On Tuesday, Democrats filed an emergency motion to stay federal Judge James Dever’s decision last week to order the North Carolina State Board of Elections to place the Green Party’s candidates on the ballot. The motion — filed by the Democratic Senatorial Campaign Committee and the North Carolina Democratic Party — asked the left-leaning Fourth Circuit Court of Appeals for the stay until an appeal can be heard. The motion says NCGP missing the July 1 candidate-filing deadline was ” a problem of its own making,” due to fraud that had to be investigated fully by the NCSBE.  

“I think it’s a last ditch effort to block the Green Party from exercising its First Amendment rights as it is entitled to do after complying with all applicable provision of North Carolina law,” Oliver Hall, the N.C. Green Party’s attorney, told Carolina Journal in an Aug. 9 interview. “I don’t think they’ll succeed and we’re going to oppose their efforts just as we did in the district court.”

The NCSBE voted on Aug. 1 to approve the NCGP as a party, after an earlier vote on June 30 not to certify because of questions of fraud. The NCSBE asked the county boards of elections that had certified the NCGP’s signatures as valid to investigate and recertify all signatures a second time. After this process was repeated, the NCGP still had 1,607 signatures over the 13,865 necessary. The investigation also did not seem to uncover any system-wide conspiracy by the Green Party, with the focus mostly on two collectors that had likely created fraudulent signatures to charge the party more money. 

In the motion for a stay, the Democrats say, “Granting NCGP ballot access will irreparably harm Appellants [Democrats] by forcing them to compete with a party that did not comply with the statutory deadline for naming candidates and that is not eligible for ballot access, requiring Appellants to expend party resources they would otherwise use for other purposes. Courts have recognized that political parties are harmed when forced to compete against “an allegedly ineligible rival on the ballot’ because ‘doing so hurts the candidate’s or party’s own chances of prevailing in the election.’”

The Democrats say that because the ballot-printing deadline is quickly approaching — on Aug. 12 — a failure to stay Dever’s ruling before then will mean any future victory by Democrats will have come too late. 

“Given the state’s need to finalize its ballots, this harm cannot be ameliorated by a favorable ruling for Intervenors at a later date, which would likely come well after the State distributes ballots to overseas voters,” the motion said. “Even if Appellants ‘are ultimately successful on the merits, there is no guarantee that this case will be resolved quickly enough to ensure that any relief the Court orders could be implemented in time for this fall’s general election, particularly in light of the required timeline for preparing ballots.’”

The Democrats also said that the Greens were only unable to place their candidates before the July 1 deadline because of the NCSBE investigation, and that because that investigation was sparked by fraud by the NCGP, that missing the deadline was their own fault. 

“It does not change matters that NCSBE did not vote to certify NCGP until August 1,” Democrats said. “As explained, the district court never found the Board acted improperly in waiting to certify until that time, nor could it have. It acknowledged that ‘[g]iven evidence of alleged fraud,’ the Board was required to ‘open an investigation into the sufficiency of the Green Party’s petitions.’ And the court simply ignored undisputed evidence showing that NCGP’s delayed certification was a problem of its own making.”

Hall called this argument “nonsense,” saying that it’s been refuted by the state board of elections. “It’s also refuted by the fact that the N.C. Green Party had far more validated signatures than the state law requirement at all times during this litigation,” Hall said. “All of this has already been refuted and the Democrats are attempting to use this litigation as a platform to amplify their false and defamatory allegations against the Green Party. And it’s not going to work.”

To the argument that the NCSBE was open to adding the Greens later if they were unable to make the July 1 deadline, the Democrats said, “NCSBE’s willingness to set aside the deadline through a proposed consent order is irrelevant. While parties may ‘settle their litigation with consent decrees, they cannot agree to ‘disregard valid state laws.’”

The DSCC and NCDP are represented in their appeal by the Elias Law Group of Washington, D.C., a powerful law firm representing Democratic interests around the country; and Patterson Harkavy, a Chapel Hill-based firm often used by left-leaning activists in North Carolina. 

The Fourth Circuit has called for all parties to submit a response to the Democrats’ motion for a stay by noon on Aug. 10. Hall said the Green Party “will do so.” The motion says that counsel for the NCSBE (which has been Attorney General Josh Stein) “indicated that they plan to file a response to this motion,” as well.

If the Fourth Circuit rules in the Democrats’ favor and stays Dever’s ruling, the Greens would have to appeal, likely to the U.S. Supreme Court, quickly in order to be placed back on the ballot in time for the Aug. 12 ballot deadline.

“The Democrats are running out of time,” Hall said on this approaching deadline. “And the state board of elections has confirmed that the Green Party has complied with all requirements under N.C. law. The district court Judge Dever has reached the same conclusion. He entered a very thorough, very soundly reasoned order requiring the state board to place the Green Party and its candidates on the ballot in November 2022. And there really is no basis for disturbing that on appeal.”

In terms of the Fourth Circuit being more Democrat-friendly in reputation, Hall said, “I don’t worry about the partisan makeup of the courts or particular judges partisan affiliation. I worry about the constitutional issues, the legal issues, and the facts. And they all demonstrate that the Democrats don’t have a leg to stand on here.”