‘They Are Changing The Rules in The Middle of An Election’: Read Appeals Court Judges’ Fiery Dissent in NC Elections Changes Case Going to Supreme Court

RALEIGH – N.C. Senate Leader Phil Berger is promising to appeal the recent 4th Circuit Court of Appeals decision to the Supreme Court. The ruling gave the stamp of approval to some (but not all) elections rules changes made by a partisan State Elections Board that run counter to state law, and they did it right in the middle of an election under the guise of a lawsuit settlement.

Two judges dissented in the case, and their written dissent blasts the court for allowing ‘unaccountable entities’ to strip legislatures of their power and authority over election law even as votes were already being cast.

From the dissent (emphasis added):

“WILKINSON and AGEE, Circuit Judges, with whom NIEMEYER, Circuit Judge, joins, dissenting:

We dissent from the court’s grant of a hearing en banc in this case and the failure of the court to grant appellants’ motions for injunctions against the North Carolina State Board of Elections pending appeal. Because of this case’s importance, we judge it is necessary to lay out our reasoning with clarity. This course is necessary in order to draw attention to the accelerating pace of pre-election litigation in this country and all the damaging consequences ensuing therefrom.

Here, as in Andino v. Middleton, No. 20A55, 2020 WL 5887393 (U.S. Oct. 5, 2020), we are faced with nonrepresentative entities changing election law immediately preceding or during a federal election. In making those changes, they have undone the work of the elected state legislatures, to which the Constitution clearly and explicitly delegates the power to “prescribe[]” “[t]he Times, Places and Manner of holding Elections.” U.S. Const. art. I, § 4, cl. 1. The Constitution does not assign these powers holistically to the state governments but rather pinpoints a particular branch of state government—“the Legislatures thereof.” Id. Whether it is a federal court—as it was in Andino—or a state election board—as it is here—does not matter; both are unaccountable entities stripping power from the legislatures.

They are changing the rules of the game in the middle of an election—exactly what Purcell v. Gonzalez, 549 U.S. 1 (2006), counsels against. By the time the Board changed the rules, voters had cast over 150,000 ballots in North Carolina.

Let’s understand the strategy that is being deployed here. The status quo is the election law enacted by the North Carolina General Assembly. The Constitution grants state legislatures that power. Principles of democratic accountability reinforce it. The fair notice to all voters of election ground rules well in advance of Election Day commend it.

Then along come the disruptive efforts of federal courts or, in this case, a state election board to upend the set rules right in the middle of an election. The disruptors then hail their action as the new status quo, which is (the irony of this is rich) claimed to be beyond any power of disturbance.

It takes no special genius to know what this insidious formula is producing. Our country is now plagued by a proliferation of pre-election litigation that creates confusion and turmoil and that threatens to undermine public confidence in the federal courts, state agencies, and the elections themselves.

Only by repairing to state legislative intent can we extricate ourselves from this debilitating condition. The statutes of state legislatures are our sole North Star. When, as here, the plain wording of those enactments is transgressed, the entire body politic pays a grievous price. In the service of policy objectives, the majority is stripping state legislatures of the responsibility our founding charter has assigned them. And in so doing, it has encouraged others to regard state statutes as little more than advisory and for pre-election litigants fair game.

Sometimes the state legislature will be in the hands of one party. Sometimes it will be in the hands of the other. Sometimes control may be divided. It matters not. These laws are what we as a nation have to live by, and to witness our democratic dissolution in this manner is heart-rending for the many good Americans of all persuasions who still view partisan advantage as subordinate to their country’s lasting welfare. […]”

That is as plain as it gets. The actions of the Cooper-appointed Democrats on the State Board of Elections, together with the Democrat attorney general, and Democrat super-lawyers, have violated core constitutional principles, and specific delegations of authority, in stripping the legislative branch of its power and effectively enact new election laws in the middle of an election.

It’s egregious, but the majority of the judicial panel actually signed off on it. The dissenting judges don’t let them off the hook either, accusing them of favoring personal policy preferences over the actual statues and governing documents that should reign supreme in the courts.

Read the rest of the fiery dissent here.