NC Supreme Ct (4-3) requires ballots reprinted to remove RFK Jr

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This footnote in Justice Earls’s dissent should be completely dispositive. But the majority appears to have paid not one whit of attention to RFK’s standing.

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Presidential elections are unique and the processes for nominating and electing presidential candidates are governed by an entirely different article of the election code than the laws governing other elections. See N.C.G.S. § 163, Article 18. Notably, under state law, when a duly recognized political party decides to place a presidential candidate on the state’s ballot, the party, not the candidate, controls who that candidate is and what happens in the event of a vacancy. See N.C.G.S. § 163-209(a). In fact, when voting for president during a general election, voters are voting for electors. N.C.G.S. § 163-209(a) (“A vote for the [presidential] candidates named on the ballot shall be a vote for the electors of the party or unaffiliated candidate by which those candidates were nominated . . . .”). And the electors themselves are chosen by political parties. N.C.G.S. § 163-1(c).

This point raises further procedural concerns about whether an individual candidate, Mr. Kennedy, is even the proper party to bring a suit for the relief he wants––to withdraw entirely from the ballot without a replacement. Presumably he seeks to eliminate the presidential ballot line item of the party he represents, We The People, altogether. Bell Aff. Ex. K. But the political party, not the candidate, is the proper party to seek that relief. That party is not before us today.
 
The difference in the quality of the legal reasoning between the majority opinion and the dissents is absolutely incredible. The majority just mailed it in. They obviously feel no obligation to explain to the people of North Carolina how the law supports their decision, or how their decision can be squared with the contrary law cited by the dissenting judges (including one very conservative Republican).
 
lawtig02 said:
This footnote in Justice Earls’s dissent should be completely dispositive. But the majority appears to have paid not one whit of attention to RFK’s standing.

—————

Presidential elections are unique and the processes for nominating and electing presidential candidates are governed by an entirely different article of the election code than the laws governing other elections. See N.C.G.S. § 163, Article 18. Notably, under state law, when a duly recognized political party decides to place a presidential candidate on the state’s ballot, the party, not the candidate, controls who that candidate is and what happens in the event of a vacancy. See N.C.G.S. § 163-209(a). In fact, when voting for president during a general election, voters are voting for electors. N.C.G.S. § 163-209(a) (“A vote for the [presidential] candidates named on the ballot shall be a vote for the electors of the party or unaffiliated candidate by which those candidates were nominated . . . .”). And the electors themselves are chosen by political parties. N.C.G.S. § 163-1(c).

This point raises further procedural concerns about whether an individual candidate, Mr. Kennedy, is even the proper party to bring a suit for the relief he wants––to withdraw entirely from the ballot without a replacement. Presumably he seeks to eliminate the presidential ballot line item of the party he represents, We The People, altogether. Bell Aff. Ex. K. But the political party, not the candidate, is the proper party to seek that relief. That party is not before us today.
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The only analysis the majority put into reaching its decision was what outcome did they believe would most benefit Trump.
 
UNCMSinLS said:
That's pretty much "conservative" jurisprudence today.
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I’ll push back on this just a tiny bit. Most of the obviously political opinions authored recently by the conservatives on SCOTUS have at least read like credible legal analyses. I think most of them have been wrong, but it’s hard to say they’ve been mailed in.

This decision from SCONC reads like a really average sixth grade civics essay from a kid who forgot about the assignment until 11:00 the night before it was due. It’s just not intellectually competent. And Berger, Jr.’s concurrence is even worse.
 
lawtig02 said:
The difference in the quality of the legal reasoning between the majority opinion and the dissents is absolutely incredible. The majority just mailed it in. They obviously feel no obligation to explain to the people of North Carolina how the law supports their decision, or how their decision can be squared with the contrary law cited by the dissenting judges (including one very conservative Republican).
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Idk. The majority opinion is an embarrassment, but the dissents are pretty bad too. If Earle's point about standing is dispositive, then why was it in a fucking footnote? Also, it's not clear to me that it is correct. This is a bit far afield and I haven't read all of the statutes, but suppose a small party in TN convinced Kanye West to run on its ticket in April, during one of his episodes. So when West sobers up, he can notify the board that he intends to withdraw. At this point, though, there is a clear conflict between candidate and party: the tiny party obviously wants West on the ballot to gain votes from uninformed voters. Only the party gets to sue? This is also relevant below.

