- The North Carolina State Board of Elections (SBE) ordered Robert F. Kennedy Jr. to remain on the ballot in a 3–2 party-line vote
- The North Carolina Supreme Court ruled that the SBE must remove Kennedy to protect voters’ “fundamental right to vote their conscience”
- The problems with Kennedy’s withdrawal exposed the need for election law reform
The North Carolina State Board of Elections voted 3–2 along party lines to keep Robert F. Kennedy Jr. on the ballot on August 29. That divided vote led to a lawsuit and a North Carolina Supreme Court order to remove his name.
It also underscored the need to reform the candidate withdrawal process in North Carolina.
A Party-Line Vote on Removing Kennedy from the November 5 Ballot
After struggling to get on the presidential ballot (including a Democratic Party lawsuit to remove him), Kennedy suspended his campaign and endorsed Donald Trump. He then moved to get off the ballot in several states, including North Carolina.
The Kennedy campaign informed the SBE of its intent to withdraw Kennedy on August 23, and the We the People Party of North Carolina sent the SBE a formal notice of withdrawal on August 28. During the August 29 SBE meeting to consider Kennedy’s withdrawal notice, Associate General Counsel Adam Steele noted that the rules for presidential candidates are different from those for other candidates (starting at 2:00):
Normally, a candidate can withdraw from the election up until the date the UOCAVA [military and overseas mail] ballots go out. In our state, that’s September 6, next Friday. But here we are talking about the presidential and vice-presidential candidates, for electors, and so that’s governed by a different statute, North Carolina General Statute § 163-209 …. The real decision for the board today is to just determine whether it’s practical to reprint the ballots at this point.
Left with that discretion, the Republicans predictably voted that it was practical, while the Democratic majority voted that it was not, leading to a 3–2 vote to keep Kennedy on the ballot. The predictability of the vote was based on the common assumption that having Kennedy on the ballot would hurt Donald Trump in November.
Court Ruling Delays Ballots Longer than Board Order Would Have
Just as predictably, the We the People Party sued to require the SBE to remove their former presidential candidate from the ballot.
The lawsuit quickly worked its way through the court system, with the SBE winning in a lower court decision and We the People winning on appeal. That set up a date with the North Carolina Supreme Court.
The state’s high court also decided quickly, declaring in a 4–3 decision on September 9 that the SBE had to remove Kennedy from the ballot. Writing for the majority, Justice Trey Allen noted that SBE Executive Director Karen Brinson Bell failed to follow up with the Kennedy campaign after their August 23 notice and instead told county boards to “continue the ballot preparation process.” The court noted several other points in the process where Bell could have paused ballot printing yet failed to do so.
Thus, as Allen noted in the court’s order, “To a large extent, any harm suffered by defendants in light of the Court of Appeals’ order is of their own making.”
The court then got to the heart of the matter, declaring that the time, effort, and expense of printing new ballots “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.”
In short, the SBE should not use its mismanagement of Kennedy’s withdrawal as an excuse to become a source of election misinformation by keeping him on the ballot.
SBE Mismanagement Exposed a Need for Reforms
The missteps surrounding Kennedy’s withdrawal demonstrate a need for several interrelated reforms.
All candidates should have the same withdrawal deadline by law
As Steele noted (see above), under North Carolina law, all candidates can withdraw from the election up until the date the first mail ballots go out. Only for presidential candidates is it left to the SBE to decide if it is “practical” to reprint ballots before that date (163‑165.3. (c)). The General Assembly should impose a standard withdrawal deadline for all candidates so they are treated equally.
The withdrawal deadline should be one week before the first mail ballots are sent to voters
Current law allows every candidate except those running for president to withdraw well after the first batch of mail ballots are printed. The General Assembly should impose a withdrawal deadline of one week before the first mail ballots are sent to mitigate the costs to county boards of elections in the time, effort, and expense involved in reprinting ballots.
The deadline to send the first mail ballots should be 46 days before election day
North Carolina has the longest official mail voting period in the United States, with the first ballots usually going out 60 days before election day. That is well before the 45 days required by the Uniformed and Overseas Citizens Absentee Voting Act and the date most states send out their first regular mail ballots. The General Assembly should adjust the date for sending the first mail ballots to 46 days before election day (allowing county boards to continue sending the first ballots on a Friday). That would make the deadline for any candidate to withdraw from the ballot 53 days before election day.
Those reforms would collectively treat all candidates equally, protect voters from misinformation, and allow for timely ballot changes without imposing undue burdens on election officials or voters. The SBE’s candidate withdrawal fiasco uncovered problems in election law that the General Assembly can and should fix.
