RALEIGH — Tiffany Lesnik, a lawyer in Wake County, arrived at the N.C. State Board of Elections on Dec. 4 to file her notice of candidacy. But an official told her she didn’t qualify.
Lesnik and other judicial candidates who are registered as independents have to submit a petition to the N.C. Board of Elections before they can file. That petition must include 2% of the registered voters in the candidate’s district. Candidates registered with a political party only pay a fee.
In 2016 and 2017, the state legislature voted to switch to partisan elections in all judicial races. Before those rule changes, voters couldn’t see party labels next to judicial candidates’ names on the ballots, and unaffiliated voters weren’t required to file petitions.
The new law means Lesnik must collect 1,918 signatures by March 3, the state primary date. She has gathered several hundred and hopes to reach the qualifying number by Valentine’s Day. She’s reached out to several individuals, organizations, and businesses, asking for a commitment to gather anywhere from five to 100 signatures.
“I knew immediately that I would not be able to collect all the signatures myself,” she told Carolina Journal. “Hopefully, we’ll have a huge influx of signatures in the next few weeks.”
Nonpartisan judicial elections are the exception to the norm in North Carolina history. After years of partisan races, Democrats who ran the General Assembly in the 1990s moved to drop party labels from judicial elections.
Advocates argued the change made sense because judges shouldn’t be viewed as partisan political actors. But Republican critics suspected the real reason behind the change was the growing number of GOP judicial election wins, says Mitch Kokai, senior political analyst at the John Locke Foundation. When Republicans began gaining steam near the end of the century, and party labels no longer played as well to Democrats’ advantage, the state switched to a nonpartisan system for Superior Court elections in 1996 and for District Court elections in 2001.
In 2010, Republicans won supermajorities in both houses. They passed a law restoring partisan elections for the Court of Appeals and Supreme Court races in 2016, and did the same for District and Superior Courts in 2017. Both bills passed along nearly straight-party lines.
Senate Leader Phil Berger, R-Rockingham, defended the legislation at the time, noting that party labels help voters decide who they want to elect. That’s especially true in cases in which the candidate has never held a judgeship or issued any rulings, Kokai noted.
The move also played to Republicans’ immediate advantage, in a state where Republicans have maintained voter support for nearly a decade.
Independents take the biggest hit as a result of the new rules. They now need a petition with enough signatures to represent 2% of registered voters in their district.
Meanwhile, unaffiliated voters compose 33% — or about 2 million people — of statewide registrations, per the most recent data from the State Board of Elections website. In Wake County alone, that number is slightly higher, with independents reaching about 38% of the voter population. That’s more than either Democrats’ 37% or Republicans’ 25%. The Libertarian, Constitution, and Green parties together make up less than 1%.
In 2016, when party labels returned to Court of Appeals races, only one appellate candidate filed unaffiliated: Donald Buie. In 2018, six unaffiliated candidates filed for District Court and three filed for Superior Court. For state House, three unaffiliated candidates filed in 2016, and two filed in 2018, according to candidate filings. All other independents during those two years filed for county offices or for Clerk of Superior Court.
“What everyone needs to understand is that Independents or Unaffiliated voters pose a real threat to the traditional two-party system in N.C. and around the states,” Lesnik wrote in a Facebook post. “Green Party and Constitutional candidates can be added to the ballot because they don’t pose a threat to the political system in Wake County.”
So far, only one candidate — a Democrat — has filed for the seat Lesnik is seeking in the 10C district. If she doesn’t receive enough signatures in time for the primary, her opponent automatically wins the race.
“What is most disturbing is that I am running for judge, not state Senate or the House, and why I have to work so hard to get on the ballot for what should already be a nonpartisan position is ridiculous,” Lesnik continued in the same post. “I am angry, and you should be angry, too!”
District Court Judge Kris Bailey, a Republican who also lives in Wake County, was first elected to office in 2000, a partisan election year. He then lost in 2004 and won in 2010 and 2014, all nonpartisan years. He won again in 2018, after the state switched back to partisan elections.
Most of the time, Bailey observed, judicial elections follow the currents of more mainstream political races. If it’s a red-wave year, Republican judges are more likely to win. If it’s a blue wave, the races will likely fall to Democrats.
“People care about their judges deeply, but we’re at the bottom of the ballot, and we don’t raise much money, so we don’t make a lot of noise,” he said.
For independents, Bailey says, 1% to 2% of the voting population is probably a fair threshold, though he admitted that in the larger Wake County districts, filling out a petition can be a “lot of work.”
Even during nonpartisan years, most candidates still affiliated themselves with a political party, Bailey said. During his past nearly two decades running for or serving as a District Court judge, he’s only heard of one or two people who talked about running as an independent.
“You almost can’t get your message out without your party endorsing you, putting you on their website, welcoming you to their meetings, sending emails for you, and putting the word out for you,” he said.
Independent candidates aren’t common in the legislature, either. One of the only recent examples is former Rep. Bert Jones, R-Rockingham, who served from 2011 to 2019. But Jones started caucusing with Republicans almost immediately after his election and officially joined the GOP in September of his first term, Kokai noted.
“It’s incredibly rare to see someone run as unaffiliated and also truly be independent of one party or the other,” Kokai said. “If you’re running for a legislative or statewide office and you’re truly unaffiliated, it’s very rare to get more than just a small handful of votes.”
Rebecca Holt, a Superior Court judge who won her 2016 election as an unaffiliated candidate, didn’t immediately respond to a request for comment.
Lesnik has been registered as unaffiliated for the past decade. To file as a member of a political party, she would have had to register with that party 90 days before the filing period. She might have done so, she said, if she had known about the petition requirement and had already made the decision to run three months in advance.
“For me, it has become a liberty issue,” she told CJ. “Everyone who wants to run for public office should be afforded that right. We should let the people decide who to elect as their public servants and not let government determine who should have the right to run.”