Anyway, I will grant that the opinions were hastily thrown together in a rushed posture, and so I can understand why they are quite disorganized and full of empty verbiage. But the logic just isn't right. Don't get me wrong: I don't think the ballots should be reprinted and I would have voted with the dissent (and not for partisan purposes, as it's unclear to me who benefits from his name being withdrawn), but not for the reasons stated in any of the opinions.

In particular, all of the dissenters point to the provision of 163-165 governing late changes to ballots. Here is the text of that provision:

"The State Board shall promulgate rules for late changes in ballots. The rules shall provide for the reprinting, where practical, of official ballots as a result of replacement candidates to fill vacancies in accordance with G.S. 163‑114 or other late changes. If an official ballot is not reprinted, a vote for a candidate who has been replaced in accordance with G.S. 163‑114 will count for the replacement candidate."

This statute is really about replacement candidates, right? "Other late changes" I suppose could mean withdrawal, though we'd be fighting context to support that reading. Maybe that thin branch is the strongest support available to govern a situation that the state legislature didn't foresee or address. But then you get Rigge's response to Kennedy's reasonable argument that "if I have a right to withdraw, what does that mean other than being removed from the ballot":

"His argument ignores the fact that he also represents his party, the We The People party, on the ballot. A political party in North Carolina is “[a]ny group o fvoters which, at the last preceding general State election, polled . . . at least two percent (2%) of the entire vote cast in the State for Governor or for presidential electors.” Currently, the WTP party does not have a candidate for Governor on the ballot. Therefore, if Mr. Kennedy’s name as presidential candidate for the WTP party is removed from North Carolina ballots, the party, which was only recognized as apolitical party in North Carolina on 16 July 2024, will no longer be recognized as a political party"

So basically the Rigge argument is that RFK's name should remain on the ballot because otherwise WTP won't be permitted to deceive voters into casting votes to help it gain status as a party. This is the Kanye hypo from above. Of all the ways to defend the state board's decision, this strikes me as the worst. It's not an argument that should ever win the day.

The legislature should fix this shit. It won't, but it should.
 
lawtig02 said:
I’ll push back on this just a tiny bit. Most of the obviously political opinions authored recently by the conservatives on SCOTUS have at least read like credible legal analyses. I think most of them have been wrong, but it’s hard to say they’ve been mailed in.

This decision from SCONC reads like a really average sixth grade civics essay from a kid who forgot about the assignment until 11:00 the night before it was due. It’s just not intellectually competent. And Berger, Jr.’s concurrence is even worse.
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Not Trump v. US. There was no law there. You are giving SCOTUS too much credit. In Brnovich, Kagan wrote, in dissent, that "the majority opinion mostly inhabits a law-free zone." She was right. The decision striking the limitations period for regulatory challenges was mostly free of law as well. It did have some gaslighting about a statute of limitations versus a statute of repose, which I guess wasn't mailed in but it also wasn't legal analysis.

Don't let SCONC blind you to SCOTUS. This SCONC opinion was written in a couple of days. The Supreme Court's emergency orders are often just as bad. That the Supreme Court usually gets to take its own sweet time accounts for the appearance of legal analysis, which is not at all the same as actual legal analysis.
 
superrific said:
Idk. The majority opinion is an embarrassment, but the dissents are pretty bad too. If Earle's point about standing is dispositive, then why was it in a fucking footnote? Also, it's not clear to me that it is correct. This is a bit far afield and I haven't read all of the statutes, but suppose a small party in TN convinced Kanye West to run on its ticket in April, during one of his episodes. So when West sobers up, he can notify the board that he intends to withdraw. At this point, though, there is a clear conflict between candidate and party: the tiny party obviously wants West on the ballot to gain votes from uninformed voters. Only the party gets to sue? This is also relevant below.

