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Free & Fair

NC Supreme Court Recount Could Be Legal Focal Point

From an election law perspective, the biggest potential development I've seen early Wednesday morning after Election Night is not in U.S. Senate races, or even gubernatorial ones, but rather the fight for a seat on North Carolina's Supreme Court.

The reason is that before Election Day North Carolinia already was the focus of intense federal court litigation concerning changes in that state's voting rules, particularly those concerning the elimination of same day registration during early voting and a new requirement to invalidate provisional ballots cast in the wrong precinct.  The U.S. Court of Appeals for the Fourth Circuit preliminarily indicated that those changes violated the federal Voting Rights Act.  Although the U.S. Supreme Court put that Fourth Circuit decision on hold for the purpose of administering ballot-casting procedures yesterday (Election Day), the Supreme Court did not decide the merits of the federal-law claims.  Consequently, the Supreme Court did not rule on the status of any provisional ballots cast in North Carolina as a consequence of the state's changes to its voting rules.  As Josh Douglas and I addressed in our op-ed yesterday, the supremacy of federal law means this: assuming the Fourth Circuit adheres to its position on the invalidity of the new North Carolina rules under the federal Voting Rights Act, then North Carolina may not reject a provsional ballot solely because of noncompliance with its new law.

Thus, the status of provisional ballots may become important in a recount over the state's supreme court seat.

Ten years ago, North Carolina had major litigation over provisional ballots in a statewide race for its chief education officer.  That led to a big decision in the North Carolina Supreme Court, James v. Bartlett, 607 S.E.2d 638 (2005), only for that decision to be subsequently reversed in the state's legislature, with additional state-court litigation thereafter.  

It is obvious that litigation over a state supreme court seat is a matter more difficult for the state supreme court itself to resolve that litigation over a separate statewide office, like superintendent for public instruction.  The apparent conflict of interest is obvious.  The last time an election for a state supreme court seat was seriously disputed was in 1994, over Alabama's Chief Justice election.  That dispute ultimately was resolved in federal court, in the important precedent-setting case of Roe v. Alabama, 68 F.3d 404 (11th Cir. 1995), which ruled that it violates Due Process to change the rules for counting ballots after they are cast.

Since there already is pending litigation over North Carolina's voting rules, it would not be at all surprising if the election for this state supreme court seat was resolved in federal rather than state court.  Indeed, it could become the crucible for litigating the merits of the pending federal claims.


Edward B. Foley is Director of the Election Law @ Moritz program. His primary area of current research concerns the resolution of disputed elections. Having published several law journal articles on this topic, he is currently writing a book on the history of disputed elections in the United States. He is also serving as Reporter for the American Law Institute's new Election Law project. Professor Foley's "Free & Fair" is a collection of his writings that he has penned for Election Law @ Moritz. View Complete Profile


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