PrimaryVoters stand in line at Leicester Elementary School in Buncombe County on March 15, 2016.

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In a year that’s already seen federal and state court decisions shake up the North Carolina election calendar, two hearings this week have the potential to disrupt the process even further.

One case is the appeal of the way that voters choose justices for the Supreme Court, which will hear the case Wednesday, April 13, in Raleigh.

A federal court in Greensboro is hearing the other case, which examines the legality of the state’s legislative districts.

The possible outcomes in each case are complicated and could lead to additional changes in how North Carolina conducts elections for these seats, as well as when those votes take place.

Supreme Court

Because Justice Robert Edmunds Jr.’s seat is up this year, he has recused himself from the case involving selection of justices. But that leaves the remaining six members of the court, all of whom could be affected by the issue at hand, to decide the case.

Carolina Public Press has talked with multiple legal experts who say the case absolutely raises conflict of interest issues and there is absolutely no one else who can decide it. The case is based squarely on North Carolina law, so there’s no mechanism by which it could be moved over to federal courts.

Some observers expect the justices to split 3-3 along partisan lines, which would leave the lower court ruling intact. If three or more justices do rule to uphold that ruling or no ruling is made before Election Day in November, then all goes as currently planned.

A ruling of at least four justices to overturn or temporarily set aside that lower court decision would be more complicated, especially if it comes later in the year.

The N.C. Board of Election has the unenviable task of upholding the laws passed by state lawmakers and enforcing court rulings, now always on a convenient timetable.

Previously, voters chose justices in nonpartisan elections. Candidates, including incumbents, filed for specific seats during a designated time window. If more than two candidates were seeking the same seat, a primary vote would take place and the top vote recipients would participate in the general election.

In 2015, the General Assembly approved a change to this system. Sitting justices seeking re-election would appear on the ballot by themselves and voters would decide on whether to retain them. If a justice chose not to seek re-election or voters chose not to retain that justice, candidates could then file for that seat.

While several other states have retention elections, which have the supposed virtue of de-politicizing the Supreme Court, this way of choosing justices also has its critics. States with retention systems rarely see justices removed by voters.

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Observers in North Carolina also suspected that the Republican legislators intended the timing to insulate Edmunds specifically from any election challenge this year, since his continued presence on the court would ensure a continued Republican majority.

The North Carolina justice retention law also had a potential defect that set it apart from the legal framework for similar systems in other states – it was just a statute, not a constitutional amendment.

A Wake County judicial panel found in March that the statute was in violation of the process described in the state constitution for judicial elections.

The N.C. Board of Elections acted quickly to conduct this year’s election under the old law, which was suddenly the law of the land. At the same time, the board acted to appeal the court ruling for expedited review by the state Supreme Court.

Board of Elections legal counsel Josh Lawson told Carolina Public Press in a phone interview on Friday that the act of appealing doesn’t say anything about what the board or its staff want to see as the outcome. It’s simply part of their function to appeal a ruling of this type on election law.

To handle the situation, the board provided for a window for candidates to file for Supreme Court in March with primaries to be held on June 7, already the date of congressional primaries as the result of a federal court ruling.

And election staff say they are proceeding as if that’s how things will work. “We are not currently waiting to hear back from the justices,” wrote Jackie Hyland, Board of Elections public information officer, in an email to CPP on Friday. “We are proceeding with the June 7 primary.”

But in response to a follow-up question about whether this means elections staff believes there will be no court action to change things, Hyland said that isn’t the case at all. “There could be,” she wrote.

Lawson said elections staff has thought carefully about how to handle a ruling that changes the procedures again.

If justices overturn the lower-court ruling or temporarily set it aside with an injunction before June 7, then everything would revert back to the original plan for a retention vote on the November ballot. Voters would still see the primaries on the June ballot, but those votes would be meaningless.

If the court acts after the June 7 vote, such as over the summer, then the results from June could be nullified and the retention election conducted in November.

But Lawson said the Board of Elections has included information in the brief it has filed on the case to show when court intervention goes from being complicated to problematic.

A key date would be Sept. 19, when the ballots go out. The Board of Elections is also statutorily required to print and distribute a judicial voter guide, which would contractually need to be finalized and in the printer’s hands by mid-August.

Lawson is hopeful that the court would not take action between that time and Election Day in November.

Justice are due to hear oral arguments in the case on Wednesday in Raleigh.

Legislative districts

The federal court trial the legislative case could raise the same type of issues for those districts as a federal judicial panel did in February for congressional districts. In both cases, the challenge has been about whether racial makeup of the district’s population played too much of a factor when lawmakers created the district maps in 2011.

Since the same lawmakers used the same data in both cases, it seems likely that a finding of racial bias in the congressional case would indicate that similar finding is in order for the legislative districts. But there’s no guarantee. And there’s no certainty on how quickly a ruling might take place following this week’s proceedings.

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The judges who ruled on the congressional districts gave lawmakers a short time period to come up with a new map, which they did. The new map also faces a legal challenge. And the ruling in the congressional case is being appealed, though U.S. Supreme Court justices refused to issue an emergency stay, which could suggest they won’t be inclined to overturn the lower court ruling.

There was time in February for a new congressional candidate filing period to be created and the special primary on June 7 to be set up. The situation is substantially different for the legislative races, with primaries held March 15.

With a week of arguments expected in the case on legislative districts, it’s unclear how quickly a decision might be issued and whether it would affect this year’s elections.

The court might object to the existing districts, but allow elections for this year to proceed, since primaries have already been conducted for those seats.

With a range of potential other decisions and timing possibilities, it’s difficult to know how the case could affect the current election cycle.

Regardless, state election staff will adapt as needed.

And voters who aren’t paying close attention may have difficulty keeping up so many changes in the process.

Frank Taylor

Frank Taylor is the managing editor of Carolina Public Press. Contact him at ftaylor@carolinapublicpress.org.

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