Richard Bernstein in Election Law Blog
Charter Member Richard Bernstein wrote a guest post for Election Law Blog, providing context and offering a counterargument to a recent North Carolina Supreme Court decision regarding one of the seats on the state’s Supreme Court. The ruling, which could invalidate the votes of certain voters whose eligibility was later challenged, imposes additional requirements on a subset of voters in a way that Bernstein argues violates the Equal Protection Clause. He further warns that the selective application of this decision to only one county in the 2024 election sets a troubling precedent for future elections.
Bernstein writes:
The precedent here would imperil every future close election. This is because it is the same Equal Protection Clause that applies to a state’s election for presidential electoral votes or members of Congress as for a state’s election of its own officials. Under the North Carolina Supreme Court’s precedent, partisan state legislatures could adopt voting preconditions that applied only in counties that happened to vote historically for one party. And where statutory preconditions facially applied statewide, as in North Carolina, candidates could seek to have courts enforce those preconditions only in counties where they would lose. Indeed, because the North Carolina Supreme Court approved this approach five months after an election, losing candidates of both parties could belatedly cherry-pick both the preconditions they sought to enforce and the disfavored counties to gerrymander a belated statewide “victory” when they had lost by the rules in place statewide on election day.