To no one’s surprise, in mid-September the Republican North Carolina Supreme Court intervened to help Donald Trump in the 2024 election by making sure, despite the ruling of the State Board of Elections, that Robert Kennedy Jr. must be removed from the already-printed ballot. The justices had to violate North Carolina law to do it. But they’re used to that.
The cost of re-printing “more than 2,910,000 general election ballots” must now be shouldered by our 100 county election boards, not the state. As the dissenting justices noted, the ruling also places “the whims of one man … above the constitutional interests of tens of thousands of voters” facing an “effectively truncated absentee period”.
The court order offered little in the way of explanation or justification. It principally made clear it would “prevent the dissemination” of ballots listing Kennedy’s candidacy. Justice Allison Riggs objected in dissent that the “egregious” interference with the electoral process represented “a dark day in the history of the state’s judiciary.” She added that “public aspersions cast on the impartiality, independence, and dignity of our state courts are well-earned.” I’m guessing Republicans won’t like that much. I hope Riggs has a good lawyer.
RFK v. Board of Elections raised two interesting points for me.
First, in short order, the N.C. Supreme Court has demonstrated itself to be the most politically partisan tribunal in our history. We now expect it, like a bad storm. Litigants don’t anticipate independence. The new majority has barely hidden its embrace of the Republican cause. Our high court has become the black-robed Republican caucus of the Tar Heel State.
The Kennedy case made me wonder, though, how the process works. How do the five Republicans know precisely what their partisan benefactors prefer?
Often it’s easy, of course. In lots of our cases, one set of the parties is listed as Sen. Phillip Berger and House Speaker Tim Moore. Clear enough, we know who wins.
But what about in Robert Kennedy’s case. It’s not necessarily obvious – or at least it wasn’t months ago – who Kennedy’s presence might hurt, or by how much. And, more relevant, how do the justices know what North Carolina Republican leaders think about the question. How do they find out?
Do the Republican justices expect Chief Justice Newby to pass down the mandated line? Does it come by rank – chief judge to associates? Or is it, perhaps, by blood. Maybe Justice Berger (the Senate Leader’s son) communicates for his dad, as the most powerful figure in the party? So young Berger delivers the final message?
I’m being at least partly fanciful here, I suppose. But I have wondered, more seriously, if Republicanism rather than law prevails, whose Republicanism is it? Who is the oracle?
Second, and in a completely different direction, one aspect of the Kennedy case was shocking. It was a 4-3 ruling, not 5-2 as presumed. For the first time, Justice Richard Dietz departed from his Republican colleagues. He concluded in dissent, simply:
“I believe this Court’s role is to follow the law as it is written. The State Board of Elections properly determined that it would not be practical to reprint the ballots … before the deadline set by law.” Really.
The Dietz opinion was odd, structurally, because he felt compelled to repeatedly announce that the Republican majority opinion was “well-reasoned,” “thoughtful” and “entirely reasonable.” Illegitimate, I guess, but really, really, thoughtful.
Lots of lawyers I know expected Dietz to be an actual judge, unlike his four Republican compatriots. It looks like his muscle memory slipped in for a moment. Good news. But I wouldn’t expect to see it when the Republicans actually need his vote.
Gene Nichol is Boyd Tinsley Distinguished Professor of Law at the University of North Carolina School of Law.
From The Progressive Populist, October 15, 2024
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