A game with changing rules

Calvin and Hobbes, the titular characters in a beloved comic strip, were fond of playing a game called Calvinball. The rules of Calvinball, if you could call them that, were always made up as the game went along, with the only constant being that the game could never be played under the same rules twice.

As candidate filing continues for judicial elections in North Carolina, aspirants in many counties are stuck playing what resembles a large-scale game of Calvinball, with legislators continuing to fiddle with the state’s judicial districts on the fly, and candidates caught in the middle as they wait for legislators to override an anticipated gubernatorial veto.

Legislators left town for the weekend on June 15 thinking that Gov. Roy Cooper would allow Senate Bill 757, which redraws judicial districts in Wake and Mecklenburg counties, to become law without his signature. But later that evening, in the final hours before the constitutional deadline for a veto, Cooper’s office sent a veto message to the Senate’s clerk, temporarily delaying the bill’s passage into law until after candidate filing for judicial elections began on June 18.

The Senate overturned Cooper’s veto on June 19 on a straight party-line vote, and the House did the same the following afternoon, meaning that the changes are now law.

SB 757 redraws superior court district lines in Mecklenburg County, replacing its three districts with eight new ones, and creates district court districts in Mecklenburg and Wake counties, where those judges had been elected countywide. It also redraws district lines for superior court judges in New Hanover and Pender counties, which span districts 5A, 5B and 5C. Pender, previously divided between 5A and 5B, is now entirely in 5A.

Judges’ dread

The law applies to all seats that are up for election in those counties in 2018, and so candidates—and, according to multiple reports, even some election workers—were left in a state of uncertainty on the first days of the filing period.

As the veto was overridden, many sitting district court judges were in Wrightsville Beach for their summer conference. Judge Tom Jarrell, the chief district court judge in Guilford County who is the current president of the North Carolina Association of District Court Judges, said that the uncertainty over the state of the law was frustrating to judges, who are trained to follow and apply laws to the letter, and who want to make sure that their paperwork is filed correctly and in a timely manner.

“Those of us that have to file in 2018 realize what a difficult task the Board of Elections has in sorting out the current status of the filing period and the law, and there is some frustration among the judges who are running from the districts that have been subject to this legislation,” Jarrell said. “Everyone has been following it pretty closely.”

Some candidates apparently chose to wait it out. As Lawyers Weekly went to press on June 21, candidate filings in Wake and Mecklenburg counties were dramatically light, although they were expected to get back on track after the House finalized the veto override.

Under the new law, Mecklenburg’s new district and superior court districts are identical. Wake will elect district court judges in six districts, but those will differ from the six districts used for superior court. The law also creates a new superior court seat in Mecklenburg and two new district court seats in Wake.

Any given Monday

Meanwhile, a fresh veto battle looms over House Bill 717, which was approved by the legislature on June 15 and proposes even more far-reaching changes to the courts. HB 717 would scramble the state’s judicial divisions, reducing their number from eight to five, effective July 1 of this year. It would also rearrange judicial districts for 12 of the state’s 100 counties, also effective for this year’s election.

Cooper has 10 days in which to veto the bill, which he is widely expected to do. If he sticks to form, expect a veto in the late hours of June 25. Candidate filing closes midday on June 29, but candidates wishing to withdraw their candidacies and re-file need to do so at least three days before the end of closing.

Josh Lawson, general counsel at State Board of Elections & Ethics Enforcement, said that his office is following the situation closely, but can only apply laws as they have been enacted, and cannot preemptively apply potential new laws, even if the laws seem likely to change. He said it was unclear how candidates in the counties affected by HB 717 would handle the current uncertainty.

“Even if the veto was overridden immediately, the law would not become law within the time that a candidate would need to withdraw their candidacy and refile,” Lawson said. “So the stakes are very high for candidates who are seeking to file under the laws that apply on any given day.”

When asked what would happen if a bill affecting the current election does not become law until after the filing period had closed, Lawson said that either the state board of elections as a whole, or the courts, would have to figure out how to appropriately apply the law.

“There is a high probability that the courts would be the ones to end up playing that role,” Lawson said. “Election laws in North Carolina are heavily scrutinized, and it’s frequently the case that these matters are ultimately resolved elsewhere.”

Improv night on Jones Street

This will be the first time that candidates for district courts, superior courts, and the Supreme Court will run under partisan labels since the legislature restored partisan elections, over Cooper’s veto, last year. Partisan elections for Court of Appeals races resumed in the 2016 election.

Candidate filing for judicial elections was then delayed after legislators cancelled the partisan primaries scheduled for those races. A federal judge initially ordered that those primaries be reinstated for statewide races, but that ruling was reversed on appeal in April. The judge then dismissed the lawsuit June 19, citing the fact that candidate filing had already begun.

Instead of primaries, every candidate that files for a seat will appear on the November ballot.

At the beginning of the year, legislators had mooted making even more sweeping changes to the way North Carolina selects its judges. HB 717 began its life as an effort to redraw all of the state’s judicial boundaries, but it withered in the face of intense opposition from stakeholders, and the bill that ultimately emerged is more limited in scope. A plan to scrap judicial elections entirely and replace them with judicial merit selection foundered due to disagreement within the Republican caucus.

That impasse meant that lawmakers had to hurry to enact changes in time for this year’s election. SB 757 was introduced in the Senate only on May 28, and approved by legislators less than three weeks later. It is expected that no more election-related changes will be considered this session, however.

Doing a Sandhills shuffle

The slimmed-down HB 717, meanwhile, would significantly reshape superior court, district court, and prosecutorial districts in the Sandhills region. Hoke County would be removed from District 16A (leaving Anson, Richmond and Scotland counties) and shifted to District 19D, joining Moore County. District 16A would keep both of its superior court judges, while District 19D would add a second. At the district court level, a new and coterminous District 19D would be created.

Montgomery County, currently part of District 19B with Randolph County, would be moved to District 20A to join Stanly County for both superior and district courts. Stanly County is currently the smallest county, by far, to have its own judicial district. (It is also the home of departing Rep. Justin Burr, the primary sponsor of HB 717.)

Although the numbering would be different, new prosecutorial districts would overlap with the new judicial districts—one for Anson, Richmond and Scotland counties; one for Hoke and Moore counties, and one for Montgomery and Stanly counties, with Randolph County becoming its own district.

The law would also merge Superior Court District 4A (Duplin, Jones and Sampson counties) with District 4B (Onslow County). One seat would still be reserved for residents of Onslow County, and one seat for the other counties, but residents of all four counties would get to vote for both seats. Those counties already constitute one district at the district court level.

It is expected that Republican legislators would have the votes to also override a Cooper veto of HB 717 along partisan lines. If that happens, lawsuits over the new law would be almost certain to follow.

Follow David Donovan on Twitter @NCLWDonovan