Wake County Superior Court Judge Rebecca Holt denied Robert F. Kennedy, Jr.'s, request for a temporary restraining order to halt North Carolina's ballot process at a hearing on Thursday. But Kennedy's attorneys are filing an emergency appeal with a higher court, which still could result in a delay.
By statute, elections officials are required to start sending out requested absentee ballots 60 days prior to Election Day, which, this year, is tomorrow, Friday, Sept. 6.
But Kennedy sued the North Carolina State Board of Elections after it ruled last week that doing so would be impractical since more than 1.7 million ballots had already been printed.
Kennedy got on the North Carolina ballot as the preferred presidential candidate of the We the People party, which gained recognition in the state by petition.
However, just weeks after the successful petition drive, Kennedy suspended his presidential campaign in a speech delivered on Aug. 23.
Kennedy also endorsed former President Donald Trump, the Republican nominee. The endorsement came amid speculation Kennedy could be lining himself up for a role in a future Trump administration.
Case is about 'ballot integrity,' RFK's attorney says
But Kennedy's representative, attorney Phil Strach, of the law firm Nelson Mullins, argued in court Thursday that with Kennedy's Aug. 23 announcement, North Carolina elections officials had all the information they needed to at least pause the ballot process in time to remove Kennedy's name from ballots before the Sept. 6 start of sending them out.
Strach, who has often defended top Republican lawmakers in the North Carolina General Assembly in redistricting lawsuits and other cases challenging GOP legislation, argued that under state law, Kennedy should have been allowed to withdraw his name from North Carolina ballots as long as the request was made prior to Sept. 6.
Kennedy formally submitted that request to the state elections board in a letter on Aug. 27. We the People made the same request in a letter sent to the elections board on Aug. 28.
The board met on Aug. 29 to consider RFK Jr.'s request for removal and decided in a 3-2 vote — the five-member board's three Democrats outvoting its two Republicans — to deny it. A regulation under the North Carolina administrative code authorizes the state elections board to determine "whether it is practical to have the ballots reprinted."
"This is a straightforward case about ballot integrity and following the law," Strach told the trial judge.
Strach claimed the elections board's refusal to remove Kennedy's name would "sow confusion" among voters who, otherwise, believed Kennedy had ceased running. And that "ensuing confusion" outweighs any inconvenience a delay in the ballot process would cause for state and local elections officials, Strach argued.
Moreover, Kennedy's lawsuit said the elections board is violating his constitutional rights by forcing him to remain on the ballot, a form of compelled speech.
RFK wants off ballot in some states, on in others
But Special Deputy Attorney General Mary Babb, arguing for the state elections board, said the board was "not obligated to honor the whims of the candidate," referring to Kennedy.
"The plaintiff's own actions have undercut his arguments," Babb said to the judge.
Babb noted that in his Aug. 23 speech, Kennedy said he was suspending — not ending — his campaign and that he has since fought to remain on the ballot in some states, while suing for removal in others.
For example, in New York, Kennedy has turned to an appellate court to reverse a decision that would keep him off that state's ballot over questions of residency.
But Kennedy has sought removal from ballots in battleground states, where the presence of his name could get in Trump's way. Kennedy's efforts have succeeded in some, including Arizona, Nevada, and Pennsylvania; and failed in others, such as Wisconsin and Michigan.
Babb argued it was state and local elections officials and, especially, North Carolina voters who would suffer harm from delaying the absentee ballot process to change the ballots by removing Kennedy's name.
Babb informed the judge that, per elections board staff, around 125,000 absentee ballots have already been requested, and that changing the ballots now would mean a two-week delay to the process.
In her ruling, delivered from the bench, Judge Holt said Kennedy had failed to meet the burden of showing he would suffer irreparable harm by having his name remain on the ballot, whereas state elections officials faced a statutory deadline for starting to send out absentee ballots.
