N.C. Democratic Party v. Berger
N.C. Democratic Party v. Berger
Opinion of the Court
Last fall the North Carolina General Assembly abolished primaries for partisan judicial elections in 2018. No other mechanism was provided to reduce the number of candidates on the general election ballot. Candidates self-designate party affiliation and may change party affiliation as late as the day of filing. This change burdens the associational rights of the plaintiff political parties by impeding their ability to focus support on one candidate and to advance their political and electoral goals in the general election. The defendants have offered a legitimate governmental interest in this change as to elections of superior and district court judges, as the legislature plans to redistrict these seats this year and primaries using current district lines may be unnecessary and will cause confusion if and when the redistricting is complete. The defendants have made no showing of any governmental interest supporting the abolishment of a mechanism to narrow the field in partisan appellate judicial races, as those judges are elected statewide and are not subject to redistricting.
The plaintiff political parties are not likely to succeed on the merits of their claim that this statute unconstitutionally infringes their First Amendment rights of association to the extent their claim concerns partisan superior and district court judicial races. The plaintiff political parties are likely to succeed on the merits of their claim that this statute infringes their First Amendment rights of association as to partisan appellate judicial races and have otherwise met the requirements for a preliminary injunction. The motion for a preliminary injunction will be granted in part.
I. Background and Facts
The North Carolina Constitution requires that the people elect the judges and justices of the district courts, superior courts, and appellate courts. N.C. Const. art. IV, §§ 9, 10, 16. Justices of the supreme court and judges of the court of appeals are elected statewide, N.C. Const. art. IV, § 16, while superior and district court judges are elected within local court districts. N.C. Const. art. IV, §§ 9, 10.
For many years, North Carolina citizens exercised this right through partisan elections with primaries or direct party nomination. See Brian P. Troutman, Party Over? The Politics of North Carolina's "Nonpartisan" Judicial Elections ,
Until recently, North Carolina law allowed for judicial elections without primaries only when a judicial vacancy at the superior court or appellate court level occurred after the primary but more than 60 days before the general election.
In 2016 and 2017 the General Assembly made numerous changes to the state election laws, including enacting laws restoring the partisan method of judicial elections for the district courts, superior courts, and appellate courts. See S.L. 2016-125, §§ 21(a), 21(h) (restoring partisan elections for the court of appeals and the supreme court, and effective January 1, 2018); S.L. 2017-3, §§ 5, 14 (restoring partisan elections for superior and district courts, also effective January 1, 2018). Both S.L. 2016-125 and S.L. 2017-3 provided for semi-closed primary elections
*809In October 2017, the General Assembly made additional changes to election procedures, including the provisions related to judicial elections challenged here. See S.B. 656, ratified as S.L. 2017-214. Most of the provisions of S.L. 214 were directed at expanding ballot access and were not limited to judicial elections. For example, it reduced the number of signatures required to recognize groups as political parties and for unaffiliated candidates to be listed on the ballot. S.L. 214, §§ 1, 2(a). This law became effective on January 1, 2018. S.L. 214, § 5.
S.L. 214 also made a number of changes specific to judicial elections in 2018. As a result, in 2018 judges will be elected through a process substantially different from both historical practice and from the election process for other, non-judicial partisan races.
First, and specifically at issue in this case, S.L. 214 eliminated party primaries for judicial candidates seeking election to the district courts, superior courts, and the appellate courts for the 2018 elections only. See S.L. 214 § 4(a). Primaries were not eliminated for any non-judicial elections, which are scheduled for May 8, 2018. Doc. 14-1 at ¶ 19; Doc. 34 at 3. For judicial races, all candidates will appear only on the general election ballot, see S.L. 214, § 4(a), and the candidate who receives the most votes in the general election will win. See
Second, the filing period is different: S.L. 214 establishes a candidacy filing period from June 18 to June 29, 2018, for judicial candidates, S.L. 214, § 4.(a); the candidacy filing period for non-judicial races is from February 12, 2018, to February 28, 2018. See N.C. State Bd. of Elections & Ethics Enf't, Candidate Filing Information, available at http://www.ncsbe.gov/Elections/Candidate-Filing (last visited on 1/30/2018).
