we'll here in north carolina democratic party against berger and i guess we begin with mr w i think your honor may please the court my name is martin wharf and along with ryan clark for the state we represent the appellant in this matter the question before the court is whether political parties in a partisan judicial election have a constitutional right to a government regulated method of narrowing the field of candidates or to the right to identify a nominee on the general election ballot by answering in the affirmative the trial court erred and this court should reverse for two primary reasons i don't quite understand your issue you said the second issue was they were challenging the fact that they let let their names be labeled on the ballot i thought the issue here was eliminating the primary period honor that is i believe that is part of the issue what's whatever issue is there that the plaintiffs contend numerous times in their apple e's brief and the district court noted that there should be some recognition of a nominee on the general election ballot in particular when self identified affiliated or an affiliated candidates list their own affiliation on the ballot is that an actual separate issue they're racing and i didn't understand that i thought their issue basically is they did not want to have the primary abolished which leaves the candidates to get on the ballot and the candidates are on allowed by law otherwise to have their identification next to their name but that could be taken away or not but i didn't know they were raising that as an issue they certainly did not in the complaint as far as we can tell your honor they the complaint focused solely on the right to choose a standard bearer through some sort well my material when their argument about the right to choose the standard bearer it seems to me is intimately involved in the way you stated the issues that is the e every every candidate who appears on the general election ballot will have a label if they consider themselves to be affiliated elf identify yes your honor and the d stands for self identifying as a democrat i think that's correct and then the r stands for self identifying as a republican yes and the ana phil is their own affiliate is that what they call use stands for on affiliated there would be yes ok so that their argument is that they should be able to choose who they are going to be associated with and it shouldn't have the indication to the general public that these days constitute the democratic nominee as they have in every other general election when there's been a d on the general election ballot next to a candidate and what the state says is no that doesn't count anymore because we have changed the law and d n r and these other designations only show how you how you individually identify yourself is not correct that's not exactly correct no or to this when you four years ago or whenever the last election was in every other election or if you had to deal next to your name it meant you were the nominee of the democratic party respectfully no i don't think it did mean that on the general election ballot it did it did not what you ran in a democratic and republican primary and then you went on the general election ballot with a dean next to your name and what did it me it meant that you self identified as a democrat on your voter registration there unless you got through a primary that the democrats selected it wasn't just that you self identified it was that the party selected that candidate as the standard primary only the person that had won the primary could have their self identified d d b on the product on the general election ballot next to their name right yes but for the reason that the primary by its nature out a window in effect right to the general election to the candidates on the ballot and i think that the point is to begin with we prefer primary but the laws it doesn't let them have that so they said all right well we don't want to be associated with people who just doesn't make themselves is d and it misstates to the general public that they are a nominee of our group that's their claim i mean it doesn't go anywhere but that's your claim i think that is their claim yes well that's their claim i didn't understand it quite that way maybe this is clarifying but if that's their claim that runs squarely into washington state grange it does your honor where they self identified and those identifications were not indicative of the party selection but the soft identification and the confusion was just the confusion judge m way we'll hear from them more but you can make your argument as you wish well i appreciate the question just and i think it goes to the fact that indeed with this being a facial challenge you saw that in washington state grange as well and the voter confusion that was raised by the parties in that particular issue the court discounted on a facial challenge and said we cannot speculate about that and and  the potential potential for confusion on a general election ballot is not something that is affects a substantial all right of the particular party and this court in scuse me  it's not a mechanism for campaigning or giving a message it's it's a mechanism for you know to identify him for the public permit the public to make select and that outside campaign can do the rest of state provide for the elections ok well let me ask you a clarifying question is there any other you you are more familiar with state law when i am is there any other exists by dinner for cation you mean saying that they're the they're the party nominee even the party no there's no way to do that you mean if the party wanted to caucus and select a candidate could they comply with other laws in north carolina and get that person on the ballot yes and i may not as a party nominee yes i may have i may