by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
[See updates below.]
The North Carolina Court of Appeals has temporarily put candidate filing for North Carolina General Assembly and congressional races on hold:
“The North Carolina Court of Appeals just issued an order temporarily suspending filing for congressional and legislative offices,” Paul Cox, associate general counsel for the State Board of Elections, told local elections directors in an email shortly before 11:40 a.m.
“By order of the court, the county boards may not file candidates for State House and State Senate until further notice,” Cox wrote. “Likewise, the State Board may not file candidates for U.S. House until further notice.”
The action is so the court can hear the appeal of a lower court rejection of a lawsuit seeking to stop candidate filing. Judges on the Wake County Superior Court rejected the plaintiff’s request to enjoin candidate filing after a hearing on December 3. The appeals court will hear the appeal by December 9.
So, what will happen to the candidate filing period for North Carolina House, North Carolina Senate, and United States House offices?
There are two likely scenarios:
1. The appeals court enjoins candidate filing: In this case, candidate filing for those offices will be delayed until a hearing on the lawsuits is completed. North Carolina will then likely have two sets of primaries; one for local and statewide offices in March and another one for General Assembly and statewide offices later in the spring.
2. The court does not enjoin candidate filing: North Carolina General Statute 163-106.2 is clear about when candidate filing ends:
Candidates seeking party primary nominations for the following offices shall file their notice of candidacy with the State Board no earlier than 12:00 noon on the first Monday in December and no later than 12:00 noon on the third Friday in December preceding the primary
For the 2022 election, that would make the filing period from today (December 6) through December 17. Absent a court order, the State Board of Elections would not have the authority to extend candidate filing after the 17th. It would be hard for potential candidates to argue that the shortened filing period somehow harmed their ability to file their candidacies, so it is unlikely that a court would order the state elections board to extend candidate filing if the plaintiffs’ appeal is rejected.
(Unlikely, but not impossible: court actions on elections and election law are a bit of a circus in North Carolina.)
UPDATE: The full fifteen-member Court of Appeals reversed the three-judge panel’s decision:
“It is hereby ordered, upon a vote of the majority of judges of the Court, that the Court will rehear the above-captioned cause en banc,” said the one-paragraph order issued early Monday evening. “En banc” is the legal term used for a hearing involving a court’s full slate of judges.
“The panel’s order dated 6 December 2021 issuing a temporary stay is vacated, and the Plaintiffs’ motion for temporary stay is denied,” according to the new order. “The en banc Court shall promptly rule on the pending Petition for Writ of Supersedeas or Prohibition.”
Candidate filing for General Assembly and congressional races will begin at 8:00 AM on December 7.
This quick reversal of the panel’s temporary stay of candidate filing and the order of an En banc hearings is a sign that most of the Appeals Court judges disagree with the panel. That does not guarantee that they will side with the defendants and dismiss the plaintiffs’ complaints when they have their own hearing.
In another development, Governor Roy Cooper and Attorney General Josh Stein have asked the North Carolina Supreme Court to take up the cases.
UPDATE 2: The North Carolina Supreme Court reversed the Appeals Court ruling and granted a preliminary injunction stopping candidates filing for the 2020 election:
The court ordered that primaries scheduled for March be delayed until May 17. A trial will be held on the lawsuits by January 11 and any appeal will go straight to the Supreme Court within two business days.