Anyway, I will grant that the opinions were hastily thrown together in a rushed posture, and so I can understand why they are quite disorganized and full of empty verbiage. But the logic just isn't right. Don't get me wrong: I don't think the ballots should be reprinted and I would have voted with the dissent (and not for partisan purposes, as it's unclear to me who benefits from his name being withdrawn), but not for the reasons stated in any of the opinions.

In particular, all of the dissenters point to the provision of 163-165 governing late changes to ballots. Here is the text of that provision:

"The State Board shall promulgate rules for late changes in ballots. The rules shall provide for the reprinting, where practical, of official ballots as a result of replacement candidates to fill vacancies in accordance with G.S. 163‑114 or other late changes. If an official ballot is not reprinted, a vote for a candidate who has been replaced in accordance with G.S. 163‑114 will count for the replacement candidate."

This statute is really about replacement candidates, right? "Other late changes" I suppose could mean withdrawal, though we'd be fighting context to support that reading. Maybe that thin branch is the strongest support available to govern a situation that the state legislature didn't foresee or address. But then you get Rigge's response to Kennedy's reasonable argument that "if I have a right to withdraw, what does that mean other than being removed from the ballot":

"His argument ignores the fact that he also represents his party, the We The People party, on the ballot. A political party in North Carolina is “[a]ny group o fvoters which, at the last preceding general State election, polled . . . at least two percent (2%) of the entire vote cast in the State for Governor or for presidential electors.” Currently, the WTP party does not have a candidate for Governor on the ballot. Therefore, if Mr. Kennedy’s name as presidential candidate for the WTP party is removed from North Carolina ballots, the party, which was only recognized as apolitical party in North Carolina on 16 July 2024, will no longer be recognized as a political party"

So basically the Rigge argument is that RFK's name should remain on the ballot because otherwise WTP won't be permitted to deceive voters into casting votes to help it gain status as a party. This is the Kanye hypo from above. Of all the ways to defend the state board's decision, this strikes me as the worst. It's not an argument that should ever win the day.

The legislature should fix this shit. It won't, but it should.
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Earls made the point in the body but explained it better in the footnote. I agree the language in the footnote should have just been included in the body, but just wanted to clarify that. To your hypo, I think Kanye would have a claim against his party, but I’m not sure why he would be entitled to injunctive relief against the state.
 
lawtig02 said:
Earls made the point in the body but explained it better in the footnote. I agree the language in the footnote should have just been included in the body, but just wanted to clarify that. To your hypo, I think Kanye would have a claim against his party, but I’m not sure why he would be entitled to injunctive relief against the state.
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Let's separate two scenarios. One is a timely request; the other is a after-printing request.

It seems to me that injunctive relief against the state is the only reasonable option in the first case. For one thing, it's the state statute that gives him a right to withdraw (or maybe gives him a right; let's assume arguendo that it's a qualified right but it might be more or less), so that would make the state the obvious defendant. Second, giving him a claim against the party seems to me woefully insufficient. The litigation could take a long time, well after ballot-printing and then we get the problem of the withdrawn candidate on a ballot. Or maybe the court enters an injunction requiring the party to withdraw him, but the party doesn't comply for whatever reason. Seems to me that the obvious defendant would be the state. That's how it works in most administrative contexts.

Now to the situation addressed here: an untimely withdrawal -- untimely, at least, with respect to ballot printing. Doesn't that magnify the problem? Earle would deny Kennedy standing. Fine, but at this late date, the procedure of suing the party is entirely hopeless. It wouldn't work at all. You could say that's Kennedy's problem, but it's not only a Kennedy problem. The single thing the majority gets right, which is a pretty basic point, is that all residents have an interest in sound elections, and ballot entries for withdrawn candidates does not further that interest. Again, the upside to the average NCian from Kennedy being on the ballot is nil, and it slightly increases their chance to unwittingly cast a meaningless vote.

To me, the only sensible disposition of the case is for the court to say that the "right to withdraw" is cabined by obvious practical considerations, and I would use something like the canon against absurdity to avoid interpreting a statute in a way that the legislature couldn't have intended because it makes no sense. I would then also order the state boards to put up flyers at polling places and place inserts in absentee ballot communications to inform them of the withdrawn candidate.
 


Clearly, DJT and RfK Jr have strong views on who benefits from this decision.
 
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