- The North Carolina Supreme Court split, 4-3, in determining that Robert F. Kennedy Jr. will not appear as a presidential candidate on the state's election ballot.
- Four Republican justices voted to uphold a ruling Friday from the state Court of Appeals. Appellate judges ordered the State Board of Elections to honor Kennedy's request to have his name removed from the ballot.
- Both Democratic justices and Republican Justice Richard Dietz dissented from the high court's decision.
- State elections board Executive Director Karen Brinson Bell responded to the ruling with an email instructing county elections boards to continue reprinting ballots. Bell urged local boards not to mail any ballots "until a date is determined for all counties to do so."
The North Carolina Supreme Court has split, 4-3, in determining that Robert F. Kennedy Jr. will not appear on the state’s election ballot as a presidential candidate. Republican Justice Richard Dietz and the court’s two Democrats dissented.
The majority upheld a unanimous decision Friday from an unnamed three-judge panel of the state Court of Appeals. That court had overturned a decision Thursday from Wake County Superior Court Judge Rebecca Holt.
Kennedy had appealed the State Board of Elections’ Aug. 29 decision to keep his name on the ballot as the presidential candidate of the new We the People Party. The elections board split, 3-2, in making that decision. Democratic board members voted to keep Kennedy’s name on the ballot. Republicans supported removing his name.
Kennedy had suspended his presidential campaign on Aug. 23 and endorsed former President Donald Trump, the Republican nominee. Holt’s ruling upheld the elections board’s decision.
“[T]he elections process should ensure that voters are presented with accurate information regarding the candidates running for an elected office,” according to a seven-page state Supreme Court order signed Monday by Justice Trey Allen, a Republican. “Where a ballot contains misleading information or inaccurately lists the candidates, it risks interfering with the right to vote according to one’s conscience.”
“Neither party in this case disputes that plaintiff submitted a resignation of candidacy,” according to the order. “Therefore, by law, a vote for plaintiff in this election will not count. But if plaintiff’s name appears on the ballot, it could disenfranchise countless voters who mistakenly believe that plaintiff remains a candidate for office. The trial court did not appropriately weigh this consideration in its ruling, instead focusing on the minimal harm to plaintiff himself and the significant resources the State would need to expend to create an accurate ballot for this election.”
“Moreover, although N.C.G.S. § 163-165.3(c) requires the State Board to promulgate rules for the reprinting of ballots ‘where practical’ in response to replacement candidates or other late changes, we are unpersuaded by the practical objections defendants raise in their submissions to this Court,” the order continued. “To a large extent, any harm suffered by defendants in light of the Court of Appeals’ order is of their own making.”
The order noted that state elections board Executive Director Karen Brinson Bell learned on Aug. 23 that Kennedy planned to ask for his name to be removed from the ballot. Yet Bell instructed county elections boards to continue printing ballots with Kennedy’s name.
“We decline to grant defendants extraordinary relief when they are responsible for their own predicament,” according to the order.
“We acknowledge that expediting the process of printing new ballots will require considerable time and effort by our election officials and significant expense to the State,” the order added. “But that is a price the North Carolina Constitution expects us to incur to protect voters’ fundamental right to vote their conscience and have that vote count.”
Allen, Justices Tamara Barringer and Phil Berger Jr., and Chief Justice Paul Newby made up the majority. All are Republicans.
The majority order prompted 39 pages of additional writing from four justices.
“I write separately to emphasize that, if we were to reach the merits of this case, more should be done to uphold and preserve the integrity of the upcoming election,” Berger wrote in a concurrence. “There are now hundreds of thousands of invalid ballots in existence, if not more.”
“Thus, there is the potential, however slight, that North Carolina voters could acquire both versions of seemingly legitimate ballots during the 2024 election,” Berger added. “Whether by unintentional acts or by those who would deliberately inject chaos into the election, the substantial confusion that could result would appear to warrant attention.”
The state Appeals Court order “does not go far enough,” Berger wrote. “All previously printed ballots listing Robert F. Kennedy, Jr.’s name should be destroyed, and the director of the State Board of Elections and the director of each county Board of Elections should be required to certify destruction of these invalid ballots to maintain public confidence in the upcoming election.”
Democratic Justices Anita Earls and Allison Riggs wrote separate dissents.
