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Editor’s note: This article was initially published on Nov. 23, 2016. Several update notes have been included with the appropriate sections throughout to explain how the situation has evolved since then. None of the original reporting has been deleted.
Results of the delayed vote count in some North Carolina elections won’t be determined until well after Thanksgiving, due to official protests and several races that are close enough to qualify for recounts. A federal lawsuit could potentially put the count in doubt for much longer, with a much larger number of votes in question.
Political watchers can be forgiven if they’re confused, with a storm of misleading or false reports and social media posts not helping the situation. The governor’s race has received the most attention, but the state auditor’s race remains even closer. The issues at the state level are also delaying a final decision in some very close local races, including a county commissioner contest in Buncombe County.
Carolina Public Press attempts to carve through this turkey and explain what’s happening at each level.
Cooked up with stuffing?
Incumbent Republican Gov. Pat McCrory trails his Democratic challenger, Attorney General Roy Cooper, by about 7,700 votes out of almost 4.7 million cast. But McCrory has refused to concede. That’s led to accusations from Cooper’s camp that McCrory is exhibiting poor behavior after losing. Cooper’s team has announced that it’s moving on with its transition process.
But even without other issues, a margin of difference under 10,000 votes is enough to allow McCrory to demand a statewide recount, which he has done. Statistically, the odds of finding thousands of errors are very good, but the odds of finding thousands that consistently add enough votes to McCrory’s total to make up the difference aren’t good.
Even so, the governor has issued a number of other allegations about election improprieties and irregularities, with results in more than half of the counties being questioned.
How credible are these allegations? It varies from location to location with varying numbers of votes at stake. The situation in Bladen County involves absentee ballots that were returned with similar handwriting filling in the name of a local write-in candidate, but also casting votes for Cooper and other Democrats. In Durham County issues have arisen over an electronic glitch, which might have resulted in a miscount. Some larger counties have drawn protests on multiple grounds.
Fewer issues have been raised with votes in Western North Carolina counties, which were generally more favorable to the governor anyway. But until the canvassing process is completed — and it’s been repeatedly delayed while the state board of elections decides on some unresolved issues — additional protests may be filed.
Buncombe County didn’t face any protests until Wednesday morning, the county elections director told CPP. She said the county now faces protests over ballots allegedly cast by two deceased voters and one felon.
A protest in Burke County says someone voted using the registrations of dead voters there. Jackson County is also among several counties where protests focus on ballots illegally cast by convicted felons.
According to the Cooper campaign, even if all of those protests were successful, the result might be a net change of a few hundred votes, not enough to change the outcome. But McCrory’s campaign disputes that math. And with the window not closed on additional protests, the number of votes being protested remains a moving target that keeps increasing in size. That target may also be a meaningless phantom, as there’s no guarantee that McCrory will prevail in any protests. Already, the Durham Board of Elections has been unfavorable to the governor’s complaints about handling of the Election Day glitch there. In Durham, as in every other county, the board is controlled by the governor’s own party.
Regardless of the math, the more protests McCrory can win, the narrower Cooper’s overall margin of victory. If the difference could be whittled down substantially, McCrory’s statistical chances of reversing the outcome in a recount might improve dramatically.
But the results of a recount are highly unpredictable. While perhaps unlikely, an ironic scenario might occur in which McCrory’s protests somehow give him a lead, but leave the election close enough for Cooper to demand a recount, with Cooper potentially picking up enough votes to reclaim victory.
Cooper’s campaign has also disputed the credibility of protests coming from McCrory and his supporters. That difference of opinion may depend on preconceived notions about election corruption held by each side.
It’s long been a canard among Republicans that the historical corruption the Democratic Party of the early 20th century used to control election outcomes through dead voting and stuffed ballot boxes in the Jim Crow South didn’t end when black voters migrated to the Democratic Party. Democrats can confidently point to the very low numbers of proven voter fraud cases in statewide elections as evidence that the Republicans are fabricating such conspiracies to generate false fears about fraud.
But Republicans say that’s because the fox was in charge of the chicken house. They can point to the unique system Democrats set up in North Carolina to ensure that the party of the governor controls state and county election boards regardless of the makeup of the county governments and General Assembly. As a result, 2016 is the first time in 24 years that Republicans have been in charge during elections for president, governor and council of state offices. Of course, that’s a long way from proving that Democrats during that period ran dishonest elections, many of which they lost.
Democrats have long contended that it’s Republicans who have taken up the tactics of racial discrimination, using voter ID laws and other measures to disproportionately discourage black and Hispanic voters. The federal courts have somewhat agreed, striking down the state’s voter ID law for being calculated to disenfranchise black voters. Of course, Republicans say that decision came from highly partisan judges and might not stand on appeal.
