Federal judge warns about impact of ‘flood’ of NC election lawsuits

The end of voting on Nov. 5 marked the unofficial conclusion of the latest election cycle in North Carolina. The official end should arrive this week with the State Board of Elections certifying results.

Yet election certification marks just one milestone in a much longer season of election-related lawsuits.

A federal judge with four decades of service recently critiqued the near-constant court battles over North Carolina’s election rules.

As you read this paragraph, it’s a safe bet that at least one lawyer is drafting a new election complaint. It’s possible that we’ll see multiple lawsuits stemming from recent electoral battles.

Along with any new complaints, state and federal courts are still dealing with five lawsuits state and national Republican groups filed against the state elections board during the final months of the 2024 campaign. Federal courts still must resolve three federal suits challenging portions of the General Assembly’s 2023 election reform law. Plus four lawsuits continue to target current state congressional and legislative election maps.

As an observer who tries to keep track of these cases, I admit other outstanding complaints might have escaped my attention.

These suits mean good business for lawyers on the left and right who specialize in election law. Yet the flurry of court filings does little to inspire confidence among voters that North Carolina enjoys well-run, safe, secure elections.

That’s the concern Judge Harvie Wilkinson addressed in a recent court opinion. A member of the Richmond-based 4th US Circuit Court of Appeals since then-President Ronald Reagan appointed him in 1984, Wilkinson has witnessed decades of change within the legal landscape surrounding elections.

In Sharma v. Hirsch, decided Nov. 14, Wilkinson and two colleagues rejected a Republican congressional candidate’s lawsuit. It challenged North Carolina’s requirement that candidates for federal office declare whether they ever have been convicted of a felony.

The felony-disclosure requirement “falls within the Constitution’s broad grant of authority to the states to regulate elections,” Wilkinson wrote for the 4th Circuit.

“Disclosing past histories of lawbreaking in a prospective lawmaker falls within the ambit of permissible safeguards necessary to ‘ensur[e] that elections are “fair and honest,” and “that some sort of order, rather than chaos is to accompany the democratic process,”’” he added.

“The state is using the requirement to emphasize in a modest and restrained manner that lawmaking and lawbreaking are, to put it gently, in tension,” Wilkinson wrote.

In the final paragraphs of a 19-page decision, Wilkinson turned his focus beyond the Sharma dispute. 

“Over the past five years, North Carolina has been flooded with dozens of challenges to the State’s electoral regulations,” Wilkinson wrote. “We understand that many of these challenges are reasonably grounded in the law, and their gravity should not be understated.”

“At the same time, the constant pull to the courtroom leaves state election officials frequently operating in a provisional state, never knowing if and when their procedures will be overturned,” he added. “This state of affairs is not conducive to the most efficient administration of elections.”

Wilkinson cited US Supreme Court Justice Brett Kavanaugh’s observation that “running a statewide election is a complicated endeavor. Lawmakers must make a host of difficult decisions about how best to structure and conduct the election.”

“Often, a board of elections must either choose to forego policies that serve significant governmental interests in preserving electoral integrity, or risk enforcing potentially unconstitutional measures that could throw a shadow over an entire federal election,” Wilkinson noted. “Neither option is desirable.”

“When an election is close at hand, the rules of the road should be clear and settled,” the opinion continued. “And some modicum of stability assists candidates in knowing when and where they will run, and voters in knowing who would represent them.”

“These lines of communication are important to representative government, and their value is among those things that courts may keep in mind,” Wilkinson wrote. “Both the stability of state electoral procedures and the place of state governments in the Article I elections scheme are under challenge in these sorts of cases, but here again the courts may, under law, take account of both.”

Wilkinson did not need to write about the “flood” of election-related lawsuits to resolve the Sharma case. The decision required no commentary about the “constant pull to the courtroom.”

Yet his message is not superfluous. He raises valid concerns.

Voters expect clear and relatively consistent election rules. No one should reject legitimate complaints. But those who wage ongoing electoral battles through the courts must realize that their actions carry consequences.

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