RFK, elections board await Appeals Court’s decision in ballot dispute

Robert F. Kennedy Jr.’s lawyers filed paperwork at 10:22 p.m. Thursday asking the North Carolina Court of Appeals to step into a legal dispute over Kennedy’s name appearing on the state’s election ballot.

Kennedy is seeking a writ of supersedeas, temporary stay, and temporary injunction from the state’s second-highest court.

The request follows Wake County Superior Court Judge Rebecca Holt’s decision Thursday to reject Kennedy’s motion for a temporary restraining order. Kennedy’s lawyers had asked Holt to block the State Board of Elections from moving forward with ballots including Kennedy’s name as presidential candidate for the new We the People Party.

Holt agreed to stay her ruling for 24 hours.

Friday is the day scheduled for election officials to start mailing absentee ballots for the November election.

“In this action, Kennedy timely complied with all requirements set forth under state law in order to remove his name from North Carolina’s general election ballot prior to September 6, 2024,” his lawyers wrote to the Appeals Court. “This statutory compliance notwithstanding, the North Carolina State Board of Elections (‘NCSBE’) declined to remove Kennedy from the ballot, relying on their own indeterminate, subjective ‘practicality’ standard.”

“Kennedy brought suit, and the trial court has now denied Kennedy injunctive relief which would halt the printing and mailing of ballots with his name on them while this issue is decided,” the court filing continued. “But once ballots are mailed after September 6, 2024, the issue becomes moot — thus, absent this Court’s issuance of a writ of supersedeas, staying the trial court’s order and entering a temporary injunction to preserve the status quo, Kennedy will suffer irreparable harm and be denied his right to a meaningful appeal.”

The state elections board’s lawyers responded Friday morning.

“As recently as August 21, 2024, Plaintiff’s political party was litigating in an effort to ensure his name would appear on North Carolina’s ballot in November,” the state board’s lawyers wrote. “Two days later, Plaintiff held a press conference, in which he stated that he was ‘suspending his campaign, but not terminating it.’ He continued: ‘My name will still be on the ballot in most states. . . . But in about ten battleground states where my presence would be a spoiler, I will remove my name and urge voters not to vote for me.'”

“Plaintiff claims that the State Board should have known, based on this vague pronouncement, that he was requesting to have his name removed from North Carolina’s ballot,” the state board’s court filing continued. “But five days elapsed — until August 28, 2024 — before Plaintiff’s party (the We The People Party or ‘WTP’) formally requested his removal from North Carolina’s ballot.”

By that time, “the State Board had already substantially completed its ballot-preparation efforts,” board lawyers wrote.

The state board emphasized Holt’s finding that Kennedy would suffer “zero practical, personal, or professional harm” by remaining on the ballot.

“Indeed, even now, Plaintiff is continuing to fight for his name to be on the ballot in at least two other states,” board lawyers wrote. “In this context, the trial court rightly found that Plaintiff’s cries of ‘irreparable harm’ ring entirely hollow.”

The elections board “would suffer significant harm” if courts agree with Kennedy. “Plaintiff does not seek conventional injunctive relief that would simply preserve the status quo while litigation unfolds,” according to the court filing. “Instead, Plaintiff would have the State’s entire ballot-preparation process stop and reset, costing the State and counties untold amounts of money and constricting by at least two weeks the time period in which voters can cast their ballots.”

A three-judge panel of the 15-member Court of Appeals will consider Kennedy’s petition. Court rules will keep the names of participating judges secret for 90 days.

Holt signed an order Thursday afternoon denying Kennedy’s request for a temporary restraining order against the State Board of Elections. The board had voted last week against Kennedy’s request to have his name removed as a presidential candidate.

Kennedy is the plaintiff in the case. The State Board of Elections is the defendant.

“After weighing the potential harm to Plaintiff if injunctive relief is not issued against the potential harm to Defendants if injunctive relief is granted, the Court concludes that the balance of the equities weighs substantially in Defendants’ favor,” according to Holt’s order.

“The Court finds that Plaintiff will suffer no practical, personal, or pecuniary harm should his name remain on the ballot,” the order continued. “In contrast, if the State were enjoined and required to reprint ballots, the harm to Defendants, county boards of elections, and voters would be substantial.”

Kennedy filed suit against the elections board on Aug. 30, one day after a party-line 3-2 board vote denying Kennedy’s request to remove his name as a presidential candidate.

He dropped out of the presidential race on Aug. 23 and endorsed former President Donald Trump, the Republican nominee.

We The People Party had selected Kennedy as its presidential candidate. The party won a court battle against the North Carolina Democratic Party earlier in August to remain on the ballot.

The state elections board’s three Democrats voted against removing Kennedy’s name from the ballot. The two Republican board members supported the request.

The initial complaint noted the elections board’s approach to ballot access for the We The People Party.

“Not only is NCSBE’s refusal to recognize Kennedy’s statutory rights untethered from any legal justification or precedent, but it is a stark departure from NCSBE’s own position in

defending its approval of a minor political party in North Carolina called We The People Party of North Carolina,” Kennedy’s lawyers wrote. “Namely, that if one follows the plain language of the controlling statutes, then there is no further test or inquiry NCSBE or the court may impose. That principle is just as true today as it was when NCSBE made that argument to this court a mere two weeks ago.”

“The facts here mirror that which this court previously found persuasive: the statutory procedures and requirements to remove Kennedy from the ballot were followed, just as

they were when he and We The People were seeking to have his name added to the ballot,” the complaint continued. “The only fact that has changed in the intervening period is NCSBE’s position on whether it may superimpose their own subjective test atop the statute’s plain language. This Court should reject that invitation. The operative question and the only question is whether or not Kennedy’s withdrawal complied with North Carolina law. It did.”

During an Aug. 29 elections board meeting, Democratic members argued that removing Kennedy’s name would be impractical, given that 1.7 million ballots already had been printed, and would cost counties that had already printed ballots to pay more money to have new ones printed. They also said they had to follow statutes stating that absentee ballots, including those going to military members and citizens overseas, must be sent 60 days before the election or Sept. 6 for this year’s election.

NCSBE Associate General Counsel Adam Steele said that candidates usually have until the Sept. 6 deadline to remove themselves from the ballot. Still, since this request is about presidential and vice presidential candidates for electors, it is governed by a different statute, NC General Statute 163-209. He said the real decision for the board was to determine whether it was practical to reprint ballots.

Executive Director Karen Brinson Bell noted on Aug. 29 that 80 out of 93 counties had already begun producing absentee ballots, and 67 counties had or would receive their supply of absentee by-mail ballots by the end of that day.

Bell estimated that the costs would be in the high six-figure range to reprint ballots for the vendor that covers those 93 counties.