Legislature Urges Court to Deny Secretive ‘Sweetheart’ Settlement in Filing

Raleigh, N.C. — Today, legislative leaders submitted their opposition to the secretive settlement between the Democrat-controlled North Carolina State Board of Elections, the Democratic Attorney General’s Office, and national Democrats’ go-to attorney Marc Elias.

The filing argues that the consent agreement should be denied for several reasons:

• Legislative leaders are co-defendants in the lawsuit but were not consulted or informed of the purported settlement in any way;
• The proposed consent agreement is “a product of collusion, not an arm’s length agreement”;
• It violates the U.S. Constitution’s Elections Clause and Equal Protection Clause;
• The agreement is “not ‘fair, adequate, and reasonable’” because it directly violates state law;
• The settlement is against the public interest.

The Board of Elections belatedly claimed the settlement terms were required by an August 4, 2020 order from a federal judge in a different case. But the Board already issued guidance to comply with that judge’s orders on August 21, 2020. The Board then issued contradictory guidance, which violates state law and is inconsistent with the federal judge’s ruling, on September 22, 2020, the date it concluded secret settlement negotiations with Marc Elias.

Earlier this afternoon U.S. District Court Judge William Osteen entered an order rebutting the State Board of Elections and Attorney General’s claim that his prior order sanctioned the elimination of the witness requirement.

“(The consent judgment) appears to be not an arm’s-length deal between adversaries but a sweetheart deal that gives Plaintiffs substantial changes to the election laws, including some they did not even ask for, while causing North Carolinians confusion and undermining confidence in the integrity o the election,” attorneys for the legislative leaders wrote.

Accepting the settlement “would represent an end-run around the statutes making Legislative Defendants a necessary party to this case and giving them primacy in the defense of state laws from constitutional attack.”

Senate Leader Phil Berger (R-Rockingham) said, “The secretive settlement overrides anti-fraud laws passed by a bipartisan majority of the General Assembly and signed by Gov. Cooper. It is not a negotiation and agreement by adversaries, but rather collusion by political allies. The Board of Elections is changing the rules of an election while it’s currently going on. Instead of instilling confidence in the electoral process, it sows confusion and mistrust. The court should swiftly reject this collusive agreement.”