Third, access to the ballot as a candidate is significantly more open for judicial candidates than for other races. Unaffiliated candidates in non-judicial elections must file petitions signed by a certain number of registered voters before they qualify to be placed on the ballot. S.L. 214, § 2(a).
*810Finally, S.L. 214 permits a judicial candidate to change party affiliation immediately before filing for office. See S.L. 214 § 4(b) (containing no minimum requirements for party affiliation for judicial elections in 2018).
As a result of these changes, all candidates for judicial office will appear on the general election ballot. For each race, each candidate will be identified by the political party or unaffiliated status, as chosen by the candidate. There is no majority-vote requirement, so if multiple candidates file, it is entirely possible, even likely, that a candidate with only a plurality of votes will win. See S.L. 214, § 4(k).
The legislative history indicates and all parties agree that the General Assembly's stated purpose for cancelling primaries for all judicial elections in 2018 was so the legislature would have more time to enact legislation redrawing the boundaries of existing judicial Superior and District court districts. Legislation to redistrict these seats had been introduced in the House during the summer of 2017, Doc. 14-4 ¶ 6, and a committee was appointed to study the matter early in the fall. Doc. 14-4 at ¶ 9. During floor debate on the bill that became S.L. 214, the representative who moved to pass the bill over the governor's veto stated that the reason judicial primaries were abolished was so the legislature could "take our time" in redistricting judicial seats. Doc. 36 at 9 (statement by Representative Lewis); see also Doc. 14-4 at ¶ 14; Doc. 36 at 11 (statement by Representative Lewis during floor debate that no districting was contemplated for appellate judicial races); Doc. 34 at 19 (defendants' brief stating that "[n]ew boundaries, if enacted, will not be in place in time for the filing of judicial candidates in February, and it is unlikely that the implementation of any new boundaries will be complete in time for the May primaries").
There will be some 150 judicial races on the ballot in 2018. Doc. 14-7 at ¶ 19. Although the exact breakdown is not in the record, it appears to include at least one Supreme Court race, three Court of Appeals races, more than 30 superior court races, and more than 115 district court races. Doc. 36 at 12 (statement by Representative John during floor debate). The appellate races will appear on the general election ballot statewide, while the superior and district court races will appear on local ballots.
II. This Lawsuit
Some two months after the law was enacted, the plaintiffs-the North Carolina Democratic Party and seven county Democratic party organizations-filed this lawsuit against the State of North Carolina; the North Carolina Bipartisan State Board of Elections and Ethics Enforcement; Kim Strach, in her official capacity as the Executive Director of the State Board; Phillip E. Berger, in his official capacity as the President Pro Tempore of the North Carolina Senate; and Timothy K. Moore, in his *811official capacity as the Speaker of the North Carolina House of Representatives. The plaintiffs contend that the abolishment of a primary for partisan judicial elections infringes upon their fundamental rights of association in violation of the First and Fourteenth Amendments to the United States Constitution. Doc. 2 ¶ 2.
At the same time, the plaintiffs moved for a preliminary injunction. Doc. 14. They ask the Court to enjoin enforcement of Section 4(a) of S.L. 214 and seek an order to restore the status quo for judicial elections before enactment of S.L. 214. Doc. 14 at 2-3. The Court ordered expedited briefing, which has been completed; held a hearing on January 25, 2018; and authorized supplemental briefing that also has been completed.
III. Preliminary Issues
The defendants contend that the Court lacks jurisdiction to decide this matter for several reasons. None of these arguments have merit.
First, the defendants contend this case is nonjusticiable. However, it is well established that the federal courts have jurisdiction to hear First Amendment challenges to state election laws. See, e.g., Eu v. San Francisco Cty. Democratic. Central Comm. ,
Second, the defendants contend that the plaintiffs lack standing. However, it is well established that state and local political parties have standing to challenge election laws that they allege infringe on their First Amendment associational rights. See, e.g., Wash. State Grange v. Wash. State Republican Party ,
Finally, the defendants assert that the State of the North Carolina and the North Carolina Bipartisan State Board of Elections and Ethics Enforcement are entitled to Eleventh Amendment immunity. Doc. 34 at 11-12. Even if this is so, this *812does not deprive the Court of jurisdiction over the entire case. The defendants do not contend that the Executive Director of the State Board is not a proper party, nor do they contend that she is immune from suit. Indeed, the Supreme Court has made it clear that prospective injunctive relief against a state officer is not prohibited by the Eleventh Amendment. Ex Parte Young.