have misunderstood i mean misunderstood the question of yours or was it to you the ballot itself there is already selected a candidate the last year the last time they selected ken in a primary but the primaries been eliminated the party could have a convention or could have a caucus epsilon its own and select a candidate now let's assume they go through that process in may they select a candidate or engine and they pick judge can judge a now be put on the ballot as a candidate of the democratic party yes if judge a had already registered to be a a candidate in that election the words that if you change what he says he's even if he self identifies as a democrat he also goes on the ballot with the nominee one nominee is the state allow that one nominee to be the nominee of the party on the general election ballot if there are other people that have self identified in the same party i think if you're saying that it would that the general that the general election would exclude other hand they lose what is it carolyn's mother to look like they're seven people that have self designated j and there's one person that's won party convention that got in the the democratic nomination i'm sorry but there are the other seven people itself identifies d how many people go in the general election ballot is d in this election the you would there's no allowance for the other the seven are d and he the person that was the choice of the party gets to call himself democratic party nominee there's no there's way it is set up all eight would have a d and there'd be no distinction between the nominee and the self identifying people that's correct and so and i think that confusion which clearly would probably prompt some confusion would have to be clarified externally by the party in saying this is our nominee and the state's not making any effort but i don't think the state would say who the nominee would be that would be but it tends to interfere at all those questions were valid yes but the i think when you look at the way the primary works you've got to competing interests or two different interests that are involved in that a primary does allow a  a party to select a nominee and there's no there's no issue that that is a an associational right to always be able to select your nominee but yes leader it i would think a party can always select a nominee yet that they don't have to be provided an election by the state no they do not the party can can have a convention they can have a caucus they can get a bill passed to have primaries and you know in the old days we had almost all convention you have today in iowa where you have a ca another state you have caucus that's correct you're out this idea of you cannot deny the party the right to select somebody to associate select somebody in to advance a candidate and i think that we're the fundamentalists in that that's absolutely  jones yes that's jones and that and that's also tenant so there are plenty of cases the whole that and this act does not interfere with that i less than that point i mean that the point is there is a distinction between interfering with the parties ability to select a candidate and the right of a state to provide an election or not and the state may cost the state money to provide an election i suppose they could say we're not going to have any more primary elections and nobody can complain about it but the party can select somebody and the state's going to have to recognize it and can interfere with that that's correct but that's an association right yes and the i think the the win g to judge motss put your point the winnowing that occurs that is reflected on the ballot as only having potentially one person through a primary that is the state interest in controlling the nature of the an in under this system i quite understand what you're saying the state is going to in all likelihood have more nominees than they would have if they had to winnow down to actual person but on a facial challenge that is at least all we know right now is the potential that well but it was intense it make any difference at all to your position that if there were twenty people going to be on the ballot because they had self identified as members new business about winnowing and this is a facial challenge and we may change i just make a difference to you you have to take it that there be twenty forty fifty people right yes we would say that is a mistake lies in an interest and when only that's right i th can win all it as they wish they can and our state can leave it open now i think the big crux of were judge much as been asked me questions is if the party chooses to pick its nominee you have a policy that consists of non windowed self identifying candidates plus a nominee of the democratic party which has the same d and that confusion would have to be eliminated or you offer to justify the distance the we've offered several justifications for that just tell me what they are quickly one there is a resisting that is currently be considered good these we aren't doesn't correct in the state and they would all be elected across the state yet the only issue that's in front of us now everything else is disappearing the case right well because it is disappearing the case because the court found th discussed on the record was a constitutional amendment to move away from to actually for the election of judges and we also have on the face of this act which goes to the district court's decision that there's no severability clause here and all the judges all judicial races in north carolina were treated the same and the district court applied a strict scrutiny narrow tailoring to that in order to set aside a potential justification for me are you know your brief maybe to the court love that there would be confusion on the ballot too because some would be the product