Lawsuit settlement bill sparks legal debate in North Carolina Senate

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The North Carolina Senate approved a bill Tuesday requiring legislative leaders to sign off on lawsuit settlements involving the General Assembly that challenge the state’s laws or constitution.

Sen. Paul Newton, R-Cabarrus, one of Senate Bill 360's sponsors, said the measure targets collusive settlements, also known as settle-and-sue cases.

According to the legal dictionary, a collusive action is a “lawsuit brought by parties pretending to be adversaries in order to obtain by subterfuge an advisory opinion or precedent-setting decision from the court.”

The legislation was filed in response to a legal settlement that changed election rules ahead of the November election.

Newton said North Carolina Attorney General Josh Stein and the state election board’s September settlement with the North Carolina Alliance for Retired Americans and seven voters was a collusive settlement.

The plaintiffs sued the state for changes in the voting process to protect older voters from the spread of COVID-19.

Newton and the other Senate Redistricting and Elections Committee leaders said the agreement was made in secret, without the knowledge of two of the defendants, Senate Leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland.

Stein and the election board made the deal with the Democratic party’s top lawyer, Marc Elias, Newton said. Stein and North Carolina State Board of Elections Director Karen Brinson Bell are Democrats.

Republicans also argued the settlement was unconstitutional since it changed state law after previous failures to change similar rules. Bell told lawmakers at a recent hearing the settlement changed election rules, not laws.

The settlement allowed absentee ballots to be accepted up to nine days instead of three days ahead of Election Day. It also allowed voters to use a signed affidavit to support the validity of their absentee ballots, among other changes during the November election.

Republicans, including former President Donald Trump’s campaign, challenged the settlement up to the Supreme Court. Newton said Tuesday that SB 360 would prohibit collusive agreements.

Sen. Jay Chaudhuri, D-Wake, backed Bell’s argument that the settlement did not change the law. He said it was not a secret, product of collusion nor illegal.

“In the end, no appellate court, federal or state court concluded that there was anything wrong with the settlement agreement or the board's authority to enter into the settlement agreement,” Chaudhuri said.

Chaudhuri read off a list of instances when the state election board used its power to change election rules during an emergency. He also argued the bill is legislative overreach since it aims to take the election board’s decision-making power away.

Newton said the day the settlement was announced, Berger and Moore’s attorneys showed up for a disposition and then were told broadly about the agreement. The details were released later to the Legislature's attorneys.

Newton also rejected Chaudhuri’s claims of overreach of authority.

“The fact of the matter is that this bill actually improves on the separation of powers. It doesn't impinge on that whatsoever,” Newton said. “In fact, the only entity guilty of crossing the line on separation powers is the board of elections.”

The Senate approved the bill, 28-21. It now heads to the House for consideration.

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