IV. The Motion for Preliminary Injunction
Preliminary injunctive relief is an extraordinary remedy involving the exercise of far-reaching powers that courts should use sparingly. Scotts Co. v. United Indus. Corp. ,
A. Likelihood of success on the merits
"The First Amendment protects the right of citizens to associate and to form political parties for the advancement of common political goals and ideas," Timmons ,
"It is also clear that States may, and inevitably must, enact reasonable regulations of parties, elections, and ballots to reduce election-and campaign-related disorder." Timmons,
Thus, not every burden on a political party's preferences constitutes a burden on the right of association, and not every burden on the right of association is unconstitutional. see *813Anderson v. Celebrezze ,
As explained in Anderson , a court
must first consider the character and magnitude of the asserted injury to the rights protected by the First and Fourteenth Amendments that the plaintiff seeks to vindicate. It then must identify and evaluate the precise interests put forward by the State as justifications for the burden imposed by its rule. In passing judgment, the Court must not only determine the legitimacy and strength of each of those interests, it also must consider the extent to which those interests make it necessary to burden the plaintiff's rights. Only after weighing all these factors is the reviewing court in a position to decide whether the challenged provision is unconstitutional.
Anderson ,
Thus, when applying the Anderson - Burdick analysis, courts consider first "the character and magnitude" of the burden that the challenged provision imposes on associational rights. Marcellus ,
The plaintiffs contend that § 4(a) of S.L. 214 infringes on their associational rights in a number of different ways, all of which are related to the abolishment of the primary election in what are now partisan races. They ask the Court to enjoin enforcement of § 4(a), the section of S.L. 214 that abolished primaries for 2018 judicial elections. The defendants contend that political parties have no associational right that has been harmed by the abolishment of the primary election.
None of the parties have identified another state that elects officials using only a general election regardless of the number of candidates. Nor has any party identified a state that used such a process in the recent past. No doubt this is because states have decided that limiting the number of candidates on the general election ballot better serves the public good; indeed, the Supreme Court has long recognized that states can undertake reasonable regulations to reduce the number of candidates on the general election ballot in order "to prevent the clogging of its election machinery, avoid voter confusion, and assure that the winner is the choice of a majority, or at least a strong plurality, of those voting, without the expense and burden *814of runoff elections." Bullock v. Carter ,
Given that it is, at most, highly unusual for a state to decide that it is good practice to have general election ballots with multiple statewide and local races with multiple candidates from each party, it is not surprising that the litigants cannot locate a case discussing whether such a decision violates First Amendment associational rights. See Doc. 14-1 at ¶ 15. As best the Court can tell, the relevant Supreme Court cases discussing relevant associational rights all arise in the context of election systems that involve primaries or other methods restricting access to the general election ballot. These cases tend to be directed toward the state's interests in regulating elections and not the state's interests in holding a general election without any such restrictions. And, of course, the fact that a state has a legitimate interest in regulating the numbers of candidates on the ballot does not necessarily mean that the state must so regulate.
While no Supreme Court precedent is controlling, there are several cases providing some guidance. In California Democratic Party v. Jones the Supreme Court emphasized the importance of the primary election in a case challenging a California law prohibiting political parties from excluding non-party members from voting in their primaries.
Finally, while primaries of one sort or another are the usual means for winnowing down the candidates in modern elections and have historically been the method *815used in North Carolina, there are other methods. For example, in New York State Board of Elections v. Lopez Torres , the Supreme Court upheld a nominating process for judicial candidates involving party conventions against an individual candidate's challenge.
It is clear from Washington State Grange that the plaintiffs here have no absolute right to use the general election ballot to identify the party's nominee for a judicial office. It is clear from Lopez Torres and other cases that a primary election is not the only way a state can constitutionally reduce the number of candidates for the general election and, thus, that political parties cannot demand that states choose the winnowing-down method that the political parties prefer.
