appeal Wednesday afternoon to the state Court of Appeals.

John Wester, one of Cooper’s attorneys, said attorneys for lawmakers also plan to seek a stay of the lower court’s order while they proceed with litigation.

He filed a request Wednesday to have the state Supreme Court intervene before the Court of Appeals gets involved. He pointed to the State Board’s tight deadline as the reason for the request.

Recent filings:

Preliminary injunction

Notice of Appeal

Request for Supreme Court review

NC NAACP and CAC v. Moore, et al.:

The North Carolina NAACP and Clean Air Carolina filed a lawsuit over the ballot language for four of the six constitutional amendments, also alleging they were misleading to voters.

In addition to the two amendments Cooper challenged, the organizations argued against language for the tax cap amendment and for the voter photo identification amendment.

The majority of the three-judge panel blocked the same two amendments they did in the Cooper case but rejected arguments about the other two amendments. They acknowledged that the ballot language for the two amendments might not be perfect but noted they weren’t misleading enough to amount to a constitutional violation.

The judges rejected an argument put forth by the plaintiffs (the so-called “usurper argument”) that the amendments are unconstitutional because the General Assembly was elected under unconstitutionally gerrymandered maps. The panel also ruled that Clean Air Carolina did not have standing to file suit.

The NAACP immediately appealed the panel’s ruling allowing the two amendments to appear on the ballot to the state Supreme Court and also asked to bypass the state Court of Appeals.

Kym Hunter with the Southern Environmental Law Center (Photo by Melissa Boughton)

Kym Hunter, an attorney for the NAACP, said the ballot language was not just about a struggle for power between lawmakers and Cooper.

“These cases are about making sure that the North Carolina Constitution is not amended without the free will of all North Carolinians,” she said. “At its base, our case is quite simple: only the people of North Carolina get to amend our most foundational law. Until we live in a representative democracy, that cannot happen. We are confident that the North Carolina Supreme Court will treat this matter with the seriousness it deserves.”

Lawmakers filed a response to the NAACP’s appeal asking the Supreme Court not to step in. It states that the three-judge panel erred in its decision to block two amendments from the ballot but not in its decision to let the other two proceed.

“There is no error, however, and moreover no need to even hastily review the superior court’s judgment as to the tax cap amendment or voter identification amendments being pressed by the NAACP here,” the document states.

The response also states that lawmakers plan to seek a stay of the preliminary injunction from the state Court of Appeals.

Recent filings:

Preliminary injunction

Legislative notice of appeal

NAACP appeal

Legislative response to appeal

Poindexter et al. v. Strach:

Four members of the newly recognized North Carolina Constitution Party and the party as a whole sued the State Board after it permitted the members to appear as candidates on the ballot but then removed them because of a retroactive law promulgated by the General Assembly.

They filed in federal court in the Eastern District of North Carolina.

The State Board officially recognized the Constitution Party in June, and until then, its candidates did not have ballot access. Prior to official recognition, North Carolinians also could not register for affiliation with the party.

Because of that, James Poindexter of Surry County and Jerry Jones of Greene County ran for election in the primary as Republican candidates and Gregory Holt of Craven County ran in the Democratic primary. They all lost.

After the Constitution Party was recognized and held its nominating convention, they submitted Poindexter, Jones and Holt as candidates to the State Board. They were accepted and certified. Lawmakers then passed a “sore loser” law preventing anyone who lost in a primary election from being on the ballot in November (Senate Bill 486).

The lawsuit alleges the Constitution Party members’ constitutional rights were violated when they were retroactively stripped of their opportunity to run as candidates.

U.S. District Court Judge Louise Flanagan agreed and issued a preliminary injunction enjoining the State Board from printing ballots without their names.

The State Board has not yet appealed, and lawmakers have not intervened in the case. The State Board did, however, file a request for an extension of time to respond to the original complaint in the case.

Recent filings:

Preliminary injunction

Request for extension of time

Tick, tock

The next step for all of these cases is appellate review. The question in most of the cases is whether the state Supreme Court will step in before the Court of Appeals, and the question in the federal case is whether there will be an appeal at all.

There isn’t much that could stand in the way of the State Board ballot deadline, but Gerry Cohen, who served almost four decades as counsel to the General Assembly, said the State Board could split the ballots to get a quicker move on things – one ballot for the counties and one for constitutional amendments and appellate races.

He acknowledged it would be more expensive for the counties but said it would buy the State Board about an extra week of time for ballot preparation.

State Board spokesman Pat Gannon the board has not considered separating the ballots.

PrintElect, the group that prints the ballots for the state, did not return two requests for comment about the ballot preparation and printing process.

Another possibility Cohen brought up was court action after the ballots printed to not tabulate votes if some amendment language was struck down. He used the 2016 congressional ballot as an example of that – a court struck down districts after absentee voting began; the information stayed on the ballot and voters were informed their votes would not count; the State Board didn’t tabulate the votes, and there were new primaries later that year.

“Nobody was harmed by the fact that I voted for congress and it didn’t get counted,” he added.

One other aspect to all the ballot language litigation is Republican Party executive director Dallas Woodhouse’s threats to impeach Supreme Court justices if they removed constitutional amendments from the ballot.

He apparently made the remarks at a NC Free Enterprise Foundation event last week but then walked them back later on Facebook.

Douglas Keith

Douglas Keith, counsel with the Democracy Program at the Brennan Center for Justice, called the calls for impeachment particularly troubling.

“The research shows that reelection pressure … will change [judges’] behavior on the bench,” he said.

He said judicial impeachment threats were a trend across the nation this year, and pointed to similar calls in Pennsylvania and Michigan. He also said those calls were met with public backlash.

“I would hope that if there is more talk of this in North Carolina there would be a similar response to what we’ve seen elsewhere,” he said.

Keith said the willingness to call for impeachment in the state is just an extension of lawmakers’ willingness over the past two years to exert political pressure on the courts. He added that it’s difficult for sitting judges to put those kind of pressures out of their mind.

“The impact of pressures in the election context is clear, and I think that these threats would not be made if the officials did not think that they would have an impact,” he said.

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