Collusive settlements by the attorney general prohibited in budget

By Jeff Moore
Carolina Journal News Service

RALEIGH — Ushered in, not by law, but by lawsuit settlement, North Carolina’s COVID-related changes to voting rules in 2020 are viewed as either a fix or a failure. Republican state senators are of the latter opinion, as evidenced by their inclusion of language prohibiting such “collusive settlements” by the attorney general in Senate Bill 105, slated for a final vote on the Senate floor Friday morning.

“Where a dispute, claim, or controversy is challenging a North Carolina statute or provision of the North Carolina Constitution, and the Speaker of the House of Representatives and the President Pro Tempore of the Senate (i) have intervened on behalf of the General Assembly in accordance with G.S. 1-72.2 or (ii) are otherwise jointly named in their official capacities as parties to the dispute, claim, or controversy, a proposed settlement agreement or other agreement that would dispose of the dispute, claim, or controversy shall be jointly approved by the Speaker of the House of Representatives and the President Pro Tempore of the Senate, or by and through counsel of their choice, before the agreement may be entered.”

Beyond North Carolina, similar lawsuits and subsequent settlements around the country resulted in late-inning 2020 voting rule changes that extended mail-in ballot acceptance deadlines by unprecedented lengths and weakened integrity measures such as witness requirements.

Arguing on behalf of leading state lawmakers, who sued over the extralegal rule changes, attorneys said in court last year that a legal settlement agreement entered into by Democrat N.C. Attorney General Josh Stein and the majority-Democrat State Board of Elections with plaintiffs represented by well-known Democrat lawyer Marc Elias amounted to a “one-party deal” that circumvented the legislature to advance rule changes under the guise of the COVID emergency.

The federal judge adjudicating the original lawsuit brought by Elias did rule that specific changes to witness signature requirements, contained within the settlement agreement between Stein, the State Board of Elections, and plaintiffs violated clear prohibitions in his prior court order. The signature requirement was restored, but changes to acceptance dates remained and, significantly, the lawmakers lost their appeal as state courts tentatively sanctioned the legality of the settlement itself, citing extraordinary circumstances warranting emergency measures.

The 2020 elections went forward in North Carolina under the new extended deadlines, and then some. Several close elections, including the race for chief justice of the N.C. Supreme Court, faced protracted uncertainty as the nine-day absentee ballot acceptance window elapsed.

In spring 2021 state lawmakers revisited the core issue, conducting committee hearings to grill State Board of Elections Director Karen Brinson Bell about the events leading to the settlement, motivations behind excluding the legislature in the agreement, and whether she thought the rule changes constituted a change to state election law.

“When you change a rule that changes a law, the law has been changed,” said Sen. Joyce Krawiec, R-Forsyth, to Bell during the March hearing. “I just find it amazing that you still believe that you didn’t change a law.”

Those changes, among other things, have likely contributed to North Carolinians’ subsequent rise in concern over election integrity. A Civitas Poll conducted earlier this year found distrust of elections building in an alarming portion of voters, raising election integrity as a top issue for voters, second only to the economy.

The angst over relative security vulnerabilities in the absentee ballot method has been bipartisan in recent years, too. The saga of the illegal absentee ballot harvesting in the notorious 2018 race for North Carolina’s 9th Congressional District drew attention to such vulnerabilities from both Republicans and Democrats.

Notably, in the lead-up to that 2018 election, it was Stein warning that the greatest risk of fraud was to be found within the absentee ballot method – the same method extended and weakened by the 2020 “collusive settlement.”

As attorney general, Stein was a member of the three-person committee — along with Secretary of State Elaine Marshall and Chief Legislative Officer Paul Coble — in charge of approving ballot language for multiple constitutional amendments to be presented to voters that fall. In discussing the voter ID amendment during public meetings, Stein argued that it wasn’t in-person voting one had to worry about in terms of fraud risk, but absentee ballots.

“Hardly any in-person voter fraud occurs, but the bulk of voter fraud occurs absentee, and there’s nothing to do with ensuring the person who is voting absentee is who they say they are,” warned Stein in 2018.

The attorney general had a markedly different take after absentee voting rules further loosened in 2020. As a result of the lawsuit settlement entered into by Stein himself, absentee voting rules were further relaxed, and the attorney general released multiple videos preceding 2020 elections encouraging absentee voting as the method of choice.

“If you don’t want to vote in-person, in fact, you can vote by mail, and you don’t even have to have a reason. There’s no requirement that there be a special circumstance to vote by mail. Anyone who wants to can do it. To request your absentee ballot, you can do it in a few different ways,” Stein said in a 2020 video posted to his Facebook page.

The vote-by-mail portion of 2020 elections in North Carolina ended as the highest on record.

This contextual backdrop is not lost on lawmakers like Sen. Ralph Hise, R-Mitchell, a sponsor of the original Senate bill prohibiting such collusive settlements. The day after the 2020 settlement was announced, Hise told reporters, “We’re witnessing a slow-motion mugging of North Carolina’s election integrity.”

Senate inclusion of the election law changes in the pivotal budget bill shows the importance they are placing on eliminating chances for a repeat offense.