On the other hand, all of these cases, particularly Washington State Grange , support the view that political parties do have associational rights that are burdened by potentially confusing ballots with multiple candidates claiming to be representatives of the party and by a system, like the one at issue here, that allows candidates to decide what party affiliation will be listed on the ballot. see Wash. State Grange , 552 U.S. at 451-52,
With these principles in mind, the Court turns to S.L. 214. Applying the Anderson - Burdick test, the Court will weigh the "character and magnitude" of the burden that S.L. 214 imposes on the parties' associational rights against the interests that the State contends justify that burden. The Court will then consider the extent to which the State's concerns make the burden necessary.
It is evident that section 4(a) of S.L. 214 burdens political parties' associational rights. see Wash. State Grange , 552 U.S. at 451-52,
Moreover, because S.L. 214 includes no minimum time requirement for party affiliation, in the absence of a primary or other winnowing-down process, the plaintiffs cannot prevent persons who do not actually support its aims from appearing on the general election ballot with the plaintiffs' party designation; by comparison, a primary or another winnowing-down process would allow the party to oppose such judicial candidates who file as Democrats but who do not genuinely support the plaintiffs' positions and principles. Jones ,
Without a primary or some other mechanism to narrow the field of candidates on the general election partisan ballot, the ability of political parties like the plaintiffs to provide support for their chosen candidate and to leverage that support in other races is restricted and the possibility of confusion and deception arises. see Bullock,
Nonetheless, the burden on the parties' interest is not severe. No political party has a right to have its nominee listed as such on the general election ballot, Wash. State Grange , 552 U.S. at 453 n. 7,
Having concluded that the plaintiffs' associational rights are burdened but not severely, the Court considers the reasons proffered by the state in justification of the burden. see Wash. State Grange , 552 U.S. at 451-52,
The Court concludes that the legislature's explanation is both legitimate and sufficiently weighty to justify the one-time cancellation of the 2018 judicial primaries for superior and district court judges. District and superior court judges are elected from particular districts, and the state could reasonably conclude that it is likely *817enough to enact new boundaries for such districts this year that the normal filing period and primary date are not workable. The lack of a primary or other winnowing process applies only for the 2018 election and there is no evidence tending to show that any particular local general election ballot will be overwhelmed with numerous multi-candidate races. see Wash. State Grange , 552 U.S. at 449-50,
By comparison, the General Assembly's articulated reason-gaining more time for redrawing superior and district court district lines-does not apply at all to appellate judicial races, as appellate judges are, by constitutional requirement, elected statewide. N.C. Const. art. IV § 16. The defendants have offered no explanation for why the likelihood of new local judicial district lines makes it appropriate to abolish primaries for other judges elected statewide. See Doc. 36 at 11 (statement by Representative Lewis during floor debate that no districting was contemplated for appellate judicial races and offering no explanation in response to questions for why abolishment of primary for appellate races was needed). Nor have the defendants offered any other justification, in briefs or in evidence, for prohibiting any process to reduce the number of candidates for appellate judgeships who will appear on the general election ballot.
As the Supreme Court instructed in Timmons , a court also should examine "the extent to which the State's concerns make the burden necessary."
Further, the character and magnitude of S.L. 214's burden is more substantial for appellate judges than for local judges. These judges run statewide, and in 2018 these partisan races will lead the statewide ticket.
This burden is not hypothetical. In 2014, when a vacancy on the court of appeals was decided without a primary, 19 candidates were on the general election ballot. Doc. 14-1 at ¶ 16. After the 2014 general election, the State Board of Elections issued a report on voter wait times, Doc. 14-6 at ¶ 3, which among other things indicated significant problems with voter confusion in the court of appeals race; in counties with certain kinds of voting machines, this confusion and the long ballots were contributing factors to delays. Id. at 8 (noting that the spoilage of ballots resulting from voter confusion over the court of appeals race as contributing to the need to change paper rolls more often, thus removing a voting machine from availability, and, later, noting the long ballot contributed to voter wait times). The winner in that race received only 23% of the vote, just as had happened in 2004 when there were eight candidates for a supreme court seat. Doc. 14-1 at ¶ 16.