itself identification of the others would be nominees from primaries and the public wouldn't know the difference you from electing judges how does it address that interest the i think it was deals with the timing of the of the issue the potential  confusion again if you are looking at on a general election ballot of i've got potential judges here but i've also got we had an amendment earlier today could have been put on the could be put on the the primary to say we're going to go away the voters can choose where they want to elect their judges or not so it was the issue of both the redistricting and this other consideration that was ongoing to say this in the state interest at this time present a short argument and we just so i represent the state of north carolina and the elections board mr worf represents the legislative defendant and and we are just here to adopt the arguments made by worf why didn't you adopt the arguments in the stay was requested the state was not a party there just the two legislative this defendant's asked for the stay that's correct i want to be careful here because i don't want to you're going to hear you get into into privileged discussions but it was to be candid it was more a timing issue in terms of our internal deliberations and our decision making at the attorney general's office seems to me that the state would have a significant interest in saying that they get to select the election laws however they wish to state them so long as they don't regulate internal party selection processes yes we b trial has been scheduled for june and what happens on may eighth if if under the status quo yeah they would if we didn't intervene or anything or if we intervene and  and there's got to be some state machinery that has to be implemented one way or the other correct and we have i don't know if we've been given a deadline the reason we're we've expedited this argument for today wanted to try to accommodate it to give the parties some indications so they can govern themselves but i was just wondering what's the significance of may eighth because that was the date that was given to us and that's the date of the primary more time or it's too late to challenge so i always say to people your challenges either right not right or moot well weeks so we had i went far and i was crying so in the brief in the opening brief in this court which we joined in full the we did say that there is time for a primary process a post judgment and so between the june trial and the election let me just as he one last question let's my colleagues ha question as do you don't have any other interests you want to put forward do you know all your and all the state interests are in here the brief that the the two legislators have filed that you joined in right that's correct that's all right thank you thank you it's your is constitutional to have a partisan general election without a primary players position in this action is a condition without a minute let's just talk about the issue and certainly you're suggesting then that the state has to have a primary in order to have partisan election i mean why couldn't the state eliminate all primaries all primaries and let people put their names on with a sufficient level of public support with their name and their self identification like the court considered in washington state range your honor as we look at the situation in light of north carolina as more than one hundred years of history with partisan edition elections and since one thousand nine hundred fifty stick let's stick with the law certainly question is the state does not need to provide a primary election under any constitutional provision that is up to the states discretion right i agree with that ok yes so if a state decides not to have primary elections your argument was then they can't have par says anybody who gets x number of votes on a petition can put their name on a ballot with the letter they identify with on the election about is that unconstitutional at what the state has not done that i know is the hypothetical i wan this is to get to the issue yes and the state does not have the obligation always and in every circumstance to provide a primary in the event that there is a part of select at the primary i want you to stick with my hypothetical my hypothetical is we have no primaries in the state of new with me i'm with you all right we have a state that has decided to let people self identify with parties and put their name on provided they have  not a number of sufficient number of signatures to get their name on the ballot so that you can have ten persons with d after his name for one office and ten more persons with our after his name for one office is that unconstitutional we would we would challenge that procedure because it doesn't enable the party to define it doesn't sit in sociology the party can go it can have a caucus it can have a primary  cannot convention but there is nothing that says the state has to give them election to a party and i don't contend that in the abstract that there must be a primary but we have a set of circumstances in north carolina created by a his argue the case let me get to the principle i was john we get to and heard the question i still haven't heard from you on is if the state has decided no primaries the parties can select whomever they want however they want we're not going to interfere with that but when it comes time for the fall election we're going to put the names of any candidate who puts a special number of names on the petition on the ballot and let that person self identify illegal and we say your honor that when those names with those d's next to them appear on the ballot it the state is usurping the party's role in selecting those persons as what i thought you were going to say and now the question is that is squarely the