by Dr. Donald R. van der Vaart
Former Secretary, North Carolina Department of Environmental Quality
Ordinarily, when two parties strongly disagree about what the law says, they may take the matter before a judge through litigation. As the litigation grinds on, however, the parties may settle their dispute to avoid the costs of litigation, while still escaping with a compromise of their respective positions.
But what if the two parties actually 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 times and requires exposing their collective scheme to public scrutiny. Instead, unethical lawyers have devised a process known as “sue and settle.”
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.
To add insult to injury, sometimes the settlement includes a substantial payment from the government — meaning the taxpayers — to the party who filed the lawsuit.
The recent “settlement” on NC’s voting laws appears to be an example of this abusive process. The settlement is contrary to the plain language of the law, but once it were to be approved by the judge, it would become as enforceable as any law — without the need of the legislative process.
Anticipating the challenges COVID-19 might present in the voting process, while seeking to retain some of the ballot-protections of the absentee process, the General Assembly passed House Bill 1169, which provided for more flexibility in voting. This law including reducing the number of witnesses needed for absentee ballots from two to one. The bill was passed by wide, bipartisan margins — 37–12 in the Senate, and 105–14 in the House — and it was signed into law by Gov. Roy Cooper.
Some far-left Democrats, however, thought the new law didn’t go far enough. They wanted to eliminate even more of the protections contained in the law, thereby increasing the opportunity for voter fraud and throwing the election process into doubt. 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.
One of the issues raised in these lawsuits was the witness requirement. But earlier this month, they lost one of their cases before a three-judge panel in Wake County Superior Court. Judges affirmed the constitutionality of the witness requirement.
Having the kind of mail-in ballots with limited protections against fraud is important to Democrats. In Florida, mail-in ballots are providing Democrats a wide advantage. In NC, more than 150,000 absentee ballots have already been cast, with a wide majority of those coming from Democrats.
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.
The North Carolina legislature is the people’s voice. Only the General Assembly is constitutionally vested with the power to make laws in North Carolina. To the hard left and Josh Stein, however, it is simply a stumbling block to circumvent.