NC Democrats Seek Injunctive Relief Against Republican Meddling With the Judiciary

The Democratic parties in several counties (Cumberland, Durham, Forsyth, Guilford, Mecklenburg, Orange, and Wake), along with the NC Democratic Party as lead plaintiff, sued on Tuesday in the US District Court for the Middle District for a declaratory judgment and injunctive relief against the Republican General Assembly for eliminating judicial primaries in 2018. 

Background

On December 16, 2016, the Republicans in the General Assembly restored partisan elections for judges and justices of the appellate courts, and on March 9, 2017, they did the same for judges of the district courts and superior courts. After 2006 judicial elections had been non-partisan.

On April 4, 2017, the Republicans filed Senate Bill 656, the ironically named Electoral Freedom Act of 2017. A Proposed Conference Committee Substitute Bill for S.B. 656, submitted on October 4, 2018, added Section 4(a), eliminating primaries for judges and district attorneys for the 2018 election cycle. On October 5, 2017, the Republicans amended the Proposed Conference Committee Substitute Bill for S.B. 656 to restore primaries for the election of district attorneys but not for the election of judges.

Partisan primaries are mechanisms by which the two major parties select from a range of candidates the single standard-bearer they want on the fall ballot. Taking away judicial primaries will deprive both Democrats and Republicans the right to vote for their standard-bearers (which is a constitutionally protected right, according to the court filing in the Middle District on Tuesday).

The elimination of judicial primaries is just one of several moves the Republicans are making to turn

Phil Berger, Republican
Boss of the NC
General Assembly

judges into obedient servants of the current ruling class. Their apparent ultimate goal: They want Phil Berger making judicial appointments, or Phil Berger's lieutenants, so they're setting up judicial elections in 2018 for chaos.

With no Republican and Democratic primaries -- with all judicial candidates pushed onto the fall ballot, bumper-to-bumper -- the voting public will be faced with long ballots of unknown and untested candidates. Winners of those races might get no more than 20% of the total vote, or less, under those circumstances.

The only way to fight back at the moment -- because General Assembly elections are still a year off, when we might throw some of these cabbage worms back over the garden fence -- is via the law, the very mechanism that Republicans are busily working to knee-cap.


RELATED UPDATE ON JUDICIAL REDISTRICTING

RALEIGH, Dec. 13, 2017 -- Republican lawmakers asked Gov. Roy Cooper to send a representative to today’s Senate Committee on Judicial Redistricting to discuss the controversial changes that have been proposed for North Carolina’s court system.

But when former Wake County Chief Superior Court Judge Don Stephens tried to speak during the hearing, Republican lawmakers prevented him from doing so. In response, Democratic lawmakers walked out of the hearing to protest the unfair and nakedly partisan treatment of a respected member of the judiciary.

“This is far from the transparency we were promised,” tweeted Sen. Floyd McKissick, one of the Democratic senators who walked out of the hearing after his objections were overruled.

“Once again, Republican lawmakers show they have absolutely no interest in listening to the serious concerns which members of the legal community have about the partisan attacks on our court system,” said Gerrick Brenner, executive director of Progress NC Action. “This so-called ‘redistricting’ plan is merely an attempt to rig the judicial system in the GOP’s favor so they can remove black judges from the bench and replace them with partisan hacks who will rule based on political ideology instead of fairness.”

In response to these attacks on our court system, a coalition of groups including the NC NAACP, NC Voters for Clean Elections, and Democracy NC have planned a day of action on January 10, when lawmakers return to the General Assembly.

“When GOP lawmakers tried to pack the State Supreme Court for partisan gain last December, hundreds of North Carolinians rose up and stopped them,” added Brenner. “If these politicians try to rig the system once again by gerrymandering the courts, North Carolina voters will once again make their voices heard -- as loudly as possible.”

Who Are the Big Losers?

Yesterday was a big day, with two major developments related to voting:

1. Judge Paul Ridgeway in Wake Superior Court ended the Nathan Miller attempt to derail the Boone Town Council elections and ordered that the newly elected council members be certified and cleared for swearing into office.

2. Doug Jones won the Alabama special Senate election.

The Losers

Nathan Miller and the Watauga GOP. What will they try next to show their hatred of young voters?

Steve Bannon. His plans for a Trumpist empire look slightly crimped this morning. Twitter is reporting that Bannon aides are now saying that Steve really wanted Mo Brooks for that Senate seat, but was sort of forced to accept Roy Moore (because, uh, Moore won the Alabama primary).

Donald J. Trump. Hahahaha. Trump tweeted this morning that he was right all along about Alabama because when he was stumping the state for Luther Strange, he said in public that Roy Moore could never win the general election. Trump is 0-2 in picking candidates to campaign for, but because in his head he's always right and always a winner, he's drinking this rationalization in a great gulp.

Roy Moore. We hear his horse has applied to the witness relocation program. And before we forget seasons greetings -- Happy Hanukkah, Mrs. Moore!

Virginia Foxx. If a pro-choice Democrat can be elected to the US Senate from Alabama, then anything can happen in the year ahead. You might want to think about that, Madam Foxx. Perhaps you can get President Trump into the Fifth District to campaign for you.