holding of washington state grange that was the argument that they made you remember in washington state grange self identifying people who were not nominated by the party were allowed on the ballot and the party came in and says you can't do that you're interfering with our ability to select and supreme court said not so the supreme court in washington grange was addressing what we look at as a very unusual a hybrid situation in which there was a primary there was a primary election any candidate wishing to appear on that primary election ballot could express a preference for   r or a d or whatever other affiliation they chose on that date washington state does not have voter registration by party so the candidate appearing to file his statement of candidacy could select the r or the name would appear on the ballot primary election already the party there who was democratic republican party objected for the primary reason that you objected to those that the ballot doesn't recognize as a selected nominee of the party your person rather the party so far done a fine and that was not upheld a suspicion challenge and in washington grange there was a election which took the field but it did of course and for the party it the party had a an opportunity and as judge eagles in the district court found the party had an opportunity to advocate for those persons can't you do that as a party there is of course an opportunity for the democratic party to advocate for a chosen candidate among a field perhaps of many but there is no mechanism for within the democratic party no mechanism for selecting a nominee because for one hundred years since nine hundred fifteen the democratic party has complied with north carolina law and selected its nominees why a primary election went to this election's nonpartisan in north carolina for a time up until relatively recently your honor there was a period beginning in one nine hundred fifteen in which then the parties participated in the selection of candidates in the primary election that is to say parties to the extent that they wished to do so participated in primary elections advocating for one candidate or another but you do that now but because there is no primary and in the fall of of the general election season that is there was no party affiliation on the bow but the north carolina democratic party did not challenge that system because the democratic party does not conten it has a right to a primary in connection with a nonpartizan general election does not contend that it has a right to identify in nominee on a nonpartizan general election ballot it is when a partisan general election ballot is presented to the voters which has the d's and the r s which arc and i'm looking right here and i've read it three times since you've been talking  supreme court said the party complained about the fact that they were nominating people in the supreme court said the party the primary was not to nominate recognized party nominees but was to win field and if the two top contenders were both democrats they went on that it doesn't matter whether the party selected them or not and so whether the parties nominate their own candidates outside the state run party is simply irrelevant and so that's exactly what what we're talking about and i think that the that your best case and it may be a difference without a distinction without a real difference is that in grange the on the primary election there was a primary election for starters there isn't a primary election and so the party's nominees are out there for everybody to see and to winnow even if you have a primary they had a primary and you all don't have a primary that did this but how or what difference what aside from that difference what a vantage just the primary system in grange not just your old primary system but the primary system in grange give you over what you have now no primary it's an extraordinary opportunity for the party to educate the voters about the holiday of the candidate to advance the candidate that best represents the party and to winnow the field of candidates that we don't believe represent on the artery that they're on a ballot and so the ballot is more publicized than any newspaper and i think more people are going to read and study and you can but that ballot the supreme court says the to the contrary the election regulations specifically provide that the primary does not serve to determine the nominees of a political party but serves to winnow the number of candidates to a final list of two for the general election and it doesn't matter which party they're from whether the candidates nominate their own candidate parties they said they could do that but that's  primary there was not a party primary and it wasn't to determine the primary and the democratic party didn't run it it was a combined where they basically winnow down so you could not as you just argued have the party say we're indicating our nomination for this one of that when you don't have a vote to suggest that what you have is a general collection a pullin or a vote it's like a runoff vote you have a polemic vote to winnow the candidates down to two for  iraq and on that challenge the supreme court determined that there was insufficient evidence to determine that the method adopted by the voters in washington unissued eight hundred to initiative eight seventy two which is a an eight page piece of legislation the supreme court determined that there was insufficient information before the court to determine that that created an infringement of first amendment rights and what we have here is very different it's a very very finite absolute unequivocal occurrence that we confront here in may in which for the first time we will not have judicial primaries we know that that with absent an injunction from business you've agreed that