by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
Governor Roy Cooper vetoed Senate Bill 360 yesterday. The bill was designed to stop collusive lawsuit settlements, in which administration officials agree to terms with plaintiffs to circumvent or alter laws that both sides in the lawsuit don’t like.
Such a collusive settlement was reached between the North Carolina State Board of Elections (SBE) and Democratic Party attorney Marc Elias in September of 2020 after absentee voting in the general election had already started:
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.
The resulting settlement between Bell and Elias was just the kind of agreement between two parties with “no real conflict between them” that the Supreme Court warned us against in Lord v. Veazie.
The United States Supreme Court noted in Lord v. Veazie that the problem with such collusive settlements is not that there is a settlement, but that there was an agreement between two parties with the same interest (in this case, circumventing election laws that both sides wanted to alter) to the detriment to a third party (the General Assembly that passed those laws):
The objection in the case before us is, not that the proceedings were amicable, but that there is no real conflict of interest between them; that the plaintiff and defendant have the same interest, and that interest adverse and in conflict with the interest of third persons, whose rights would be seriously affected if the question of law was decided in the manner that both of the parties to this suit desire it to be.
North Carolina already has a law that gives legislative leaders the authority to intervene as defendants in lawsuits over the North Carolina Constitution or laws passed by the General Assembly. They were intervening defendants in the lawsuit between Elias and the SBE. The problem is that the judge in the case chose to cut them out of the settlement process. Senate Bill 360 was designed to close that loophole in the law. Until that loophole is closed, the executive branch can continue to use collusive settlements to essentially rewrite laws in violation of the separation of powers on which our constitutional order rests.