The third-party candidate who fought to get on the North Carolina ballots earlier this year is now taking the state board of elections to court for his name’s removal.
READ MORE: After battling for ballot access, RFK Jr. removal request is denied by NC board of elections
Robert F. Kennedy Jr. filed a lawsuit in Wake County Superior Court on Friday, stating the North Carolina State Board of Elections’ denial to remove him from the ballot infringes upon his free speech under the state constitution and violates election laws. He is asking the court to intervene immediately to remove his name as presidential candidate.
The Democratic-heavy state board voted 3-2, down party lines, last Thursday to deny the request to retract Kennedy’s name from the 2024 ballot. It claimed the move would not be practical, due to the costly reprinting of ballots already in production.
According to executive director Karen Brinson Bell, upward of 2 million ballots had already been printed and were en route to 67 of 100 county elections boards by Thursday. She said to redo them would run in the six-figure range and delay the process by which absentee ballots are supposed to be mailed Sept. 6.
Kennedy’s lawyers argued “impracticality” is not grounds for the board to deny the candidate’s request. They claim the board received “formal written requests” and did not follow North Carolina General Statute § 163-113:
“A person who has been declared the nominee of a political party for a specified
office under the provisions of G.S. 163-182.15 or G.S. 163-110, shall not be
permitted to resign as a candidate unless, prior to the first day on which military
and overseas absentee ballots are transmitted to voters under Article 21A of this
Chapter, that [the] person submits to the board of elections which certified the
nomination a written request that person be permitted to withdraw.”
While North Carolina law requires absentee ballots be mailed Friday, Sept. 6, the lawsuit adds federal law states ballots must be mailed by Sept. 21.
At the state board’s emergency meeting on Thursday, Republican board member Kevin Lewis said he thought the board had the statutory authority to remove the candidate, reprint the ballots and move the deadline for absentees to be mailed. NC General Statute 163-22(k) gives the state board the authority to decide when to mail absentee ballots “if they are not ready by” the statutory deadline, which is 60 days before the general election — Sept. 6.
The lawyers for Kennedy cited Lewis calling it “disingenuous” for the state board to argue it could not be flexible in reprinting the ballots, especially after General Counsel Adam Steele said General Statute 163-165.3C covers late edits made to ballots, and noted an administrative rule determining whether it’s practical to reprint ballots before the start of absentee voting.
Kennedy lawyers maintain the candidate followed requirements within state law.
“Instead, [the board] elected to insert their own indeterminate, subjective ‘practicality’ standard in denying his request. NCSBE cited no legal authority for its action, nor did it even feign an attempt to define what this test might entail,” the lawsuit indicates.
It further includes the board and Bell knew of Kennedy’s press conference hosted in Arizona on Friday, Aug. 23, where he announced he would no longer seek the presidential nomination. Thus, it claims the “impracticality” was the board’s own making, since the executive director decided to continue printing ballots anyway.
Kennedy’s lawyers sent a letter on Tuesday, Aug. 28, to the North Carolina State Board of Elections to remove Kennedy’s name. Republican elections board member Stacy “Four” Eggers IV questioned executive director Bell at last week’s emergency hearing rabout why the ballots weren’t stopped at press upon knowing about his press conference or upon receiving the lawyers’ letter.
“Kennedy did not file as an unaffiliated candidate and we had not heard of a decision from the We the People party based upon his press conference,” she said, adding she informed county boards to continue forth on the printing process. “I copied the Board on that.”
Because Kennedy sought ballot access in North Carolina by the creation of We the People, Bell told the board they needed to receive the official request from the party, which voted 4-1 on Wednesday for RFK to stop his candidacy.
Lewis made a motion to approve Kennedy’s name removal, but it failed down party lines.
Democratic board member Jeff Carmon made the successful motion for Kennedy’s name to stay on the ballot: “Given the fact that we have a short deadline to turn these around, the amount of ballots that’s been printed, the cost that local counties would incur to reprint the ballots — with all those things in mind, I move that he remain on the ballot.”
Yet, the lawsuit states the board didn’t even address the fact that Kennedy was in statutory compliance. Not only did it find the board’s “practicality standard” rather illusive, the lawsuit claims Carmon and the board were instead trying to send a message.
“Defendant Carmon’s parting comments illustrate that, for the majority of NCSBE members, this vote on Kennedy and We the People’s requests was never about statutory compliance,” the lawsuit states.
Carmon ended the meeting saying he believed the Democratic board members deserve an apology:
“The three members who have received such notoriety for allegedly taking steps to keep Mr. Kennedy off the ballot are now the three that are keeping him on the ballot. I hope those individuals that took the time and expense to put that out there will also take the time and expense to issue an apology.”
The battle with Kennedy and We the People began earlier in the spring when the state board of elections delayed the vote on certifying the party for Kennedy to gain ballot access. Kennedy ran as an independent in some states, but also was listed as endorse by various parties in other states.
The board wanted to investigate the veracity of petitioners’ signatures from We the People; North Carolina state law mandates unaffiliated candidates need more than 80,000 signatures, which were due by March 5, whereas parties only had to meet over 13,800 signatures by June 1 to gain ballot access.
The board eventually voted 4-1 on July 17 for We the People recognition and to allow Kennedy to become a presidential nominee in the Tar Heel State. However, Democratic board members were chided for playing politics and influencing the election by deterring a candidate that could take away votes from their party’s nominee.
The state’s Democratic Party tried to stop the move by suing the state board and claiming RFK Jr. skirted election laws by choosing to go the party route and by proxy needing fewer signatures. Lawyers for the state board of elections argued in court it followed the plain reading of the law to vote to allow Kennedy access.
A judge stood by the state board’s decision, saying Kennedy’s name could remain as a presidential nominee.
Lawyers on behalf of Kennedy wrote in its Friday lawsuit against the board that it was backtracking on its own argument in court from a few weeks ago:
“Not only is NCSBE’s refusal to recognize Kennedy’s statutory rights untethered from any legal justification or precedent, but it is a stark departure from NCSBE’s own position in defending its approval of a minor political party in North Carolina called We the People Party of North Carolina,” lawyers wrote. “Namely, that if one follows the plain language of the controlling statutes, then there is no further test or inquiry NCSBE or the court may impose. That principle is just as true today as it was when NCSBE made that argument to this court a mere two weeks ago.”
Since exiting the race on Aug. 23 and endorsing Donald Trump, Kennedy — nephew of former President John F. Kennedy and son of former attorney general Robert F. Kennedy — said he would keep his name on ballots in some states but would ask for its removal in battleground states where votes are tight.
Kennedy was holding 3.8% of the vote in North Carolina, with Trump and Harris roughly a percentage point apart, according to 270 to Win’s average of five recent polls.
Only Wisconsin and Michigan have denied Kennedy’s request to be removed as a candidate so far, as state law doesn’t allow as much unless the candidate has died.
Kennedy’s lawyers are asking the courts to mandate the state board stop printing all ballots and reissue them, sans Kennedy’s name, “prior to September 21, 2024 as per 52 U.S.C. §20302(a)(8)(A), and that all corrected absentee ballots must be sent out “as quickly as possible” under N.C. Gen. Stat. §163-227.10(a).”
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