“The magnitude of the harm wrought by the Court of Appeals’ order, both to voters of the state who have been guaranteed by their elected legislature sixty days in which to receive and cast absentee ballots and to the overworked and underpaid public servants working as election administrators in a time when such service has subjected those public servants to harassment and peril, … is egregious and unjustified,” Riggs wrote in an 18-page dissent. “A currently anonymous panel of three intermediate state appellate judges have taken into their hands the power to significantly shorten the absentee voting period and to throw into disarray preparations for a presidential election in this state.”
“[C]ontravening state and federal laws to satisfy the shifting desires of a particular political candidate and his political party erodes the rule of law and contributes to a loss of faith in the impartiality of the state judiciary,” Earls wrote in her own 11-page dissent.
The Appeals Court’s ruling “amounts to a suspension of state law not mandated by the representatives of the people, and grants a favor to one candidate not extended to other candidates, namely, additional time to decide whether to stand for office.”
Riggs and Earls supported the arguments in both dissents.
The lone Republican to vote against the majority did not join either Riggs’ or Earls’ dissent. Dietz’s seven-page dissent credited the majority for “thoughtful analysis” and labeled it “entirely reasonable.”
“Still, I believe this Court’s role is to follow the law as it is written. In my view, our election laws permitted the State Board of Elections to decline to reprint new ballots but also compelled the Board to take other steps … to inform voters that Kennedy resigned and that a vote for him would not count.”
State law permitting Kennedy to resign as a candidate before elections officials mail absentee ballots “is not the same as having the candidate’s name removed from the ballot,” Dietz wrote.
“I do not believe Kennedy’s right to be removed from the ballot is governed by the ‘resign as a candidate’ provision in N.C.G.S. § 163-113,” Dietz explained. “Instead, it is governed by the separate ‘Late Changes in Ballots’ provision in N.C.G.S. § 163-165.3. That provision permits the Board of Elections to authorize ‘reprinting, where practical, of official ballots’ as a result of ‘late changes.’”
“Here, the State Board of Elections properly determined that it would not be practical to reprint the ballots,” Dietz added, citing a requirement under the Uniform Military and Overseas Voters Act to mail absentee ballots by Sept. 6.
Despite his dissenting vote, Dietz questioned the State Board of Elections’ estimate of the time needed to reprint ballots without Kennedy’s name. Most of the original printed ballots arrived within four days of election officials’ requests, Dietz wrote. The state estimated a 12- to 13-day timeline for the reprinting.
“Why would it take more time to redo these ballots than it did to create the first set of ballots two weeks ago, when elections workers presumably would work longer and harder because of the emergency nature of this ballot change?” Dietz asked. “And why would reprinting ballots to remove Kennedy’s name — with the Board presumably requesting expedited service from the vendor because of the looming deadline — take more than twice as long as printing the original ballots two weeks ago when there was no exigency?”
“Simply put, I question whether the State Board of Elections and its staff were sufficiently vigorous in assessing how long it truly would take to prepare new ballots on an expedited basis,” Dietz wrote.
Bell responded to the ruling Monday evening with an email addressed to the “North Carolina Elections Team,” including members and staff of county elections boards.
The Supreme Court has denied the State Board’s appeal of the Court of Appeals’ order to reprint ballots. …
This means that reprinted ballots must continue to be prepared, removing the We The People party line from the presidential contest.
For now, existing ballots with the We The People Party line in the presidential contest must be strictly separated and moved to storage to avoid any accidental usage in this election. We will provide further guidance on record retention soon.
DO NOT mail any ballots until a date is determined for all counties to do so. We will continue to consult with counties and ballot vendors to determine the feasible start date for distributing absentee ballots statewide, mindful of the goal to meet the 45-day deadline in federal law for military and overseas citizen ballots, September 21. We have already begun discussions with the U.S. Department of Defense to seek a potential waiver of that deadline, if ballots are not ready in all counties by that date.
We know the hardship this imposes on you and your counties, and we deeply regret that. This decision raises hard questions about when ballot preparation is ever truly final before ballots are distributed. That may need to be factored into budgets going forward. In this instance, 27 counties had already started printing their ballots when Mr. Kennedy made his announcement on August 23, and almost all other counties had finalized their proofs. By the time Kennedy’s campaign got a message to the State Board asking about the process to withdraw the evening of August 26, more than half of counties had started printing ballots and, at that point, it would have been impossible to reprint and meet the 60-day deadline. (The decision mistakenly states that the State Board was contacted by the Kennedy campaign on August 23.)
For now, of course, our task in clear. We must prepare new ballots and distribute them to requesting voters as soon as possible.
Thank you for all that you do for your counties’ voters. Your work means everything.