Photo: Alex Brandon/AP

BREAKING NEWS -- Judge Ridgeway Rules in Favor of Boone Town Council

Judge Paul Ridgeway just agreed to grant the petition for a Writ of Mandamus from the three newly elected Boone Town Council members.

Story is still developing.

One of Those Watershed Moments

I have to admit that I'm going to miss the Roy Moore campaign. It's been a primer on where the Republican Party has parked its identity in the Age of Trump. Those reminders are both necessary and, lucky for us, numerous. Who is the Trump/Moore Republican? He's a soldier -- defiantly reactionary, divisive by prime instinct, preacher-perfect at denouncing other people's sins while personally wearing no underwear, and sentimental about slavery.

That's what made this Kayla Moore moment last night in Midland City so ... solid. The film is going to live forever.






Doug Jones can win this thing. I discount all polls on this race, including the Fox News one yesterday that had Jones up by 10 points, because how do you model who's going to actually show up and vote? The Alabama secretary of state predicted "a modest turnout of 20 to 25 percent" — surprising, given all the national media attention and the fact that voter turn-out was about 64 percent in the 2016 presidential election. Not surprising though, given the depressing downer nature of the whole campaign. The religious right is turned on by Roy Moore, and of course Democrats are ecstatic about how well Doug Jones has done, but a wide middle swath of not-particularly-engaged voters, including many educated Republicans, have been turned off by the spectacle of Moore, are embarrassed about him, and they either won't vote at all or they'll write in someone else's name (and maybe a few of them will even vote for the Democrat because they no longer believe in Hell).

Reportedly, African-American voters aren't energized about Jones, though major national political figures and celebrities like Charles Barkley have stumped the state. Last night, Jones got "an implicit boost, of a sort," from Condoleezza Rice, who without ever mentioning Doug Jones by name (or Roy Moore either), called on Alabamians to “reject bigotry, sexism and intolerance” and “insist that our representatives are dignified, decent and respectful of the values we hold dear.” Rice is a native of Alabama and maybe still has family there.

Based on what happened nationally with so many suburban, nominal Republicans and independent voters back on November 7, Jones could win it with the growing urban/suburban centers like Birmingham and Montgomery and Huntsville, especially if African-Americans don't sit at home and enough moderate Republicans either do stay at home or throw their vote in any direction but Moore's. The Democrats have been working hard while Moore's got no ground game and has been totally absent from the campaign for days at a time, including all of the past six days before his rally last night, when Mrs. Moore schooled everyone on who's a bigot. When a candidate acts like he doesn't need to work for it and doesn't show up with the public for days on end, do voters reward him with high office? Sometimes they don't.

Steve Bannon did his part at last night's rally, encouraging the booing of Republican Senator Richard Shelby, attacking both Condi Rice and Bob Corker, and then mocking Ivanka Trump's comments about Moore, that there's a special place in hell for people who sexually molest teenaged girls. Bannon has his entire reputation of king-maker and incipient political empire riding on this election today.

Nathan Miller's Attempt to Derail Boone Town Council Elections Now Hurtling Toward Resolution Today

Nathan Miller

Wake County Superior Court Judge Paul Ridgeway will hear the petition for a Writ of Mandamus filed by Sam Furgiuele, Marshall Ashcraft, and Connie Ulmer today, Tuesday, December 12, 2017, at 2:30 p.m. in Courtroom 3C of the Wake County Courthouse. The defendant in this action is actually the State Board of Elections, which the judge can direct to order the local board of elections to certify the November 7 election so that Furgiuele, Ashcraft, and Ulmer can be sworn in on December 21, as previously scheduled.

How We Got Here

Furgiuele, Ashcraft, and Ulmer win the Boone Town Council races on November 7; Watauga GOP through Nathan Miller files election protest over early voting site in ASU Student Union; his protest is voted down as "without merit" by the Watauga County Board of Elections; Miller appeals to the State Board of Elections (which currently doesn't exist)

State Board of Elections attorneys tell Miller he must appeal to the Wake Superior Court by a date certain; Miller misses the appeal date and says he doesn't care what the State Board of Elections attorneys tell him. He claims his protest can wait until a proper SBOE is appointed, and until then, no new municipal office-holders can be sworn in.

Furgiuele, Ashcraft, and Ulmer petition for a Writ of Mandamus to end Miller's protest and to declare their election certified. Their petition contains a motion for expedited hearing, which Judge Ridgeway granted yesterday, scheduling the hearing for this afternoon.

The 50-Yard Field Goal Attempt

The American Bridge PAC is running ads in Alabama urging voters tomorrow to write in the name Nick Saban on their ballots.





Why wouldn't Alabama voters choose their spiritual leader?

Back in September, with Trump distracting from the Mueller investigation by attacking NFL players, naturally a reporter would get to Nick Saban for a comment, and this is what coach said: "To me, some of the things that we do in our country when I grew up, they were unifying events and it's a little painful to see that those things are not so right now. But I also respect everyone's rights not to be censored in terms of the way they express their beliefs. I'm just a coach. I don't have the answers to all the questions. I know that most good things come out of love and respect and compassion and unifying people. Most bad things come out of hate and dislike and deceit. Hopefully we can focus on the above and not the below."

