North Carolina’s absentee ballots have been prepared, printed and were set to be sent out Friday, 60 days before the election.
As of now, all of that is in limbo.
Ballot delivery has been paused while presidential candidate Robert F. Kennedy Jr. appeals the North Carolina Board of Elections’ decision to keep him on the ballot against his wishes.
Thursday morning, Kennedy asked a Wake County superior court to compel the North Carolina State Board of Elections to remove his name from the state’s ballot.
Last week, the board denied Kennedy’s request in an emergency meeting, citing “practicality” concerns days from the Sept. 6 deadline for sending out absentee ballots.
While the superior court denied Kennedy’s appeal to reprint all ballots, the judge granted his request for a 24-hour pause on absentee ballot delivery to give him time to file an appeal of the court’s decision.
Kennedy promptly did so, filing an appeal with the state Court of Appeals. Friday morning, the court granted Kennedy’s request to pause ballot delivery, and ordered Superior Court Judge Rebecca Holt to rewrite her order in Kennedy’s favor, which means Kennedy’s name would be removed from the ballot.
After the appellate court’s decision, State Board general counsel Paul Cox instructed county boards not to send out any ballots on Friday. However, also told them not to destroy outgoing absentee ballots.
The State Board may decide to appeal the Court of Appeals decision to the North Carolina Supreme Court, but has not announced any decision yet.
The complications in North Carolina’s balloting process come at a time when the national news media spotlight is on the potential battleground state. Polling shows a very close contest for president in a state that former President Donald Trump narrowly carried in 2020.
Some national reporting described the situation in potentially misleading language. Only by-mail absentee ballots are affected. But CNN’s website published a headline Thursday saying the state’s “early voting” could be delayed, which isn’t the case.
Early voting in North Carolina describes in-person voting ahead of Election Day, and won’t start for several weeks. Kennedy’s appeal is not expected to affect the start of early voting. CNN later updated its headline to remove the word “early.”
North Carolina Democratic Party Chair Anderson Clayton appeared on CNN Friday to discuss the court development.
“What we’re seeing right now is a great corruption in our Court of Appeals with the Republican takeover there,” she said.
“But we’re also seeing that this is going to cost folks in North Carolina, voters in North Carolina, potentially millions of dollars in having to reprint these ballots”
The arguments
In his appeal, Kennedy’s lawyers argued that he would face “irreparable harm” if ballots were sent out with his name, and without a longer pause, the result of his appeal would hold no weight. He added that including his name would potentially cause “widespread voter confusion.”
The defendants — the State Board of Elections — responded that the Board, county boards of elections and voters were the ones who would face irreparable harm if ballots are not sent out Friday.
Reprinting ballots isn’t as simple as deleting a few lines and pressing print, Board Executive Director Karen Brinson Bell said in an affidavit. It requires working with county boards of elections to write software code to be used in ballot tabulators for 2,348 different ballot styles, conducting quality control checks to ensure accuracy of all ballots and creating absentee ballot packets with various components for each eligible requester.
Brinson Bell said this process would take at least two weeks, shortening the voting window for some and likely violating the federal Sept. 21 deadline for sending absentee ballots to overseas and military voters.
She estimated that if the Court of Appeals ordered them to reprint Friday, boards of election would be able to begin mailing between Sept. 25 and Sept. 28. North Carolina would have to seek a waiver from the U.S. Department of Defense to break that deadline, which is not guaranteed.
The last time the department approved a waiver was for New York in 2016. It denied a waiver in 2022 for Ohio. North Carolina is a major military state, meaning the timely delivery of military ballots could affect a substantial number of votes.
It would also cost upwards of a million dollars, primarily divided among the State Board and county boards of elections, she said.
“I have little doubt that large, wealthy counties would have been able to allocate the additional funds required for the reprinted ballots,” she wrote. “In less-wealthy counties, it is far more difficult to locate the funds that would be required to reprint these ballots.”
How did we get here on absentee ballots?
Last week, the North Carolina State Board of Elections voted 3-2 to keep Kennedy on the ballot despite his request to be removed.
On Aug. 23, Kennedy conducted a press conference suspending his campaign in battleground states. He told the audience that his name would still be on the ballot in most states, where he wouldn’t have an impact on the outcome, but has argued he could still be chosen as president if no one wins the electoral college outright.
“But in about 10 battleground states where my presence would be a spoiler, I will remove my name and urge voters not to vote for me,” he said.
Brinson Bell directed county boards of election to “continue to proof ballots, place ballot print orders, and proceed with our ballot preparation processes” because the state board had not received a request from the We The People Party to remove Kennedy as its nominee.
“It is likely that even if we receive such a request, the State Board would need to consider the removal of a candidate once ballot printing has begun per our administrative code,” she wrote. “Therefore, we have no reason to change our course of action.”
On Aug. 26, Kennedy asked the North Carolina State Board of Elections to remove him from the ballot. The board received the request the following morning. On Aug. 28, the We The People party made its official request. On Aug. 29, the State Board held an emergency meeting to resolve the issue.
During that meeting, the board’s two Republicans argued that there was flexibility in North Carolina law that would allow them to begin sending out absentee ballots past the statutory deadline, 60 days before Election Day, an argument Kennedy has adopted.
However, the three Democrats on the five-member board cited North Carolina law that gives the board the ability to establish rules based on practicality in the case of late changes to ballots.
“The rules shall provide for the reprinting, where practical, of official ballots as a result of replacement candidates to fill vacancies … or other late changes,” G.S. 163-165.3 states.
A majority of the Board agreed that reprinting ballots without Kennedy’s name was not practical, considering the Sept. 6 deadline and the cost to county boards of elections.
Court filings state that by Aug. 28, the date the We The People Party made its formal request to remove Kennedy from the ballot, 98 of North Carolina’s 100 counties had finalized ballots and were approved to print. Additionally, 90 counties’ ballots were already printed or in the process of being printed.
The change would have caused a two-week delay in sending out absentee ballots. The deadline for turning in ballots would have remained the same.
In court filings, Kennedy argued that the practicality standard was subjective and any impracticality of removing him at this late stage is “an issue of NCSBE’s own making.”
He cited Brinson Bell’s continued correspondence to county boards directing them to continue working after his press conference, where he announced he was removing himself from the ballot in some states. Kennedy claimed that keeping him on the ballot constitutes “mandated speech,” in violation of the First Amendment.
The defendants — the members of the State Board of Elections — cited Michigan’s recent rejection of Kennedy’s ballot removal request in their response.
“ ‘Elections are not just a game’ and States are ‘not obligated to honor the whims of candidates for public office,’ ” they wrote.
In her affidavit, Brinson Bell said it was outside the state board’s authority to “unilaterally take action to remove (Kennedy) from the ballot based on the assumption that North Carolina might be one of the states where (Kennedy) sought to remove himself.”
“After all,” she said, “for weeks leading up to (his) Aug. 23 press conference (he) had been fighting to be included on the ballot in this state.”
Editor’s note: An earlier version of this article appeared on Sept. 5, but was substantially updated and republished on Sept. 6 to reflect significant developments in the situation.
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