New Primary in 9th District is Unconstitutional

by Bob Orr, former Supreme Court Justice and NC SPIN panelist, reprinted from Charlotte Observer with permission from author, December 20, 2018.

As the controversy over whether Republican Mark Harris should be certified by the N.C. Board of Elections as the 9th Congressional District winner swirls, Harris and his Democratic opponent, Dan McCready, have begun preparing for a new race. But the General Assembly just passed HB 1029 requiring that a primary be conducted if a special election is ordered. That’s not only a bad idea from a practical standpoint but, Iwould submit, it is also unconstitutional.

First, requiring a new primary delays resolution of this race potentially into the later months of 2019. During this time, 9th District residents have no direct voice on their behalf in Congress. A new primary also significantly amplifies the costs, controversies and election weariness on everyone. The candidates have just gone through well over a year of campaigning, fundraising and political ads, including two hotly contested primaries and general election. Putting the candidates, their families, supporters, staff and anyone who cares through another year of this is brutally unfair. Whoever wins would take office well into the term, only to have to gear up immediately for the 2020 race.

Secondly, I would submit that the legislation mandating a new primary is unconstitutional. Recall the case of Chris Anglin, who re-registered from Democrat to Republican shortly before filing for an NC Supreme Court seat. The General Assembly quickly changed the law to disqualify Anglin. He successfully challenged the constitutionality of that after-the-fact law. That case involved only filing for an office. In the 9^th District, we have filing closed; a primary election held and results certified by the Board of Elections; and then a general election. To require any of the candidates to re-do a primary that has been held and the results certified would appear to fly in the face of the ruling in the Anglin case.

Finally, the General Assembly passed House Bill 1029 with a procedure that, I believe, violates the state constitution by using one bill as avehicle to get to a conference committee; substituting an entirely different bill for the original one; then having one up-or-down vote on the committee substitute. It’s been done a lot but it’s not just bad government. I think it’s unconstitutional.

So, let’s quickly have a new general election and resolve the question of who should go to Congress for the people of the 9^th District. We don’t need a primary.

Orr, a Republican, is a former NC Supreme Court justice. He endorsed Dan McCready early on and helped launch Republicans for Dan.