primaries are not a constitutional right so now the question is by not having judicial primaries that first step yes you know the only step that you get is the argument that judge mots probed in the beginning is that you can select your candidates to go on and those candidates will be competing with other self identifying candidates on the ballot and the dilemma your honor is best discussed and the issue best illuminated in the dissent of justice scalia in the grange case because he points out very ably that the party label is the property essentially of the challenge you're right it was and i will i will tell you that the the most artful elimination of this issue appears in that dissent we will not find it acceptable if we have a very fine kamut candidate on the ballot in november we've not had a primary to win of the field and and that candidate is surrounded by by others but it's not your interest to winnow the field you are entitled to select a candidate it's the state's interest if they wish to winnow the field to make the ballot small but they've chosen not to winnow the field they've chosen to let anybody who self identify and i don't know why you're not willing to make the argument i don't think it gets that far but your argument is we have a candidate who we like and we've selected him and caucus and he gets on the ballot and the he's now labeled with a d just as everybody else but the supreme court said that you don't have a right to have that designation clarified on the ballot respectfully your honor we don't know what the supreme court would say confronted with a partisan general election without a primary we have not seen that situation had washing grange they went on with their letters behind their name no there's no there's no primary but we have we have no rhyme erick and yes it's not a it but it's not a party primary in other words they but it's not the party registration or the party nomination that appeared on the ballot it's not a party nominee and the washington system we on every other race on a partisan race on this  going to have a party nominee with a d next to it with his or her name and on this collection of candidates they're going to be a collection of candidate names with these and the voters are not going to have the information to know whether or not those persons are nominees of the democratic party or pretenders and that creates a situation in which we have voter confusion we have in our north carolina system approach cried out we don't have certainly less than one percent of the voters in the state of north carolina one percent of the democrats in the state of north carolina would have had a role in selecting that nominee and then that nominees this thing process in some states already and that's not unconstitutional but we have not utilized that system as a consequence we've had the rug pulled out from under us is that unconstitutional i mean if you think it doesn't you're arguing some fairness or you're arguing surprise but the issue before us is whether the first amendment is violated and we we respectfully contend your honor that that imposes a burden on our first amendment rights because it both eliminates our ability to nominate  candidate by choice of the the democrats who have historically chosen our candidate have regulated parties ability to do that has reduced our ability and imposed a burden on us which has created a situation in which a ballot will be presented to voters in november probably with a long list of candidates with these next to their names for each of these four offices the last time we had a non partisan court of appeals ballot special election single single seat on the north carolina court of appeals this was in the fall of two thousand and fourteen we had nineteen candidates on the ballot and there is not sufficient opportunity for candidates or parties to communicate to voters about nonpartisan general election well your colleague from the state has reminded us this case that we're here and you're here on a preliminary injunction this case goes to trial you say that there is a burden and you if you can establish that it is sufficient burden to prevail right and you seem to think that there is sufficient burden here correct your honor we have that opportunity in trial in june what's the date of the trial remember and judge eagles found as much there is not a case that addresses this situation is factual situation that's true but in general cases are not actually identical yet experienced lawyer you know but but in this in this universe of cases we have marcellus and we have the husted case from the sixth circuit and those are cases in which there was a party primary and a nonpartizan general election those were challenged bound to be split constitutional statutory schemes nonpartisan general elections we have jones and we have grange those are the west coast hybrid style process accent jones and your brief tended to confuse these cases very much jones recognize that this was an effort to regulate the primary it regulated how the party made selections and said they had to admit non party members and to the party to vote and the supreme court said you can't do that it's pretty wrecked they were regulating the party selection process here this is the state deciding whether to provide an election which it doesn't have to do constitutionally for the primaries of judges and they eliminated the primary for all judges mainly on the ground that the local judges had redistricting and to be split them up would be cause confusion that was their justification but they don't probably have to have one or eliminating the prime they may have to have one in justifying the burden that it may cause in the fall on buyout but and marcellus we said that that was pretty low burden in this situation week we confront a fall general election ballot with