After several weeks of uncertainty, presidential candidate Robert F. Kennedy Jr. will officially be removed from ballots in North Carolina.
Monday night, the North Carolina Supreme Court affirmed the Court of Appeals’ Friday ruling that the State Board of Elections and county boards of elections must reprint ballots without Kennedy’s name.
For absentee voters, the 4-3 high court ruling means a longer wait to receive absentee ballots, as well as a shorter window to fill them out and turn them in before the Election Day deadline.
For the State Board of Elections, it means the clock is ticking to comply with a federal Sept. 21 deadline to mail out ballots for military voters, or else seek a waiver.
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As of Sept. 9, county boards across the state had received more than 146,000 absentee ballot requests, including more than 12,900 from overseas and military voters, according to court filings.
More than 2.9 million already-printed ballots will be moved to storage to avoid the possibility of wrong ballots being sent to voters, according to the State Board.
Writing for the majority, Justice Trey Allen cited the Free Election Clause of North Carolina’s state Constitution, which says “all elections shall be free,” in the majority’s reasoning.
Historically, the court has interpreted this mandate to mean voters should be protected from interference and intimidation in the voting process, have their votes counted accurately and be able to vote according to their judgment, Allen wrote.
He said keeping Kennedy’s name on the ballot might “disenfranchise” voters who may not know that Kennedy resigned as a candidate and that votes for him would not count.
“The elections process should ensure that voters are presented with accurate information regarding the candidates running for an elected office,” Allen wrote. “… Where a ballot contains misleading information or inaccurately lists the candidates, it risks interfering with the right to vote according to one’s conscience.”
Republican Justice Richard Dietz joined the state Supreme Court’s two Democrats in dissent. He said North Carolina’s statute allowing candidates to resign does not require the ballot to be changed or reprinted.
“In my view, our election laws permitted the State Board of Elections to decline to reprint new ballots but also compelled the Board to take other steps … to inform voters that Kennedy resigned and that a vote for him would not count,” Dietz wrote in his dissent.
He mentioned that other states have posted notices at all polling places where a withdrawn candidate remained on the ballot, and that North Carolina elections officials could have done the same.
Democratic Justice Allison Riggs was harsher in her dissent, joined by fellow Democratic Justice Anita Earls.
“Elections — the cornerstone of our democracy — are not games or exercises in ego-stroking. With a disturbing disregard for the impact on millions of North Carolina voters, plaintiff Robert F. Kennedy, Jr., (Mr. Kennedy) seeks to have his cake and eat it, too,” Riggs wrote.
“… Here, the whims of one man have been elevated above the constitutional interests of tens of thousands of North Carolina voters who have requested an absentee ballot and seek to exercise their right, under North Carolina law, to cast their ballot as soon as possible after the statutory deadline required to distribute absentee ballots.”
When will ballots be ready?
State Board Executive Director Karen Brinson Bell said ballot reprinting would likely take at least 12 to 13 days, including the required re-coding and proofing for this election’s 2,348 different ballot styles.
In a Tuesday press release, the State Board said the exact date when all counties will have new ballots ready is uncertain, but expected in the next couple weeks.
If absentee ballots are not ready by the federal Sept. 21 deadline, the State Board will have to request an undue hardship waiver from the U.S. Department of Defense.
The Board said its staff has begun discussions with the Department of Defense seeking a potential waiver, if ballots aren’t ready.
An official waiver request would have to include a comprehensive plan providing overseas and military absentee voters enough time to receive and submit their ballots.
Waivers are not guaranteed. The last time one was accepted was 2016, upon New York’s request. A 2022 request from Ohio was denied. North Carolina has never sought a waiver, to the State Board’s knowledge, spokesperson Pat Gannon said.
Early voters and Election Day voters will not be directly impacted by the state Supreme Court’s decision. However, county boards of elections will incur much of the ballot reprinting costs and a heavier workload, which could bleed into other elections duties.
Gannon said costs and the schedule for reprinting ballots will vary by county.
He added that it is an “extremely busy time for anyone who works in elections,” with responsibilities like testing voting equipment, training and assigning poll workers, entering new voter registrants into the system, conducting voter roll list maintenance, preparing supplies for distribution to polling places and responding to public and media inquiries.
Hoke County Elections Director Chassidy Chavis said her office may have to hire some temporary workers to help get absentee ballots out once they are reprinted. The cost of the second printing is 25% higher than the first, she added.
“As you can imagine, it’s a big hit to our budget, but we’re gonna have to make it happen,” Chavis said. “We’ll do what we have to do to make it happen.”
Wayne County elections officials worked through the weekend, and have already reprinted absentee ballots, Elections Director Anne Risku said. However, they cannot issue them until the whole state is ready to ensure that voters across the state have equal time to cast their ballots.
Risku also said her printing costs went up by 25%. She doesn’t know the precise amount because she hasn’t gotten the first bill from her printing vendor yet, but anticipates a $8,000 to $10,000 reprinting cost for her county. Risku said the elections board would ask the county to cover the unbudgeted expense.
Wayne County is home to the Seymour Johnson Air Force base, but Risku doesn’t anticipate the decision having much of an impact on overseas and military voters in the county.
Most of these voters get their ballots distributed through email, and return it within a few days, she said. Those who currently are scheduled to get their ballot through the mail can update their preference to email right now.
“In elections, you just have to be adaptable, you have to be flexible,” she said. “This isn’t the first time that things (have changed) in the middle of a process.”
