Navigating Candidate Withdrawals: The Legal Implications of Late-Stage Ballot Changes in North Carolina
November 1, 2024
By: Sarah Catherine Woodruff
In this election cycle, discussion of candidates’ names being added and removed from the ballot has been particularly salient, beginning with claims that it would be “unlawful” to remove Biden as the Democratic Presidential nominee and replace his name with Harris after Biden won the Democratic primary. This concern was addressed relatively quickly, as the events occurred in July, creating no legal or constitutional problem with changing the ballots as the Democratic candidate had not been officially nominated yet, and state ballot deadlines would not be violated. However, removing Robert F. Kennedy Jr. (RFK) as a presidential candidate from the North Carolina ballot has proved to be a much greater challenge with legitimate legal concerns due to RFK’s late withdrawal from the race. On August 29th, the NC State Board of Elections rejected a request to remove the We The People Party nominee RFK from the general election ballot.
There is no deadline in the state for a nominee to withdraw and have their name removed or replaced; however, state law does require absentee ballots to go out by Sept. 6 to voters who have already requested them. Thus, the election board initially denied the request, citing that the state was only eight days from when the first ballots would be sent to absentee voters, and to reprint the ballots would prevent most counties from having ballots ready until mid-September. Further, approximately two million statewide ballots had already been printed with Kennedy’s name, so to replace them would create a substantial cost. These factors are considered under North Carolina Administrative Code §163-165.3(c), which finds that when a party wishes to change its presidential nominee close to an election but before ballots go out, the State Board must determine whether it is practical to reprint them at that point.
Additionally, per §163-165.3(c), if Kennedy’s name is not removed from the ballot, voters can select him as a candidate and even have their vote counted. Still, in effect, they will have wasted their vote choosing a candidate no longer in the race. Removing a candidate’s name from a ballot does not invoke the Purcell Principle as it does not involve changing election rules, and the principle exclusively binds federal courts. However, leaving a candidate no longer in the race on the ballot will undoubtedly confuse voters and lead to some wasted votes, creating the problem that Purcell seeks to address in preventing election law changes too close to when ballots are cast. Thus, considering if a candidate will be removed from a ballot after ballots have been printed requires the Court to weigh the cost of curing potential confusion to voters and subsequent lost votes through reprinting the inaccurate ballots against the monetary cost of the reprinting and the impact to the deadlines for having ballots mailed out.
On Thursday, September 5th, bringing the matter to the judiciary, a Wake County Superior Court also denied a request from RFK to remove his name and reprint the ballots that already listed him as a candidate. However, despite this denial, the court issued a pause on sending out absentee ballots until Friday at noon, offering a minimal timeframe to do so but nevertheless allowing the opportunity to appeal the decision. Subsequently, an appeal did occur, with the Court of Appeals issuing an order requiring election officials to reprint ballots and remove Kennedy as a candidate. The State Board of Elections consequently appealed this order to the N.C. Supreme Court on Friday, September 6th, the original date by which requested absentee ballots were meant to be mailed. The Board had asked the Supreme Court for an expedited decision on the appeal, as it was left scrambling to prepare new ballots and holding almost 3 million ballots printed with Kennedy’s name before the Court of Appeals order. Voting system vendors indicated that it could take 12-13 extra days to reprint the ballots, pushing the state well past its original September 6th deadline for mailing out the requested ballots and potentially needing to ask to waive the federal deadline of September 21st.
In a 4-3 ruling on September 9th, the N.C. Supreme Court upheld the order of the Court of Appeals requiring election officials to remove RFK as a candidate on the ballot under the We The People party line. With this decision, the Board was unsure when absentee ballots would get out, but after all of the back and forth, by September 13th, the state was working on an adjusted timeline, prioritizing getting out the ballots for military and overseas citizens by Friday, September 20th, to comply with the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA), the federal law requiring ballot distribution by the 45th day before the election. Having ensured the state has adhered to the UOCAVA, the Board designated September 24th as the date to send absentee ballots to other voters who requested to vote by mail.
North Carolina should be on track, at this point, when it comes to an accurate reflection of the candidate running listed on the ballot and mailing out absentee ballots. However, this situation demonstrates how a state ballot system can be thrown into chaos with a last-minute candidate withdrawal and how courts weigh various features in this scenario to balance the literal and figurative cost of having accurate ballots.