This year, the record indicates that at least four statewide judicial races will be on the ballot, giving rise to a high likelihood of several multi-candidate races. Doc. 36 at 12. A cluttered ballot threatens the freedom of political parties to join together to further common beliefs. see Jones ,
For these reasons, the statutory provision abolishing primaries for appellate judges and justices while requiring such elections to be partisan, providing no other process to winnow down candidates for the general election ballot, and allowing candidates to self-designate their political party affiliation and to change party affiliation as late as the filing date is likely unconstitutional. Given the over-inclusive nature of S.L. 214, § 4(a) and the General Assembly's lack of any stated interest in cancelling judicial primaries for the appellate courts, the Court concludes that the State's interest is likely not sufficient to justify burdening the plaintiffs' well-established associational rights. As to the appellate court races, the plaintiffs have shown a clear likelihood of success on the merits.
However, as to the district and superior courts, the plaintiffs have not shown a clear likelihood of success on the merits. The burden is lower at the local level and the state has proffered a facially valid legitimate interest in reducing voter confusion in the likely event that the legislature redraws judicial districts for these courts.
B. Irreparable Harm
A party seeking a preliminary injunction must make a "clear showing of irreparable harm" that is "actual and imminent." Scotts ,
At the hearing on the motion, the Legislative Defendants argued that there is no *819imminent harm, since a judicial primary could easily be held later in the summer, before the General Election, should the plaintiffs ultimately prevail on the merits. The State defendants did not disagree. This is not ideal, since special elections increase costs, as the Legislative Defendants have repeatedly argued in other cases. See, e.g. , Legislative Defendants' Position Statement, Doc. 161 at 10, Covington v. N.C. (M.D.N.C. filed July 6, 2017) (No. 15-CV-399). Special elections have their own set of problems otherwise. see Covington v. N.C. , No. 15-CV-399, Memorandum Opinion, Doc. 191, at 2-3, 40-41 (M.D.N.C. Sept. 19, 2017) (noting that special elections may have the effect of confusing voters, raising barriers to participation, and depressing voter turnout); see also Jackson v. Edgefield Cty., S.C. Sch. Dist. ,
Taking these factors into account, the Court concludes that the plaintiffs have shown irreparable harm as to the appellate judicial races.
C. Balancing the equities
The presumption of constitutionality that attaches to legislative acts "is not merely a factor to be considered in evaluating success on the merits, but an equity to be considered in favor of applicants in balancing hardships." Walters v. Nat'l Ass'n of Radiation Survivors ,
D. Public Interest
The defendants contend that eliminating judicial primaries in 2018 is in the public interest, principally because it is unlikely that judicial redistricting would be complete in time for the May primaries. Doc. 34 at 19. This reason, of course, does not apply to appellate judicial races. The defendants have offered no other public interest in support of the elimination of judicial primaries for appellate judgeships.
The plaintiffs have shown that there is a history in North Carolina of multi-candidate judicial contests when there is no primary. Doc. 14-1 at ¶ 16. They also have shown that in the 2014 general election, 19 candidates ran for a single court of appeals seat, which contributed to longer voter wait times and caused substantial voter confusion. Doc. 14-6 at 7-8. Likewise, they *820have shown that eliminating primaries for the appellate judicial races would likely lead to no candidate receiving a majority of the vote, Doc. 14-1 at ¶ 16, 17, and cause voter confusion. See Doc. 14-6 at 7-8; Doc. 14-3 at ¶¶ 15-16. The Supreme Court has long recognized the public interest in attempting to ensure that elected officials enter office with the support of a majority of voters, Williams,
In view of these principles and the litigants' positions, the Court is satisfied that an order enjoining enforcement of § 4(a) as to appellate judges is in the public interest.
