A conflict of visions on lawsuits

A veteran N.C. political watcher takes me to task on election fraud

Jeremy Borden, a former Washington Post/INDY Week writer who’s joined the Wild World of Substack (hi!), published his most recent newsletter entry on voter fraud, an issue faithful readers know I’ve grappled with a good deal. (He gave me a heads-up, which I appreciate.)

Jeremy’s take shows how differing worldviews can lead to conclusions that don’t jibe … but probably should.

He first reviews the 2018 voting-fraud lawsuit former Kansas Attorney General Kris Kobach filed to defend the state’s voter ID law. Kobach lost, and was cited for contempt, one could say, for wasting the court’s time with bad-faith arguments.

Then Borden looks at the lawsuits challenging results of the 2020 presidential election. It has this money quote: 

I looked up the cases that formed the backbone of the state Republican attorneys general who sought to overturn elections in other states. While their argument was never heard for lack of merit by the conservative majority U.S. Supreme Court, the attorneys general cited five primary instances of voter fraud that they claimed show elections are being stolen. In each of those cases — including a wild one in New Jersey and the infamous 2018 GOP congressional primary in North Carolina — it was candidates or their operatives committing the fraud, not the voters. 

You should read the entire newsletter. I agree with much of what he says, especially when he says it should be easier, not harder, to vote.

But I’ll address the (not-in-bad-faith) swing he takes at me. He’s a progressive, I’m (in his words) “North Carolina’s (Usually) Most Reasonable Conservative,” — it’s going in the Twitter bio, Jeremy — so you should expect some disagreements. 

The beef here is over my support of Senate Bill 360. It would require the speaker of the N.C. House and the president pro tem of the Senate to sign off on a settlement to any lawsuit challenging a state law or a provision of the N.C. Constitution in which the General Assembly is a party. It passed the Senate and is in the House.

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The background, over which many pixels have been spilled, was indeed a partisan fight. Last year, the GOP-led General Assembly objected to a back-door settlement the Democrat-run State Board of Elections made with Democrat super-lawyer Marc Elias in a lawsuit. Elias’ clients wanted the board to modify an omnibus election bill the General Assembly passed — 105-14 in the House, 37-12 in the Senate — and Gov. Roy Cooper signed. The law eased a host of voting regulations to accommodate voters and election workers during the COVID pandemic. It wasn’t controversial.

The bill moved in May 2020, not long after the state’s Rules Review Commission unanimously rejected a request by the State Board of Elections for emergency powers to change election rules (or perhaps laws) during the pandemic. Elias later sued the state. 

The Board of Elections wanted to extend the deadline for counting absentee ballots postmarked but not received by Election Day from three days after the election to nine. The three-day deadline had been the law since 2009. The board and Elias settled. In a closed session.

The board also wanted to do other things, but the deadline extension was the sticking point. 

From an article by me published in The Assembly that Borden cites,

The General Assembly was a party in the lawsuit, but it wasn’t involved in negotiations. Indeed, Sen. Paul Newton, a Republican from Cabarrus county and the Senate elections committee co-chair, said lawmakers knew nothing about a deal. They learned it had been wrapped up a few hours after they had been scheduled for a deposition in the lawsuit.

Borden said by backing S.B.360, I “endorsed a partisan power play in the form of a voting bill that would allow the legislature to overturn the outcome of lawsuits it doesn’t like from the state Board of Elections, which is now controlled by appointees of Democratic Governor Roy Cooper.” 

Or, you could say I endorsed a bill that would ensure the state couldn’t settle a lawsuit challenging a state law without legislative leaders’ consent if the General Assembly is a party. It wouldn’t matter whether Democrats or Republicans controlled any branch of government.*

These differing views hark back to the book that largely defined the way I approach political and policy controversies — A Conflict of Visions, the slender but meaty 1987 work by economist and Gastonia, N.C., native Thomas Sowell.**

Among the lessons Sowell offered was how your worldview, or vision (in his terms, “constrained” or “tragic” versus “unconstrained” or “utopian”) often defines how you analyze social and political issues. People on the left can hold either vision, as can those on the right. I’m #TeamConstrained, for what it’s worth. 

I even did a tribute to the book for its ~25th anniversary at the John Locke Foundation this week eight years ago. This may be the only surviving clip:

The book unpacks these visions and their implications with eloquence. The way Jeremy and I look at S.B. 360 is a real-world example of how differing visions temper your views.

To Jeremy, Republicans wanted to mess around with the system after they won. They just wanted to stick it to the Dems and cement their advantage. He wrote,

election officials agreed to rules so that more people could vote by mail and more easily correct accidental mistakes in the face of an unprecedented pandemic and a postmaster general playing partisan politics with the mail system. In short, they made sure — originally with the support of their Republican colleagues — that more votes could be counted, even if the mail was slow. The results? A Board of Elections analysis showed the vote by mail rules yielded roughly equal votes from registered Republicans and Democrats. Thousands were able to “cure” or ensure their votes were counted instead of being tossed out like they usually are if some minor technicality arises.

The GOP may indeed have wanted to take over the world.

But that wasn’t my concern.

The way I saw it, the elections board had tried to get emergency powers through a recognized process (the Rules Review Commission***). It lost. The General Assembly and the governor agreed on legislation setting new rules, and the board tried to bypass the process. Outside the law, as it were.

The General Assembly and the board came to an agreement, of sorts. The board stuck with the three-day deadline even though the U.S. Supreme Court refused to take up a late-October appeal. In a dissent to the review petition Justice Neil Gorsuch said the elections board’s actions were “egregious.”

The winners and losers of the 2020 election were irrelevant to my argument. Processes were established and the board tried to cheat … to gain powers it didn’t have.

A few days after The Assembly piece ran, I wrote a newsletter pushing for yet another process-oriented change in state law that could alleviate some of the obvious hostility between the General Assembly and the elections board: Get rid of the appointed board. Put the secretary of state, an elected official, in charge of elections.

As I’ve dived more deeply into election reforms, I’ve become more committed to the principle that voting should be easy and cheating should be hard. I’m a tougher critic of GOP-led state election changes than I had been — especially those designed to appease a certain person who’s scheduled to speak in Greenville June 5 (and his enablers). I’m also becoming more aware of how rarely actual fraud occurs, although it has an outsized role in election debates.

In other words, this is messy, easy to personalize and perhaps misunderstand. Maybe people holding different visions can work toward a similar goal, though we may arrive there on separate routes.

Excised from my dictionary

Election integrity. A formerly innocuous though subjective term that’s been captured by the Bad Guys. I once thought it conveyed worthwhile objectives. No more.

Dammit.

I claim the rights to confidence and trust. Don’t cross me.

For some fine storytelling about election fraud

I finally listened to the Serial/New York Times podcast series on Bladen County. Fantastic.

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*In the infamous Leandro lawsuit over state support of schools in low-income communities, the plaintiffs cleverly sued the state and the State Board of Education but excluded the General Assembly

**Sowell is still working, though he turned 90 a few months ago. He remains brilliant. But as he has aged, he’s grown more cranky. In a couple of updates to Conflict, he’s abandoned the dispassionate tone of the original and become argumentative and dismissive. The original, and most of his work of that era and before, remain stellar.

***Cooper played his own partisan hand and sued to get rid of the legislative-appointed RRC entirely. The courts haven’t taken up that lawsuit.

Correction: Trump is speaking June 5 at the NCGOP convention. I originally said June 6. I apologize for the error.