by Donna Martinez
Former Senior Writer and Editor, John Locke Foundation
“Legislators, regardless of party, have an interest in making sure that the laws
they pass are not dismantled through collusive lawsuit settlements
between executive agencies and like-minded litigants.”
From Andy Jackson’s Jan. 19 analysis of election integrity in North Carolina
You may not even realize it, but the problem Andy Jackson succintly points out above is actually occurring in North Carolina. It’s time to put a stop to it and protect North Carolinians from friendly ‘opponents’ who team up to overturn, through court settlement, a law they couldn’t overturn in the General Assembly. The ‘friendlies’ don’t have a disagreement. The lawsuit is simply a way to achieve a legislative goal — without the involvement of the legislature.
How have you been impacted? Andy, who is director of the Civitas Center for Public Integrity at the John Locke Foundation, explains in detail the real-world impact of a pre-2020 election collusive settlement with the North Carolina Board of Elections in a case brought by big-time Democrat attorney Marc Elias.
SBE Executive Director Karen Brinson Bell attempted several times in 2020 to use the coronavirus pandemic as a pretext to weaken laws protecting election integrity.
She first attempted a direct approach, asking in two memos (dated March 26 and April 22) for the General Assembly to make a host of changes to our election laws. While many of her requests were innocuous, she included several proposals that would have weakened election integrity, such as eliminating the witness requirement for absentee-by-mail ballots, ending protections from manipulation or ballot harvesting for those in assisted living facilities, and ending the requirement that all early voting locations in a county operate during the same hours.
In response, the General Assembly passed H1168 (Bipartisan Elections Act of 2020) by wide, bipartisan majorities. The act was signed into law by Gov. Roy Cooper on June 12, 2020. While with this law the General Assembly granted many of Bell’s requests and lowered the witness requirement from two witnesses to one, they rejected others, including her requests on early voting locations and assisted living facilities.
At the same time, Bell attempted to expand her emergency powers broadly by changing SBE regulations, including granting her the power to delay or modify “the deadline for receipt of postmarked absentee by-mail ballots”(page 6). The North Carolina Rules Review Commission (RRC), however, unanimously rejected her attempt on May 21. Commissioner Tommy Tucker noted that, if approved, the rules changes Bell requested would have circumvented election law:
“There is a gross misunderstanding of what the RRC purview is … or it is a devious stunt by the Board of Elections,” said Commissioner Tommy Tucker. “I’m concerned this is an end-run around the public, the General Assembly, and the courts.” [Ellipses in original.]
So, with many of her requested changes to election laws rejected by the General Assembly and her attempt to gain the power to change those laws by administrative fiat struck down by the RCC, Bell and the SBE would have no choice but to follow current election law, right?
In September, board members of the SBE authorized Bell to negotiate a settlement of a lawsuit brought by Democratic attorney Marc Elias. Soon after, two members of the board resigned in protest, saying that they had been misled by SBE staff and NC Department of Justice attorneys about the case. An additional problem is that Bell had already publicly supported many of the positions taken by Elias in the lawsuit to weaken election integrity laws passed by the General Assembly.
Frustrating, yes. But, Andy notes, there IS a way to protect North Carolinians from collusive settlements.
To protect us from similar collusive settlements designed to circumvent North Carolina laws, especially election laws, the General Assembly needs to strengthen and clarify G.S. 1-72.2(b) so that judges cannot cut legislative intervening defendants out of the loop on such settlements. While the particulars can be debated, adding something along these lines would probably be sufficient:
No executive branch official, department, agency, or board may settle in any judicial proceeding challenging a North Carolina statute or provision of the North Carolina Constitution without the consent of legislative intervenors.
For more background on the collusive settlement involving the state Board of Elections and big-time Democrat attorney Marc Elias, watch this compelling explanation by Locke CEO Amy Cooke from September 2020.