In Wake County, the reprinting started Tuesday and will cost at least $200,000, Election Director Olivia McCall said. During the week between the first and second reprinting, more than 10,000 new absentee ballot requests have come in, she added.
“So really, the push right now is to get our test ballots so we can start our logic and accuracy testing again on the new coding,” McCall said. “And then once we get those ballots, the vendor will work on getting us absentee ballots.”
Not every county has started the reprinting process. Richmond County Elections Director Shannon Hearne said her county is awaiting guidance from the State Board before proceeding.
The State Supreme court majority opinion acknowledged the “considerable time and effort” required of election officials and “significant expense” incurred as a result of its ruling.
“But that is a price the North Carolina Constitution expects us to incur to protect voters’ fundamental right to vote their conscience and have that vote count,” the opinion stated.
Reaction to decision
North Carolina Democrats, including North Carolina Democratic Party Chair Anderson Clayton, have alluded to political interests at play in the courts’ rulings in this case.
“The GOP-majority on the NC Supreme Court voted today — in another unprecedented decision — to cost the taxpayers of North Carolina millions by ordering the State Board of Elections to remove RFK Jr. from the ballot and reprint ballots without justification,” Clayton posted on X Monday night. “It is abuse of power.”
North Carolina Republicans were happier.
Republican U.S. Rep. Dan Bishop, who represents North Carolina’s 8th congressional district and is running for attorney general, also took to social media after the court’s ruling.
“Common sense in judicial decision making,” Bishop posted on X. “Breath of fresh air.”
North Carolina Republican Party spokesperson Matt Mercer shared the same sentiment Friday after the Court of Appeals decision, which the state supreme court affirmed.
“We are pleased to see the decision to honor the wishes of the candidate and remain prepared for any eventual outcome,” he told Carolina Public Press.
Republicans took control of the State Supreme Court in 2022 and now hold a 5-2 majority. The Court of Appeals, whose decision the State Supreme Court upheld, also contains a 11-4 Republican majority.
The nonpartisan democracy advocacy group Common Cause North Carolina, however, was highly critical of the state Supreme Court, according to a statement from Executive Director Bob Phillips, describing the court’s action as “overtly partisan” and doing “a disservice to the voters of North Carolina.”
“Kennedy’s bizarre behavior of demanding to get on and off the ballot has been well documented,” Phillips said.
“The state’s highest court is simply bowing to what one political party believes will be advantageous to them, rather than making a decision that is best for all voters. This ruling hurts voters. And it unduly burdens county election budgets, which are already struggling with limited resources because the state legislature refuses to provide sufficient funding for our elections.”
How we got here
While Kennedy has recently been fighting to be removed from the ballot, just over a month ago he struggled to get onto North Carolina’s ballot.
In mid-July, the state board voted to authorize the We The People Party of North Carolina, which nominated Kennedy as its presidential nominee, as an official political party.
In North Carolina, unaffiliated candidates who are not part of a recognized political party face a higher barrier to get on the ballot. However, candidates nominated by authorized political parties have to get much fewer petition signatures to be included.
The board’s Democratic members were reluctant to certify the We The People Party because they saw it as an illegitimate political party used solely as a shortcut to get Kennedy, who is running as an independent candidate in some states, on the ballot.
On Monday, Aug. 26, Kennedy requested removal from North Carolina’s ballot, after announcing the suspension of his campaign the previous Friday. At his press conference, Kennedy said he would remove his name from the ballot in states where he could potentially be a “spoiler,” taking votes from former president Donald Trump or Vice President Kamala Harris in battleground states.
However, the State Board did not act until the We The People Party, which nominated Kennedy, made an official removal request on Aug. 28. Brinson Bell said North Carolina statute only allows the Board to accept official candidate submission changes from political parties, not individuals.
In the meantime, Brinson Bell directed county boards of election to continue working to print the ballots with Kennedy’s name. She later said that was necessary to meet the state’s original Sept. 6 deadline, and that nothing changed until the State Board’s official decision.
In an Aug. 29 emergency meeting, the Board voted along party lines to keep Kennedy’s name on the ballot due to “practicality” concerns over the cost and timeline of reprinting ballots so close to the Sept. 6 state deadline for sending out the first absentee ballots.
The board cited a North Carolina statute 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.
Kennedy sued on the grounds that keeping him on the ballot was compelled speech in violation of the First Amendment, and that North Carolina law did not preclude the State Board from accepting his removal request.
In a response to the State Board’s appeal to the state supreme court, Kennedy’s attorneys wrote that the board was asking the court to “rescue them from the very problem they created.”
“By barreling ahead and ignoring (Kennedy’s) requests, (the State Board) hoped to run out the clock on any possibility of (Kennedy) obtaining meaningful judicial relief,” they wrote.
“But (the State Board’s) regrets do not form a basis for the relief they seek. Nor do they justify ignoring (Kennedy’s) clearly established right to not appear on North Carolina’s upcoming general election ballot.”
After Wake County superior court judge Rebecca Holt agreed with the State Board’s decision, Kennedy appealed her ruling to the North Carolina Court of Appeals.
Friday, the appellate court reversed the superior court’s decision, and told Holt to order the State Board to reprint ballots without Kennedy’s name.
Later that day, the State Board appealed the decision to the North Carolina Supreme Court.
Monday night, the state supreme court upheld the appellate court’s decision, ordering the reprinting of ballots without Kennedy’s name.
The majority opinion stated that the court was “unpersuaded by the practical objections” raised by the State Board.
“To a large extent, any harm suffered by (the State Board) in light of the Court of Appeals’ order is of their own making,” it stated.
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