The Pulse

Judge weighs political parties’ right to have judicial nominees appear on ballot

By: - January 24, 2018 4:12 pm

Do political parties have a constitutional right to designate their nominee on a general election ballot?

That’s the question U.S. District Court Judge Catherine Eagles must decide in litigation over the General Assembly’s decision to eliminate judicial primary elections this year.

Eagles, a President Barack Obama nominee who is no stranger to lawsuits over GOP measures, heard argument Wednesday about whether to grant a preliminary injunction, which would reinstate primary elections until the case as a whole is decided.

Attorneys for the North Carolina Democratic Party argued that eliminating judicial primaries infringed upon their First and 14th Amendment rights to Freedom of Association, or the rights of groups to take collective action to pursue the interests of its members.

“One of the things a party does is refines and eliminates candidates,” said attorney John Wallace. “Our candidates help refine the positions of our party; our part helps refine the positions of our candidates.”

The Electoral Freedom Act, which eliminates the judicial primaries, opens ballots up to anyone who wants to run for election — they can even change their voter registration to the party they want to be associated with the same day they file to become a candidate.

Wallace said this could lead to people purporting to be a Republican or a Democrat without actually representing the collective wisdom of that particular party.

Martin Warf, who represents the legislative defendants in the case, argued that there are other ways a political party can designate a nominee than through a primary. The only process he could think of as an example was endorsements.

Eagles pointed out that even if a political party endorsed a candidate, the Electoral Freedom Act did not provide a way for that choice to be meaningful — it would not show up on the general election ballot.

“How can they select a candidate when the law allows candidate self-selection?” she asked.

Warf maintained his argument about endorsements.

“As a party, who do you want to back? That choice is not infringed upon at all,” he said. “What the First Amendment does not allow is for the party to dictate to the state: ‘We would like a primary and that’s it.'”

He added that the issues of judicial redistricting and selection could interfere with the primaries if they were reinstated.

“There is an amendment that could be put on the May 4 ballot that could make this whole case moot if chosen,” he said, referring to a potential merit selection plan that lawmakers have discussed.

If those plans did not come to fruition or if Eagles decided the case for the Democratic Party, Warf said there would be “plenty of time” for a primary between the current June candidate filing period and the November general election.

James Bernier, special deputy attorney general, represented the state and the Board of Elections and Ethics Enforcement. He agreed with Warf that the Democratic Party did not have a right to designate a nominee on the election ballot.

“They want to limit access to the ballot,” he said of the plaintiffs. “We’ve opened up access to the ballot to everyone who wants to run.”

He added that if Eagles granted the preliminary injunction, it would only cause confusion. Further, he said, if lawmakers are successful in their judicial redistricting efforts, there could be an additional primary election which would require new candidate filing and more money.

Another attorney for the plaintiffs, Eddy Speas, of Poyner Spruill, disagreed. He told Eagles that the striking thing about the case was that no one had really articulated the government’s interest in eliminating the primaries.

“We think, we speculate that some time in the next little bit we might or we might not redistrict judicial lines,” he said of all that had been argued.

Speas added that the other remarkable part of the case was that there was no case law on the plaintiffs’ argument because “no legislature in the history of this country has thought to eliminate primaries or process.”

“It is anti-democratic,” he said, waving his hands to make a point. “It is contrary to our form of government.”

Eagles said she would take their arguments under advisement and make a decision at a later time.

“I appreciate time is short,” she said. “It always seems to be.”

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