The North Carolina Court of Appeals has upended the state's absentee ballot process. On the same day elections officials were set to start mailing out requested absentee ballots as required by statute, the court ordered them to reprint the ballots and remove Robert F. Kennedy Jr.'s name.
The appeals court ruling reverses an earlier superior court decision that denied Kennedy's request for removal. The elections board issued a statement Friday evening saying it has filed an appeal with the North Carolina Supreme Court to keep the ballots as they are.
Pending its appeal to the Supreme Court, board staff are starting the process of coding new ballots without Kennedy's name — and sending proofs to the counties — should the heavily conservative high court uphold the decision to send out ballots without RFK Jr.'s name on them. The board has asked the Supreme Court for an expedited decision.
According to the board, there are 2,348 different ballot styles statewide for the 2024 general election. More than 2.9 million ballots had already been printed before the order by the Court of Appeals.
Absentee ballots must start getting mailed out no later than Sept. 21, which is the federal deadline to send absentee ballots in a presidential election to military and overseas voters. According to the elections board, voting system and ballot printing vendors have indicated that it could take up to 13 days to reprint ballots. The state could request a waiver to the Sept. 21 federal deadline if necessary.
Under state law, absentee ballots are supposed to go out even earlier—60 days prior to Election Day—which would have been this Friday, Sept. 6.
State code allows for changing ballots when 'practical'
RFK Jr. got on the North Carolina ballot by petition as the preferred presidential candidate of the We the People party. However, two weeks ago, Kennedy suspended his campaign and endorsed former President Donald Trump, the Republican nominee.
On Aug. 27, Kennedy formally submitted his ballot removal request by letter to the North Carolina State Board of Elections. We the People followed with 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 because, at the time, more than 1.7 million ballots had already been printed. A regulation under the North Carolina administrative code authorizes the state elections board to determine "whether it is practical to have the ballots reprinted."
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 immediately filed an appeal.
Case is about 'ballot integrity,' RFK's attorney says
At Thursday's hearing in state superior court, Kennedy's representative, attorney Phil Strach, of the law firm Nelson Mullins, argued that with Kennedy's Aug. 23 announcement that he was suspending his presidential bid, 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 statutory 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.
"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 Carla 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.
According to the state elections board, as of Friday afternoon, when the appeals court halted the ballot process, more than 136,300 voters had requested absentee ballots statewide, including about 12,700 military and overseas voters.