no way to identify on that ballot  nominee with no process proceeding it in accordance with the history of north carolina that provides us with a nominee chosen by democrats in north carolina and then we are faced with the likelihood of having numerous falling as democrats on that ballot this is a quote from this is a quote from washington state the first amendment does not give political parties a right to have their nominees designated as such on the ballot and they did recognize that there were nominees i mean there were party partisans on the ballot there with the same party preference indicated and the party said hold it they're not our irrelevant you can put up your own if you want so i don't those principles seem to be you're constantly pushing against those principles saying that the state has to indicate that you have designated a nominee and your honor in the washington system there was and this is in the record in the argument infection they are with the arguments for in court there was an extensive effort underway in the state of washington to educate voters about that system because it was different because it didn't that's you're free to do comport you're free to do that we don't have a mechanism within the state of north carolina to prove prepare ballots which explain to voters what's did not explain clearly did not you can go on the television you can give speeches you can send out flyers you can conduct meetings all of these things can be done you can announce  a candidate if you have them you can put flyers around the democratic party selected nominees judge jones and and put his qualifications all this can be done and no one has bar doing and certainly we may not be barred from doing that but that doesn't diminish the damage that is done in the holding place at by the way washington state votes primarily by mail so explanations can come to voters with their bal in north carolina we vote either in early vote one stop site or we vote on election day we have linked the ballots usually optical scan ballots not an opportunity for extensive explanation to voters of  the rather inconsistent approach taken for a partisan general election for judicial candidates from that approach taken for up from all other candidates but that's the moment at which voters are confronted with the numerous candidates bearing a d or an hour by their name without any indication without in the opportunity to know that there was candidates were chosen by their party or what and in her campaign that led up to the election i our wasn't there isn't there a campaign that leads up to the elect well well certainly there there will be a campaign but it's it you know his body has different resources in the campaign and everybody can promote his own candidacy and but the the dilutes the mark of the democratic party the d that appears on that ballot and we respectfully contend that the party suffers and injury which is greater a burden which is substantially greater than the justification which has been offered by the state all right thank you thank you you have a few minutes m thank your honour's briefly the just name are you were reading in washington state grange i believe several lines below that is the quote that parties do not gain such a right being to control the ballot simply because the state affords candidates the opportunity to indicate their party preference on the ballot well this basically the safest you're saying that it's actually it's not just washington grade it's ten minutes it goes all the way  s the ballot is not meant to convey information that's correct your honor and what we would also show is that as far as a concern about educating the voters what mr wallace's talked about is there may be a period for education between a filing date and his desired method of choice via primary and that would run from february generally to may but he has the opportunity any party does from the filing period in june to the election ballot in november to educate the voters as however they see fit so it is that people will get on the ballot have to present the titian with a sufficient number of names on those signatures the words how does a person get on the ballot under this process i was the person running for judge it on that in this particular act the way that they do that is they sign a candidacy form saying that they would like to run for judge and that is verified by the county board to make sure that their residency requirement is correct for a local race or that wouldn't necessarily need for a state race  it's also selecting and verifying that their party self identified party affiliation is the same as on their voter registration and into this act both anybody who self identified with a party or was on affiliated with the party would have the same access to the ballot so ordinary they don't they don't collect signatures they just say they want to be a candidate if they're registered voter there on the ballot in this act yes ordinarily an i don't know i don't seems like a lot to like coming from us and want to be deciding the case there that we might change but i would be one of those who would say please but the last point that i would want to make your honor is that the the parties can and always do have the ability under the administrative code in north carolina to take to give out placards that feature the faces and names of their nominees and those are fine to take into the ballot booth with you and the parties have to my knowledge always done that the republicans will give out their nominees the democrats will give out theirs libertarians can give out theirs and those people that want to know who the party nominee is has that information sitting there right in front of them the same as they have in every single race that has ever happened in north carolina and i did it yesterday just to