The past two weeks have exposed the attempt by the NC State Board of Elections (SBE) to functionally eliminate the witness requirement for absentee ballots through a collusive settlement on September 22 with Democratic attorney Marc Elias. In the immediate aftermath of that settlement, the two Republican members of the SBE board resigned, saying that they had been misled by SBE and NC Department of Justice officials.
The SBE attempted to justify gutting the witness requirement a couple of ways, first linking it to the September 22 settlement then eventually saying it was required by an August 4 injunction from a federal judge. That judge, William Osteen made it clear in no uncertain terms that the SBE using his injunction that way was wrong (page 10):
…to the degree this court’s order was used as a basis to eliminate the one-witness requirement, this court finds such an interpretation unacceptable.
That set up a day of competing court cases late last week. To put it very briefly:
- Friday, October 2: Wake County Superior Court Judge Bryan Collins approved the deal between the SBE and Elias. That approval would have given the SBE the greenlight to transfer the rational for gutting the witness requirement from Judge Osteen’s August 4 injunction to the settlement with Elias, but…
- Saturday, October 3: U.S. District Judge James Dever issued a temporary restraining order to block implementation of the SBE-Elias settlement until a hearing on October 16.
Judge Dever made it clear in his ruling why the SBE was wrong to cut a deal with Elias (page 15) and approve by Judge Collins on October 2 (page 15):
The NCSBOE inequitably and materially upset the electoral status quo in the middle of an election by issuing the [September 22] memoranda and giving the memoranda legal effect via the October 2, 2020 consent judgment… “[P]ublic confidence in the integrity of the electoral process” is of paramount importance… The memoranda, by materially changing the electoral process in the middle of an election after over 300,000 people have voted, undermines that confidence and creates confusion for those North CaroUnfans who have yet to cast their absentee ballots.
It is well past time for the “Purcell Principle” to apply
In related news, the US Supreme Court overruled a lower court, reinstating South Carolina’s witness requirement. The court had been divided in similar cases in the recent past, but not a single justice objected to restoring South Carolina’s law on witnesses for absentee ballots.
There are two reasons given in the court order for reinstating South Carolina’s ballot witness requirement, the first is deference to the elected branches (starting on page 1):
First, the Constitution “principally entrusts the safety and the health of the people to the politically accountable officials of the States.” (South Bay United Pentecostal Church v. Newsom)
This certainly would apply to any similar case involving North Carolina that might make it up to the US Supreme Court regarding this election. The “Bipartisan Elections Act of 2020” (H1169) was passed with large bipartisan majorities in both chambers of the General Assembly to address the need to safely conduct the 2020 election. Nobody got everything they wanted (I certainly did not) but that is the democratic process.
The second reason the Supreme Court reinstated applies to ongoing lawsuits against North Carolina’s election laws and the attempt by the SBE to get around those laws through settling those lawsuits (page 2):
Second, for many years, this Court has repeatedly emphasized that federal courts ordinarily should not alter state election rules in the period close to an election. See Purcell v. Gonzalez, 549 U. S. 1 (2006) (per curiam). By enjoining South Carolina’s witness requirement shortly before the election, the District Court defied that principle and this Court’s precedents.
That case, Purcell v. Gonzalez, gave rise to the “Purcell principle,” a “presumption against last-minute changes to election procedures.” In short, courts should hesitate to trifle with election laws just before an election because doing so would sow confusion among voters, candidates, and election officials. How much more does that apply to North Carolina, when hundreds of thousands of ballots have already been submitted?
It is well past the time for the NC State Board of Elections to stop the lawsuit settlement shenanigans and work with the election laws passed by the General Assembly and signed by the governor.