Legislators cannot reach back in time and change the rules of an election after the fact, a Wake County Superior Court judge ruled Monday.
Judge Rebecca Holt issued a preliminary injunction enjoining the State Board of Elections and Ethics Enforcement from printing any election ballots that do not reflect judicial candidates Chris Anglin’s and Rebecca Edwards’ chosen party affiliations.
Anglin is a candidate for the state Supreme Court who changed his affiliation from Democratic to Republican before he filed to challenge Republican incumbent Barbara Jackson and Democratic candidate Anita Earls. Edwards is a candidate for a Wake County District Court seat and changed her Republican affiliation to Democratic before she filed.
There is usually a 90-day party affiliation requirement to run for office, but Republican legislators got rid of it when they cancelled judicial primary elections this year. They then resurrected it during a special session after the judicial candidate-filing period ended, retroactively mandating that anyone who wasn’t affiliated with their party of choice for 90 days would not have a party label listed on the ballot.
There were four judicial candidates affected by the new law, but two are unopposed. Anglin and Edwards sued lawmakers, alleging the new law targeted them and violated several of their constitutional rights.
John Burns, an attorney representing Anglin, likened lawmakers’ approach to judicial election rules to that of “Calvinball,” a game first popularized in the newspaper cartoon Calvin and Hobbes, in which there are no rules and the players can make rules as they go along.
“There’s nothing fundamentally fair about moving the goal post in the middle of the game,” Burns told the court. “And that’s exactly what has been done here today.”
He argued that once his client registered with the party of his choosing, paid the filing fee and judicial filing closed, he had a vested right to be listed on the ballot with his associated party like every other candidate.
“My client can no longer comply with the language of the statute because he complied with the first statute and they put out a 90-day rule more than 90-days after,” he said. “He cannot possibly comply. That is fundamentally unfair no matter how you look at it.”
Narendra Ghosh, one of the attorneys representing Edwards, made similar points. (Ghosh is a board member of the North Carolina Justice Center, the parent organization to NC Policy Watch.)
“Once a candidate or party or voters have followed and relied on the preexisting election rules during an election, those rules cannot be changed,” he said, pointing to several court rulings over the years. “If the state tries to change the rules, that is fundamentally unfair and violates due process.”
He said that when legislatures change election rules, they typically do it prospectively to allow everyone a chance to follow the new rules.
“On the few occasions where states don’t do that, the courts stop them because it violates due process,” Ghosh said. “Now if courts didn’t stop them, what would happen? Legislatures could change the rules for candidates after they’ve qualified for the ballot; they could change the rules for absentee votes after people had already used absentee ballots; they could change the rules for voter registration after people had already voted. Those aren’t fair elections. That’s not a democracy. That’s a legislature choosing who wins, not the people.”
Martin Warf, an attorney who represents House Speaker Tim Moore and Senate President Pro Tem Phil Berger, disagreed that Anglin and Edwards had a vested right when candidate filing ended. He said if there were a vested right, it would not exist until ballots were already printed and produced.
“We’ve heard earlier to school yard references and Calvin and Hobbes, but the debate about this particular bill is not whether it is a good idea or a bad idea. That can be held outside the courthouse,” he said. “When assessing a challenge to the constitutionality of the legislation, the question is, can the legislature do what it did, and the burden of proof is on the plaintiff to say that it is not, and the presumption is that it can.”
Warf insisted that the law was non-discriminatory because it applied to all judicial candidates, not just Anglin and Edwards. He also said their not having a party label on the ballot was a “minimal burden.”
He also suggested that in some situations, legislators could have changed the law a little earlier than they did.
“It may have been perhaps even wise to do it earlier,” he said. “But that is not the question we have to look at here. The question is does this interfere with their vested right? And certainly because the General Assembly could have done it earlier does not mean they lacked the power to address it when they did.”
Holt asked a lot of questions of attorneys from both sides of the argument. Ultimately, though, she ruled that Edwards and Anglin were likely to be successful on the merits of the case and could be irreparably harmed if the ballots moved forward.
The State Board of Elections and Ethics Enforcement did not return an email from Policy Watch asking when ballots were scheduled to be printed. Absentee voting begins Sept. 7.
Edwards said she was pleased with the court ruling and excited to get back to campaigning.
“I feel like I have an ability to serve the community as a district court judge, and although we’ve made it partisan, I don’t think we should be partisan as judges,” she said. “And so I’m just glad to be able to get back to the business of running.”
Anglin said he also thought Holt made the right decision in both cases and he vowed to keep fighting.
“I’m going to continue my race to run for disaffected Republicans who are disgusted by the actions of the legislature, that the legislature has taken with respect to the judiciary and their actions with respect to myself have shown exactly why I am running,” he said. “It’s crystal clear that they want to make the judiciary a division of the legislature and that they will do anything to help their candidate win.”
His attorney, Burns, said the legislature will decide the next step of the process – namely, whether there will be an appeal or if they will all move forward with a trial.
Berger and Moore have not yet decided if they will appeal Holt’s ruling, according to what they told other media outlets.
“Republican or Democrat, ‘candidates’ shouldn’t be able to switch parties at the last minute to split the vote,” said Bill D’Elia, a spokesman for Berger, to the News and Observer.  “It’s a dirty trick that both sides of the aisle have rightfully condemned. We’re reviewing our legal options as we consider next steps.”
Similarly, a spokesperson for Moore told the News and Observer he wouldn’t commit right away to an appeal. Joseph Kyzer did, however, criticize Holt’s ruling.
“Today’s misguided ruling protects Democrats’ deliberate effort to split the vote by confusing voters about a candidate’s true affiliation, despite the state legislature’s longstanding authority to set party label rules for candidates and efforts to conform judicial races with every other public office statewide,” he told the newspaper.
Burns said no matter what happens, he is confident an appellate process would still result in a favorable result for Anglin and Edwards.
“What I think we established and hope to establish at any appellate level here is it is up to the candidate to determine what his or her affiliation is, as long as you do it within the rules, and what they did was go back and change the rules after the fact, after Mr. Anglin and Ms. Edwards could reasonably comply with the statutes,” Burns said. “That’s really what they did that was wrong but there’s a lot of water to go under this bridge before we’re done.”