Since the North Carolina State Board of Elections (NCSBOE) announced its settlement with Roy Cooper and the DNC's lawyer, Marc Elias, there has been a swift response. A federal legal action from the North Carolina Republicans and NCGA leadership on one front, and immediately followed by a legal challenge in Federal Court from the RNC, the Trump Campaign, several Members of Congress, and a few voters.
In both instances, the Parties are effectively making the same claim against the NCSBOE: 1) a violation of Article 1 of the US Constitution directing the States Legislatures to set the rules for elections and, 2) the NCSBOE and its settlement is a Gross Violation of the Equal Protection Clause of the US Constitution. I won't bore you with the legalese, but several things are happening. The NCSBOE removed witness signatures, approved ballot boxes, extended the period to receive ballots past election day, and effectively approved ballot harvesting. Ballot Harvesting is strictly banned by North Carolina General Statute (NCGS). The result creates an environment where legal voters are irreparably harmed. Illegal ballots dilute legal ballots. Both Cases request declaratory judgment with a preliminary and permanent injunction preventing the NCSBOE from allowing its recent settlement and rules to go into effect.
Over the last couple of days, I have watched my friends on the other side argue that this sham settlement should be allowed to go forward. Of course, they point to a section in the NCGS which states that the NCSBOE may make rules which will facilitate elections. What they fail to recognize is the Rules must be legal and in alignment with the NCGS. You can't make a rule that is in direct contradiction to the law. Therein lies the problem. The NCSBOE tried to use its rule-making authority to circumvent enacted bipartisan legislation. To my Democratic Party friends, lets put this another way. If there were a Democratic majority in the NCGA and a GOP Governor, would your reaction be the same? I don't think so. Regardless of your answer, it's off to court we go. Please note that there has been a recent decision on some of these issues by the Federal Courts. The Courts recently upheld the witness signature requirement in NC and SC. In a different case, the Federal Courts overturned the extension of the collection period.
I am still in a quandary. With all the legal maneuvering in the federal courts, no one seems to be concerned about the violation of the NC Bar Rules of Procedure and Rules of Ethics by the NC State Attorney General Josh Stein. The discussion of Collusive Settlements sent me looking. I am not a lawyer, so I am not going to pretend that I am. I will break down what I have learned in layman's terms. There are two points that you should consider 1) disclosure of conflicts of interest (both as a lawyer and as an elected official), 2) Collusive Settlements. Josh Stein had a personal interest in the outcome of the lawsuit and settlement which was not disclosed. Stein is a candidate on the statewide ballot. To suggest he is a disinterested third party is laughable. It's not just a State Bar Rule. On day one as an officeholder, you are schooled on open meetings laws and conflicts of interest. You discuss it throughout your entire service period. Stein is surely aware that his conflict of interest is not absolved through the use of other attorneys within the AG's office. State Bar rules require this interest to be disclosed to the NCSBOE and a waiver must be signed. Had this been done, the GOP members would have been immediately aware that there was something more going on behind the scenes. Make note, that the Board Chair and lawyers from the AG's office were very deliberate in intimidating the GOP NCSBOE members to keep them from seeking outside counsel. The GOP Council would have uncovered the scheme immediately. The AG's office's aggressive intimidation techniques over the Closed Session meeting rules failed to point out that the AG was the attorney for the Board majority with a conflict of interest in the outcome of the settlement and not representing the minority interest of the GOP or the voters of North Carolina.
So with all the legal maneuvering, will the North Carolina Bar step in? I doubt it. They are controlled by the partisan trial lawyers who are in Cooper's pocket. Maybe someone with legal standing can force the issue. The citizens of North Carolina deserve an Attorney General who abides by the spirit of the law and its governing body's ethics policy, not a partisan who plays games with Disclosure of Conflict of Interest, Collusive Settlements, and Rules of Procedure.
Dan Barry is a President of the Hornet’s Nest Republican Men’s Club, a member of the Union County GOP, 9th District GOP, and NCGOP Executive Committees. He publishes the Podcast and Blog – Right Course with Dan Barry
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