Stinging from NC ballot fight, GOP leaders want power to block ‘collusive settlements’

The 2020 elections might be over, but some pre-election drama is still playing out in the state legislature as the fight heats up over who makes the rules for 2022 and beyond.

On Tuesday, Republican lawmakers passed a bill that would give their leaders the ability to block the Democrat-led North Carolina Board of Elections from settling lawsuits over election rules in the future. Senate Bill 360 passed the Senate along party lines Tuesday, 28-21. It next heads to the House of Representatives.

The bill is worded broadly and would apply to any state agency. But a dispute with the elections board is the reason they filed the bill, sponsors say.

Right now, state agencies have the power to settle lawsuits if they get sued. But in the future, this bill says that if a lawsuit challenges a state law or part of the state constitution, then no settlement could be approved without the approval of House Speaker Tim Moore and Senate President Pro Tem Phil Berger — or whoever holds those offices in the future.

Supports say the bill is needed to stop the elections board from entering into politically motivated legal settlements.

“A party beaten by the legislature should not use the courts system to rewrite the law by suing a friendly party and then collusively settling the lawsuit.” Republican Sen. Paul Newton of Cabarrus County said at a news conference.

Opponents say that’s a false premise, which never happened, and that the bill is actually an attempt by GOP lawmakers to unconstitutionally seize power for themselves, away from the executive branch.

“There was nothing secret nor unlawful nor uncooperative about the settlement that was agreed upon,” Democratic Sen. Jay Chaudhuri of Raleigh said during debate on the bill in the Senate, later adding: “This bill also runs afoul of a basic principle of democracy, which is the separation of powers.”

How did we get here?

The bill’s inspiration is a legal settlement that the Board of Elections approved unanimously in 2020. The board settled with groups that sued saying election rules needed to be loosened to keep voters safe and avoid disenfranchising them as the coronavirus pandemic complicated voting.

After meeting for several hours to discuss the settlement in private, the board’s Republican and Democratic members all signed off on the deal, in a 5-0 vote. It didn’t give the challengers everything they wanted but it did extend the normal period in which state officials could count mail-in ballots that were postmarked by Election Day but arrived late. And it loosened some of the requirements for witness signatures on mail-in ballots.

Leaders at the North Carolina Republican Party were so angry about the settlement that they asked the election board’s two GOP members to resign the next day, the wife of one of those members said on social media after the resignations.

The lawsuit had been filed by Marc Elias, a prominent Democratic lawyer. Republicans have called the ensuing settlement “collusive” since Karen Brinson Bell, the executive director of the elections board, was chosen to lead the elections board by Democratic Gov. Roy Cooper, and the elections board was represented in court by lawyers from Democratic Attorney General Josh Stein’s office.

Brinson Bell had also personally asked for some of the changes in the settlement, even prior to the lawsuit that demanded them, but the Republican-led legislature did not make those changes. Newton said it was unfair of the elections board to put them into place through the settlement.

But in a letter to Newton and other top Republican senators Tuesday, Brinson Bell told them they are wrong about numerous facts underpinning the bill.

“I did not participate in the settlement negotiations, nor have I ever met or spoken with Marc Elias,” she wrote.

Brinson Bell added that a judge had ruled that the state law in question was likely unconstitutional, and Election Day was fast approaching. She questioned why she should be required to enforce unconstitutional rules rather than work to fix them.

“Enforcing a statute that a court finds unconstitutional would be a violation of state law,” she wrote to the lawmakers.

But despite the highly political background to the bill, Newton said he thinks people on both sides should be able to see why the change is needed.

“Imagine the outcry if the (Donald) Trump campaign had come in here and raised an allegation or concern about our elections law, and the legislature had secretly settled with the Trump campaign to change something material about the law,” Newton said. “That type of behavior shatters trust in the electoral process.”

However, elections officials deny that they acted secretly.

In a written statement, elections board spokesman Pat Gannon said the settlement was signed off on by all of the board’s members, of both parties. And when lawmakers wanted to object, Gannon said, they were given their chance in court. They were unable to convince a judge.

“The proposed settlement was considered in open court, and attorneys for General Assembly leaders made oral and written arguments to the court,” Gannon said. “Ultimately, the courts approved the settlement.”

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