By Mitch Kokai
Raleigh, NC – One might think an election ends when the last ballot is counted. Alas, final vote tallies in North Carolina and across the country are unlikely to end the 2020 campaign.
The election fight is bound to move from the ballot box to the courtroom. It’s an outcome easy to predict. Just look at the volume of election-related litigation that flooded the nation’s legal system in recent months. Then consider the U.S. Supreme Court’s recent refusal to act.
“Endless suits have been brought to change the election rules set by state legislatures.” Three judges on the 4th U.S. Circuit Court of Appeals offered that assessment on Oct. 20. “This pervasive jockeying threatens to undermine public confidence in our elections. And the constant court battles make a mockery of the Constitution’s explicit delegation of this power to the state legislatures.”
The judges delivered that opinion in a dissent. They disagreed with 4th Circuit colleagues who refused to step in and block disputed actions from North Carolina’s Democrat-dominated state elections board. The dissenters agreed with N.C. legislative leaders, Republican Party groups, and voters that the elections board had effectively rewritten state election law without authority.
And North Carolina was not alone. The dissenting judges devoted 27 pages to their concerns about similar lawsuits filed across the country. “This course is necessary in order to draw attention to the accelerating pace of pre-election litigation in this country and all the damaging consequences ensuing therefrom.”
A bipartisan majority in both chambers of North Carolina’s General Assembly agreed in June to set rules for the 2020 election. Lawmakers held deliberations and conducted votes roughly three months into the state’s response to the COVID-19 pandemic. The final votes were 105-14 in the state House and 37-12 in the Senate. Democratic Gov. Roy Cooper signed the bill into law.
Nearly four months later, after thousands of ballots had been cast under the rules set in June, the state elections board entered into a secretive agreement with Democratic activists. The agreement changed election rules. The board’s actions “draped a shroud of uncertainty” over this state’s elections, according to the 4th Circuit dissenters, threatening “even greater turbulence” if the rule changes were allowed to stand. “This chaos must end.”
“The victim of a last-minute interference, whatever its source, is the same: a federal election,” the 4th Circuit dissenters noted. “It is a difficult enough task to conduct an election in the middle of a pandemic without proliferating lawsuits and constantly changing rules.”
“Whenever interference occurs, it incentivizes an avalanche of partisan and destabilizing litigation against election rules duly enacted by state legislatures,” they added.
“This phenomenon is hardly unique to North Carolina,” the dissenters warned. “Around the country, courts are changing the rules of the upcoming elections at the last minute. It makes the promise of the Constitution’s Elections and Electors Clauses into a farce. It disrespects the Supreme Court’s repeated and clear command not to interfere so late in the day. This pernicious pattern is making the courts appear partisan, destabilizing federal elections, and undermining the power of the people to choose representatives to set election rules.”
By refusing to block the N.C. elections board’s actions, the Appeals Court majority “missed an opportunity to stand athwart this destructive trend.”
The problem was bad enough when the 4th Circuit dissenters issued their opinion, citing 385 election-related lawsuits filed across the country. A mere three days later, the number had jumped to 411 lawsuits. That was the figure cited in an Oct. 23 brief from national election-integrity group True the Vote. It urged the Supreme Court to correct the 4th Circuit’s mistake.
“[T]his case presents a unique opportunity to abate the chaotic flood of near-election litigation inundating this Court and our Republic,” True the Vote argued. Guidance from the nation’s highest court would help “lower courts struggling to deal with a flood of current and future near-election changes in election laws by state officials and courts.”
Without action from the justices, “this litigation flood will continue to overwhelm the courts.” True the Vote sought reaffirmation “that only legislatures have the authority and expertise to balance election access with election-integrity concerns, such as ballot fraud and a sudden flood of mailed ballots.”
A Supreme Court decision upholding the dictates of North Carolina’s June election law would “reassert what the Constitution requires, abate the litigation flood, and restore confidence in elections,” True the Vote argued.
It’s too late to put the genie back in the bottle for lawsuits linked to the 2020 elections. We’re likely to see more legal action in the days, weeks — perhaps even months — ahead.
The nation’s highest court offered no help as Election Day approached. Supreme Court justices voted 5-3 to avoid addressing the state elections board’s misdeeds.
Dissenting Justice Neil Gorsuch labeled the case “egregious.” “[E]fforts like these not only offend the Elections Clause’s textual commitment of responsibility for election lawmaking to state and federal legislators, they do damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures,” Gorsuch wrote. “Such last-minute changes by largely unaccountable bodies, too, invite confusion, risk altering election outcomes, and in the process threaten voter confidence in the results.”
Like the 4th Circuit dissenters and True the Vote, Gorsuch recognizes that an election process more dependent on courtrooms than polling places cannot stand.
Voters elect state lawmakers, who set election rules. Those rules should grant the final say in elections to voters, not high-priced lawyers or bureaucrats.
Mitch Kokai is senior political analyst for the John Locke Foundation.