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By Mitch Kokai

No one should expect a government agency to act in “bad faith.” That’s why it should concern us when a U.S. District Court judge uses those words in connection with the N.C. State Board of Elections.

The headline emerging from Judge James Dever’s courtroom Friday evening was his decision to guarantee Green Party candidates a spot on the N.C. election ballot.

But another piece of Dever’s order deserves attention.

The judge offered a harsh assessment of the state elections board. Specifically, Dever wrote that the board “completely changed course” in its stance about federal jurisdiction over the Green Party case. The board’s shifting position “is astonishing and reflects bad faith.”

The legal dispute between Greens and the elections board started after a 3-2 vote on June 30. The board’s Democrats voted to keep the Green Party off the state ballot. Republican board members supported the Greens. The dispute involved challenged petition signatures.

The party filed a federal lawsuit on July 14. It asked a federal judge to declare that the Greens had met legal requirements to become an officially recognized party. The suit also called for a waiver of a July 1 candidate filing deadline. That deadline would have blocked Green Party candidates from the ballot, even if the party had official state recognition.

“Before the Board certified the Green Party on August 1, 2022, defendants argued that the Board certifying the Green Party would moot ‘all of [the] claims, except for the relief related to the candidate filing deadline,’” Dever wrote in his court order.

In other words, elections board defendants recognized that Greens would continue to have a legal claim even if they gained official party recognition.

That recognition arrived on Aug. 1. With a 4-0 vote, the elections board certified Greens as a party.

As a legal matter, the Greens’ pursuit of party recognition became moot. But the fate of individual candidates remained a live legal dispute.

In a new twist, the elections board argued that a federal court did not have jurisdiction over that dispute. Dever disagreed.

“[T]he question of whether the court should enjoin the candidate-filing deadline in N.C. Gen. Stat. § 163-98 as to the Green Party is not a state-law issue,” the judge responded. “Instead, it is a federal constitutional issue concerning whether applying the July 1 candidate-filing deadline in light of the timing of the Board’s investigation and certification violates plaintiffs’ rights under the First and Fourteenth Amendments.”

The state elections board had appeared to accept Dever’s reasoning earlier in the case.

“Defendants implicitly recognized this reality … when they expressly told the court that they ‘do not dispute that if certification were to occur … relief from the Court allowing for the extension or temporarily enjoining of the candidate deadline would be appropriate to ensure access to the November general election ballot,’” he wrote.

The Green Party’s original suit sought two actions from the court. First, declare the Greens a recognized N.C. political party. Second, block the July 1 candidate filing deadline.

“Defendants … oppose plaintiffs’ first request for relief but have taken completely contradictory positions on plaintiffs’ second request for relief,” Dever wrote. “On July 29, 2022, before the Board convened on August 1, 2022, and certified the Green Party as a new political party, defendants told this court … that they ‘ha[d] no objection to the [plaintiffs’] second [request for relief] should the Green Party be certified when the State Board takes up that issue on August 1, 2022.’”

“They had no objection because they ‘d[id] not dispute that if certification were to occur on August 1, relief from the Court allowing for the extension or temporarily enjoining of the candidate deadline would be appropriate to ensure access to the November general election ballot,’” the judge added.

“Nevertheless, in its August 3, 2022, status report to the court, defendants completely reversed course and stated: ‘The State Board opposes any order that concludes that this federal court has jurisdiction over this purely state law claim.’”

Dever noted the 180-degree reversal in the span of five days.

“Following their representations to this court on July 29, 2022, and the Board’s unanimous decision to certify the Green Party as a political party on August 1, 2022, defendants’ position in their August 3, 2022, status report to the court concerning jurisdiction is astonishing and reflects bad faith.”

For the Green Party, the story ends well. Its candidates can appear on the November ballot.

The result is mixed for those of us interested in good government. We should be concerned about “astonishing” legal arguments from the N.C. State Board of Elections. None of us needs a board whose actions “reflect bad faith.”

Mitch Kokai is senior political analyst for the John Locke Foundation.

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