V. Conclusion
The plaintiffs have shown a likelihood of success on the merits as to their claim that § 4(a) of S.L. 214 violates their constitutional rights under the First and Fourteenth Amendments as to appellate judicial races in 2018, but they have not shown a likelihood of success on the merits as to superior and district court races in 2018. As to appellate judicial races, the plaintiffs also have shown irreparable harm, and the balance of the equities and the public interest favors the plaintiffs. Therefore, the motion for preliminary injunction will be granted as to appellate races and denied as to superior and district court races.
It is ORDERED that:
1. The plaintiffs' motion for preliminary injunction, Doc. 14, is GRANTED in part .
2. The defendant Kim Strach, the Executive Director of the North Carolina Bipartisan State Board of Elections and Ethics Enforcement, is ENJOINED from enforcing § 4(a) of Session Law 214 as to appellate judicial races, pending final resolution of this case.
3. The motion is otherwise DENIED .
The Court omits internal citations, alterations, and quotations throughout this opinion, unless otherwise noted. see United States v. Marshall ,
In 1996, nonpartisan elections were established for superior court judges. See S.L. 1996-9, 2d Extra Session, §§ 7, 24 (providing for a nonpartisan primary election method for superior court judges for elections conducted in 1998 and thereafter). Nonpartisan elections for district court judges were established in 2001. S.L. 2001-403, §§ 1, 13 (nonpartisan election of district court judges, effective January 1, 2002). And in 2002, the General Assembly changed the state appellate courts to a nonpartisan method of election, effective for primaries and elections held on or after January 1, 2004. See S.L. 2002-158, §§ 7, 16 (providing for the nonpartisan election of appellate judges and justices)
A semi-closed primary is a primary election that allows unaffiliated voters to participate in a party's primary, if the party allows. By comparison, in a closed primary, only registered party members can vote in their own party's primary.
For example, to be placed on the ballot in a non-judicial statewide race, an unaffiliated candidate must file a petition supporting their candidacy that is signed by a number of qualified voters equal to 1.5% of the total number of voters who voted in the most recent general election for Governor. S.L. 214, § 2(a). Additionally, the petition must contain at least 200 signatures from no less than three North Carolina congressional districts.
Counsel for the State Board confirmed this at the January 25, 2018, hearing on the motion for preliminary injunction.
There are other requirements, such as paying a filing fee, complying with campaign finance disclosure rules, and, for superior or district court position, residency requirements. See, e.g., S.L. 214, § 4(d), (g), (h); N.C. Gen. Stat § 163A-187 ; N.C. Gen. Stat. § 163A-1418 ; see also N.C. State Bd. of Elections & Ethics Enf't, Guide for Candidates for Judicial Office in 2018, available at http://www.ncsbe.gov/Portals/0/Documents/CandidateGuideJudicialOffice2018.pdf (last visited 1/30/2018).
Counsel for the State Board of Elections confirmed this interpretation of S.L. 214 at the January 25, 2018, hearing on the motion for preliminary injunction. See also N.C. State Bd. of Elections & Ethics Enf't, Guide for Candidates for Judicial Office in 2018, available at http://www.ncsbe.gov/Portals/0/Documents/CandidateGuideJudicialOffice2018.pdf (last visited 1/30/2018).
The situation here is different, for example, from that which arises when there is a late-occurring vacancy, when North Carolina has historically had no-primary general elections.
The Court takes judicial notice that the governor, the lieutenant governor, and the Council of State were elected in 2016 to four year terms. N.C. State Bd. of Elections & Ethics Enf't, 11/08/2016 Official General Election Results-Statewide, available at http://er.ncsbe.gov/?election_dt=11/08/2016&county_id=0&office=COS&contest=0 (last accessed 1/30/2018); see also N.C. Const., art. III, §§ 2 (1), 7 (1), 8. The Court also takes judicial notice that neither United States Senator is up for reelection in 2018. N.C. State Bd. of Elections & Ethics Enf't, Online Interactive Election Results, available at http://www.ncsbe.gov/Election-Results (election results indicating that Senator Tillis was elected in 2014 and that Senator Burr was reelected in 2016) (last accessed 1/30/2018); see also U.S. Const. art 1, § 3.
Reference
- Full Case Name
- NORTH CAROLINA DEMOCRATIC PARTY v. Phillip E. BERGER
- Status
- Published