by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
As you would expect with an election-related bill, S326 includes changes made to Chapter 163 (Elections and Election Laws) of North Carolina’s general statutes.
However, probably the most important law affecting elections in North Carolina does not deal with Chapter 163 of the general statutes but Chapter 114 (Department of Justice). Senate Bill 360 would prohibit the NC Attorney General from entering into a lawsuit settlement in which legislative leaders are co-defendants without the consent of those legislative leaders. That would include cases in which legislative leaders join the case as intervening defendants.
I wrote in January about the problem with such “collusive” settlements and why they need to be stopped:
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.
Echoing Lord v. Veazie, the Bell-Elias settlement was between people with “no real conflict between them” 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.” Such collusive settlements undermine the separation of powers in the North Carolina State Constitution by allowing executive agencies to use friendly lawsuits as a guise to change laws through judicial fiat.
If the executive branch can enter into a collusive lawsuit settlement that changes a law passed by the General Assembly, then no law, including election law, is safe. That makes S360 the most important election law reform in the General Assembly this year.