Outside the Beltway

North Carolina Removes RFK Jr From Ballot

A bizarre court decision requires violating state and federal law.

James Joyner · Friday, September 13, 2024 · 11 comments

Memeorandum pointed me to Mark Joseph Stern‘s Slate column declaring, “Robert F. Kennedy Jr. Has Sabotaged Early Voting in a Critical Swing State.”

The North Carolina Supreme Court tossed a grenade into the state’s election on Monday, violating both state and federal law to grant Robert F. Kennedy Jr.’s cynical, last-minute removal from the ballot. Its 4–3 decision will compel election administrators to destroy nearly 3 million already-printed ballots that featured Kennedy’s name and redesign 2,348 different ballot styles across the state to accommodate the eleventh-hour change. This complex process will significantly delay the distribution of new ballots—which will, in turn, unlawfully abridge early voting for everyone while jeopardizing the voting rights of service members overseas in clear contradiction of federal statute. It’s a nightmare for local election officials, who must now disregard the laws they’re sworn to uphold. And it’s an affront to North Carolinians at large, whose right to a fair, orderly election has been sabotaged by a lawless court and the candidate it so obviously favors.

Kennedy v. North Carolina State Board of Elections, Monday’s decision, is exactly what you’d expect from a court controlled by elected Republican justices. The facts are damning: After running for months as a third-party candidate, RFK Jr. “suspended” his campaign and endorsed Trump on Aug. 23. Kennedy then sought to selectively remove his name from the ballot, but only in swing states where it might help Trump. By the time Kennedy dropped out, the North Carolina State Board of Elections had informed candidates and parties that the deadline for replacing nominees would be Aug. 22.

Because his analysis is so stilted and over-the-top, I tend to read Stern’s columns with eyes half-rolled. And, indeed, on its surface, the linked opinion doesn’t seem particularly unreasonable:

To a large extent, any harm suffered by defendants in light of the Court of Appeals’ order is of their own making. Indeed, defendant Bell candidly admitted that she was aware on Friday, 23 August 2024, that plaintiff had suspended his campaign and intended to remove his name from ballots in battleground states. Additionally, a representative of plaintiff’s presidential campaign emailed the State Board on 23 August 2024 to inquire about removing plaintiff’s name from ballots, putting the State Board on notice that plaintiff intended to remove his name. Rather than following up with plaintiff or the We The People Party, defendant Bell instructed the County Boards of Election to continue the ballot preparation process, which they did over the weekend. By Monday, 26 August 2024, plaintiff contacted the State Board regarding the process for withdrawing. Nevertheless, the State Board did not instruct the County Boards
to pause ballot preparation. On Tuesday, 27 August 2024, the State Board received plaintiff’s formal withdrawal request but gave no further instructions other than stating that the We The People Party needed to submit a formal withdrawal request. And perhaps most strikingly, after the State Board received the We The People Party’s formal withdrawal request on Wednesday, 28 August 2024, and scheduled an emergency board meeting, director Bell instructed the County Boards to continue printing ballots. When the State Board held its emergency meeting on Thursday, 29 August 2024, it voted 3-2 that removing plaintiff’s name would not be practical in light of the current state of ballot production.

Thus, despite being on notice of plaintiff’s intention to withdraw his name from the ballot for nearly a week, the State Board directed the County Boards to continue ballot production, including over the weekend, rather than communicating and cooperating forthrightly with plaintiff and the We The People Party. We decline to grant defendants extraordinary relief when they are responsible for their own predicament. Cf., e.g., Creech v. Melnik, 347 N.C. 520, 529, 495 S.E.2d 907, 913 (1998) (“One who seeks equity must do equity. The fundamental maxim, ‘He who comes into equity must come with clean hands,’ is a well-established foundation[al] principle upon which the equity powers of the courts of North Carolina rest.”)

So, election officials raced ahead to print ballots with Kennedy’s name on them with the knowledge that he was dropping out. They could have avoided the headache they now face.

Except that the deadline exists for a reason:

Kennedy did not file his request for removal until Aug. 27, five days after the deadline and four days after he withdrew. By that point, county election boards were already printing ballots. Under state law, the board of elections may refuse a “late” request to remove a candidate from the ballot when removal is no longer “practical.” Another state law compels election officials to mail ballots to service members and others living overseas by Sept. 6. North Carolina’s state elections director testified that redesigning the ballot would take 18 to 23 days. So removing Kennedy’s name from the ballot—then designing and printing substitutes—would require election officials to violate state law. Even if these officials had begun removing Kennedy’s name the moment that he suspended his campaign, they could not have met the legal deadline.

Yet the North Carolina Supreme Court still sided with Kennedy. A bare majority ordered election officials to work around the clock to destroy 3 million ballots, redesign new ones for every locality, and mail them out as quickly as possible. The work and the cost of this undertaking falls primarily on badly underfunded county boards of elections. Monday’s decision also forces the board to shorten the early voting period, which was required by law to begin on Sept. 6. And the ruling may also push the state into a violation of federal law, which orders states to send absentee ballots overseas by Sept. 21. North Carolina election officials have warned the court that removing Kennedy may make it impossible to mail ballots by that date. It’s no exaggeration to say that the state Supreme Court is nullifying federal voting rights.

Stern suggests that the Republican-majority court was motivated by partisan concerns while eliding the possibility that the Democratic Secretary of State would be so tainted. I’m not sufficiently steeped in North Carolina politics, much less the subtle art of mind reading, to have a strong opinion on that front.

Nor, for that matter, do I have a strong sense as to whether Kennedy’s name being on the ballot would have any significant impact on the outcome of the race or even which direction it would go. The state voted for Trump by a 3.6% margin in 2016 and only a 1.3% margin in 2020 and has only gone Democratic once (2008 by 0.3%) since 1980. So, frankly, if it’s even in play Harris will win the Electoral College in a landslide.

Regardless, Stern is right here on the sheer mechanics. While I think starting early voting two months out from the election is absurd, it’s required under state law. Even if ballots were magiacally printed and distributed today, it’s already been delayed by a week. And it’s going to take a Herculean effort to meet the Federal deadline for mailing absentee ballots to servicemen overseas.

Regardless of motivation, that strikes me as an unjust outcome. Surely, the harm to voters of a shortened voting window outweighs whatever confusion leaving a minor candidate who has withdrawn from the race creates.