The September 22 collusive settlement between SBE Executive Director Karen Brinson Bell and Democratic attorney Marc Elias (the cumulation of a series of Byzantine maneuvers by Bell) has already damaged North Carolina’s election system, causing two state elections board members to resign and causing chaos for election administrators.
It has also been working its way up the judicial food chain.
Federal district Judge William Osteen Jr. issued conflicting rulings on the settlement on October 14. He struck down a part of the settlement that effectively ended the witness requirement for absentee-by-mail ballots, but only because the SBE had tried to tie it to an August 4 ruling he had made. He also found that parts of the settlement, such as extending the period after mail ballots are accepted after election day from three days to nine days, likely violated the Equal Protection Clause of the Fourteenth Amendment, but that his court should not reverse a state court’s settlement. In doing so, he inverted the Purcell principle that discourages courts from changing election laws just before or during an election.
The U.S. 4th Circuit Court of Appeals voted 12-3 to uphold Osteen’s ruling on October 20. Interestingly, the three-judge panel of the 4th Circuit assigned to the case was going to overrule Osteen and reinstate North Carolina’s election laws, but the judge on the losing side of the argument had other plans (dissent, page 48):
Finding that he had been outvoted, the dissenting judge immediately initiated an en banc vote before the panel could even circulate its views to the entire court, let alone to the public. This departure from our traditional process strikes me as needlessly divisive — even considering the matter’s time sensitive nature. I am saddened to see it, especially on a court that has taken such pride in its collegiality.
The dissent also laid out the strategy that Bell and Elias employed to usurp lawmaking authority from the legislature (page 22):
Let’s understand the strategy that is being deployed here. The status quo is the election law enacted by the North Carolina General Assembly. The Constitution grants state legislatures that power. Principles of democratic accountability reinforce it. The fair notice to all voters of election ground rules well in advance of Election Day commend it.
Then along come the disruptive efforts of federal courts or, in this case, a state election board to upend the set rules right in the middle of an election. The disruptors then hail their action as the new status quo, which is (the irony of this is rich) claimed to be beyond any power of disturbance.
It takes no special genius to know what this insidious formula is producing. Our country is now plagued by a proliferation of pre-election litigation that creates confusion and turmoil and that threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves.
Unsurprisingly, leaders of the General Assembly are appealing to the U.S. Supreme Court. Given the constitutional separation of powers question involved and the unusual nature of the appeals court ruling, the Supreme Court is almost certain to take up the case.
Furthermore, the NC State Board of Elections should fire Karen Brinson Bell after the 2020 election is certified.
UPDATE: The US Supreme Court decided 5-3 to not take up the case.