by Brenée Goforth
Communications Associate, John Locke Foundation
America has seen its fair share of workarounds to the legislative process (many of them discussed in a recent live stream hosted by the John Locke Foundation), but one tactical diversion Democrats recently used to endanger mail-in ballot protections has gotten many people talking. JLF’s Dr. Don van der Vaart explained the scheme in his most recent research brief, writing:
[W]hat if the two parties [agree] on what they want, but their collective desire is contrary to established law? Under our nation’s system of checks and balances, the parties would have to convince the legislature — the people’s representatives — of the merits of their position. This process takes time and requires exposing their collective scheme to public scrutiny. Instead, unethical lawyers have devised a process known as “sue and settle.”
Dr. van der Vaart explains the practice:
Under this strategy, one party sues the other party, usually a governmental agency, in a favorable court. The government does not dispute the selection of the court, nor the standing of the party. They seldom mount a vigorous defense. Challenging the venue or the standing and mounting a vigorous lawsuit are all actions a true adversary would take.
The two parties expeditiously agree on a “settlement” which both parties actually supported all along. Rather than placing the judge in the awkward position of rendering a decision that is contrary to law, they offer the settlement to the judge to make it enforceable. The parties both get what they want, and they get to avoid legislative and public scrutiny altogether.
Dr. van der Vaart then exposes its use in North Carolina:
The recent “settlement” on NC’s voting laws appears to be an example of this abusive process…
[Recently passed House Bill 1169 reduced] the number of witnesses needed for absentee ballots from two to one… Some far-left Democrats, however, thought the new law didn’t go far enough… The left filed multiple lawsuits. They hired the same law firm responsible for the now discredited, phony “Trump-Russia dossier” to represent them in court.
Even though the Left lost before a three-judge panel in Wake County Superior Court, they were not phased. Dr. van der Vaart writes:
So, undeterred by the Wake County Superior Court decision in a different lawsuit, the leftist organization led by Marc Elias quickly reached a “settlement” in another lawsuit against the NC State Board of Elections (NCSBE). Democrat Attorney General Josh Stein represents the Board. Under the terms of the settlement, the Board of Elections would evaluate absentee ballots without the prescribed witness protections and allow nine days after election day to have those ballots counted.
In other words, the settlement would enforce as law precisely what the law prohibits. The “sue and settle” scheme would work.