Here’s how North Carolina courts were able to anonymously reschedule state elections
At first, North Carolina’s 2022 primary elections were scheduled for March. Then candidate filing was indefinitely delayed. Then it was back on. Then it was stopped again, for good, with the primary pushed back to May.
And no one knows who made each of those decisions along the way.
The institutions are clear, at least. A panel of three of the N.C. Court of Appeals’ 15 judges made the first decision to delay. Then the full 15-member court undid that decision. Then the seven-member N.C. Supreme Court undid that undoing, and made the final decision to move the primary back two months — in order to allow time for a gerrymandering trial to happen in the next few weeks, since it could lead to the state’s electoral districts being redrawn.
But at none of the three stages along the way did the public receive information that’s typically made public about court orders — which judges were involved, and how each one ruled.
“The court’s decision was anonymous,” said Ralph Hise, a Republican state senator and top redistricting official, in a press release criticizing the ruling. “Every election in the state has been suspended, and nobody knows by whom.”
The News & Observer has asked the courts system for records that would indicate which judges took part in the rulings, and how they ruled. A spokesperson for the Administrative Office of the Courts said that information will remain confidential.
That’s because the decisions from both the Court of Appeals and Supreme Court were made through a process called a “conference” rather than in a hearing. Most court hearings, by law, are public. But in a “conference” judges privately discuss a matter, then issue a ruling without identifying how each judge voted.
“Typically, emergency orders or temporary orders are not signed, and just issued in the name of the court,” said Michael Crowell, an expert on the judicial system in North Carolina. “Most courts have the same sort of setup.”
It’s a common occurrence in courts all around the country, albeit one that typically doesn’t involve issues as high profile as when elections will be held.
Crowell is now retired after serving as the assistant director of the Institute of Government at UNC-Chapel Hill’s School of Government, which trains new judges and other public officials. In an interview Friday, he said the budding controversy here mirrors one that has already been building at the national level — in which Democrats have accused the Republican-majority U.S. Supreme Court of making too many important decisions in a similarly secretive process that keeps the justices’ individual votes from being recorded.
“There is a fairly robust debate going on right now involving the U.S. Supreme Court and that practice, what people call the ‘shadow docket’ ... and the number of significant orders being issued by the Supreme Court without knowledge of who it is,” Crowell said.
The American Bar Association wrote earlier this year that, increasingly, the U.S. Supreme Court “has begun resolving politically-charged disputes over the border wall, COVID-19 safety restrictions, and federal executions using the once ‘anodyne’ shadow docket.”
Anodyne means not offensive or controversial.
Politics and the courts
In North Carolina, with the recent redistricting rulings, many political observers were quick to point out that at each stage the court rulings seemed to align with the politics of the judges making the decisions.
The Court of Appeals, which has a Republican majority, ruled in favor of Republican lawmakers. The Supreme Court, which has a Democratic majority, ruled in favor of the liberal challengers.
Although all judges are elected in partisan elections, Crowell said nearly everything courts do is apolitical and he believes the small number of political cases like redistricting that the courts do hear have unfairly tarnished the system’s reputation.
“When people talk about the courts being partisan, they’re almost always talking about redistricting or elections cases,” he said. “And that creates an impression that the courts are more politically oriented than they are.”
Without knowing who actually ruled and how on the recent redistricting issue, though, it’s impossible to know whether people’s assumptions are accurate. Maybe the votes were unanimous. Maybe they broke down along party lines. Maybe there was some political crossover. Maybe some recused themselves and didn’t vote at all.
The courts system won’t say — despite the records request from The News & Observer, and at least one from a member of congress, Republican Rep. Dan Bishop of Charlotte.
“The Judicial Branch does not comment on cases that could come before the courts, pending cases, litigation, and/or investigations, or final rulings and opinions,” said Graham Wilson, a spokesman for the Administrative Office of the Courts, in an email.
On Thursday, the N&O clarified that the request was not for a comment on the case, but rather just the information on which judges participated and how they ruled. Wilson said that information is confidential.
Is ‘urgency’ enough?
Bishop requested the identity of the justices involved in the Supreme Court decision, but not the judges who made the Appeals Court decisions. His request was made in a letter sent Thursday to the Supreme Court’s clerk as well as to Justice Tamara Barringer — a Republican who, before she was on the court, served alongside Bishop when they were both members of the state Senate.
“The state Supreme Court cannot shut down an election in North Carolina without any stated reasoning and anonymously,” Bishop wrote in a tweet that also included a copy of his letter.
The court wasn’t completely silent on its reasoning for delaying the primaries. But it was brief, keeping its ruling to only about two pages.
The justices cited a sense of “urgency” and “the great public interest” in resolving the gerrymandering issue “at the earliest possible opportunity” — potentially in time for new maps to be drawn before next year’s elections.
Last decade, nearly every election for state legislature and Congress was held using maps later found to be unconstitutional — in large part because the legal process took years to play out.
However, Republican lawmakers said a sense of urgency should not be all it takes for a court to make a ruling — particularly one so important.
“The court provided no legal or factual reason for suspending elections and blocking candidate filing,” Hise said. “An appellate court entering an injunction without providing any legal or factual basis is unprecedented.”
Crowell said he read the order and saw no problem with it, although he suggested the pushback is a good lesson for the future. Maybe the courts should come up with some sort of standard process for speeding up redistricting cases, he suggested, so that no one is caught off guard in the future when they make decisions like the one Wednesday.
“One way to look at it is, for the last several decades, the litigation over redistricting has interrupted elections throughout the decade because it lasted almost the entire decade,” he said. “Perhaps what the order addresses is, ‘Gee, let’s see if we can’t get out front and get this done quickly.’”
For more North Carolina government and politics news, listen to the Under the Dome politics podcast from The News & Observer and the NC Insider. You can find it at link.chtbl.com/underthedomenc or wherever you get your podcasts.
This story was originally published December 13, 2021 at 5:30 AM with the headline "Here’s how North Carolina courts were able to anonymously reschedule state elections."