Well, Alabama could do worse than pick Nick Saban, and possibly will if it's to be Roy Moore.

What Newly Elected Boone Town Council Members Are Asking

So I'm asked to explain a "Writ of Mandamus."

For those of you who had a misspent youth and didn't learn your Latin, mandamus means "we command" in that ancient language. The "we" refers to judges of superior jurisdiction who take charge of a situation where an obvious injustice has occurred. A writ of mandamus is a commandment to make things right. Mandamus, for example, is used to restore rights to a complainant who's been denied them, and writs of mandamus have traditionally been issued in response to abuses of judicial process.

If Nathan Miller isn't a walking abuse of judicial process, then we don't actually know a hawk from a handsaw.

So the petition filed in Raleigh on Friday by plaintiffs Sam Furgiuele, Marshall Ashcraft, and Connie Ulmer requests an order from the Superior Court directing Kim Strach, Executive Director of the NC State Board of Elections, to notify the Watauga County Board of Elections that the election is over, that the plaintiffs won and should be certified as the winners, and that furthermore the Nathan Miller election protest is dead for failing to meet its deadline for appeal.

Will Boone Swear in New Town Council Members on December 21?

Photo HC Press

Winners of the 2017 Boone Town Council elections still haven't been certified (and therefore can't be sworn in as scheduled on December 21, pending legal action filed yesterday in Wake County -- see below) because of Nathan Miller, prominent Boone lawyer and vice chair of the Watauga Republican Party.

(Note: The hold on certification of newly elected officials applies to all of Watauga County, including the municipal winners in Blowing Rock, Beech Mountain, and Seven Devils.)

Outline of Miller's Solo Attack on the Whole Elections Process 

October 13, 2017: Judge A. Graham Shirley enters an order in Wake Superior Court establishing an early voting site at ASU. Nathan Miller with Bill Aceto as plaintiff promptly intervenes and appeals Judge Shirley's order to the Court of Appeals.

October 18, 2017: Court of Appeals grants Miller-Aceto a temporary stay.

October 25, 2017: Court of Appeals dissolves the stay. Judge Shirley's original order is back in force, and it's the Eve of Early Voting on campus.

October 26, 2017: Early Voting opens on schedule at ASU. (Voting has already been going on at the downtown courthouse site since October 19.)

November 7, 2017: Election Day for Boone, Blowing Rock, Seven Devils, and Beech Mountain. There are winners and losers.

November 16, 2017: Now with Anne Marie Yates as plaintiff, Nathan Miller files an election protest with the Watauga (holdover) Board of Elections alleging an "irregularity or misconduct" in the Boone Town Council election and requesting a new election. Miller's whole argument: The law requires 20 days of advertisement to precede the opening of Early Voting, and the space between the Court of Appeals action on October 25 and the opening of Early Voting on the ASU campus on October 26 was precisely one day, not 20, and therefore the election is invalid. (Never mind Judge Shirley's order and the precedent of 2014.)

November 20, 2017: The Watauga County (hold-over) Board of Elections

votes unanimously to reject Miller's protest. Board Chair Bill Aceto says the protest has no merit.

November 21, 2017: Miller files Notice of Appeal with the state Board of Elections (SBOE), appealing the Watauga BOE's rejection of his election protest. General Counsel for the SBOE responds that because the SBOE does not exist currently (due to a lawsuit pending in the Supreme Court), the finding of the local Board stands as final. Any appeal must now be addressed to Wake Superior Court (as provided for by statute).

November 27, 2017: Nathan Miller replies to the SBOE General Counsel: We reject that interpretation of the law and maintain that until a proper SBOE is appointed and can rule on our objections, no certification of Watauga County municipal elections can be made.

November 28, 2017: General Counsel for the SBOE tells Miller he's wrong on the law and has until noon "tomorrow" -- November 29 -- to file a Notice of Appeal in Wake Superior Court. Miller rejects that, misses the deadline for appeal, and says he can wait until hell freezes over or until there's a new SBOE installed to hear his complaints. Therefore, according to Miller, no new municipal officials exist in Watauga County and exactly none may be sworn in.

That's where it stands. Or did, until Boone Town Council election winners Sam Furgiuele, Marshall Ashcraft, and Connie Ulmer filed a petition in Wake Superior Court yesterday (Friday, December 8) for a Writ of Mandamus to end this cynical and calculated circus.

What's this all about? Student voting, an existential threat to Trumpism.

Would You Take a Letter? Or Would You Have My Baby? Answer the Second Question First

Rep. Trent Franks (R-Arizona) was out of the House so fast yesterday it would make your head spin, on the same day that Al Franken announced his retirement (so you may have missed the Franks exit).

Two female staffers said Franks asked if either or both would carry his baby as a surrogate for his wife, who can't (she's had two miscarriages). The Franks have already used a surrogate for their twins.

Speaker Paul Ryan heard the accusations, called Franks in and repeated them, and Franks did not deny them and decided to quit the House immediately.

Hey, you hypocrite liberals! He was just family planning.