It’s also possible that neither side fully believes its own party’s propaganda about the corruption of the opposition, with both acting cynically to sway the outcome of the election.
Before other questions are taken into consideration, it’s clear that neither candidate has the high ground to claim any sort of mandate. Most voters who participated in this election did not select McCrory. And most voters also rejected Cooper. That’s true because more than 100,000 votes went to the Libertarian candidate, Lon Cecil. While Cecil is the one candidate who clearly lost the election and was rejected by the largest majority of voters, his candidacy did serve as a spoiler and can be accused of creating the confused situation. Or maybe not — it’s possible that without Cecil on the ballot, those voters might not have cast a ballot in this race or might have leaned toward McCrory or Cooper in roughly equal numbers, so that the result would be the same one as today.
UPDATE, Nov. 29, 2016: Additional counting has only expanded Cooper’s margin of advantage, though it’s still less than 10,000 votes, which is the threshold to avoid a recount. McCrory’s campaign has been widely criticized for protests against small numbers of voters in many counties. As of Nov. 28, most counties dealt with these protests, either by small adjustments to the vote totals if an individual protest was upheld (not always in McCrory’s favor) or through dismissal of protests for which there was no supporting evidence. The specific situation in Durham County remains to be decided and involves a much larger number of questioned votes than those in other counties. McCrory’s campaign has voiced support for a hand recount in Durham and indicated that it might then accept the results and not seek a statewide recount.
UPDATE, Dec. 1, 2016: Cooper’s lead has grown to beyond the 10,000 vote margin to trigger a statewide recount. However, in a 3-2 party-line vote, the N.C. Board of Elections voted Nov. 30 to authorize a full recount in Durham County, to address the appearance of a glitch there. One board remember reminded others of fraudulent practices in which a trailing candidate had votes added late in a count in order to tip elections in past decades, specifically referencing fraud in Madison County elections. The recount for Durham is expected next week. If that results in change that brings the election difference to less than 10,000 votes, whichever candidate is running second could call for a statewide recount.
What else is at stake?
Several other statewide elections had extremely close results, with some going to Democrats and some to Republicans, but only one of those races is currently within the statutory margin of difference to force a recount, 10,000 votes. The trailing candidate in the state auditor’s race, Republican Chuck Stuber, has said he will seek a recount. He currently trails the Democratic incumbent, Beth Wood, by about 3,000 votes. The protests issued by McCrory’s campaign and its supporters could potentially end up aiding Stuber.
A number of local races around the state also remain in doubt, though a county commission contest in Buncombe County appears to be the only one in WNC. The latest count has Republican Mike Fryar leading Democrat Nancy Nehls Nelson by just 311 votes in the race for a District 2 seat.
According to county election officials, a handful of provisional and absentee ballots have to be approved and potentially counted at canvassing, which has currently been postponed until Monday, Nov. 28. (It has been postponed several times, so this could change yet again.) The delay involves the proper way to handle the absentee votes of people who have died. The number of ballots is very small and could not alter the outcome of the commission race. But Nelson is close enough to demand a recount and has indicated she will do so. The recount cannot take place until after the canvassing.
Every county also faces similar issues with small numbers of uncounted ballots, which could further affect the precise margins in the two statewide races ahead of expected recounts.
UPDATE, Nov. 29, 2016: Buncombe County has certified its results and is waiting on the timing of an expected statewide recount in the governor’s and auditor’s races before setting a schedule for the county-level recount, which Nelson has requested.
A legal challenge
Aside from all the state-level maneuvering, a conservative organization filed a federal lawsuit on Tuesday that could have a much broader impact on the outcome of state elections. The Civitas Institute argues in its filings that part of North Carolina’s election procedures violates federal constitutional requirements for equal protection for all people under the law.
When a voter registers, mail is sent to that person’s address to determine that the person is real. If the mail comes back as undeliverable, that person can be removed from the voting list. But under same-day registration procedures used during early voting, someone could cast a vote immediately. In a few cases, not enough time passed between the votes and the tally for that mail to be returned, so the vote is counted even if the mail later comes back as undeliverable.
“To count ballots without verification of same-day registration information discriminates by treating one class of voters differently from another,” Civitas President Francis De Luca said in a statement posted to the organization’s website.
“Furthermore, this calls into question the outcome of close elections such as the one we are still in the middle of in North Carolina. Legitimate voters should never have their votes cancelled by illegitimate voters. The State Board of Elections should examine every ballot cast via same-day registration to verify that every vote cast is genuine and legitimate.”
Susan Myrick, elections policy analyst for Civitas (not the former congresswoman), told CPP on Wednesday that the organization wants the courts to force the state to withhold certification of the results until at least Dec. 8, when the deadline for that returned mail would have passed. But the lawsuit would not be moot when that date passes because it also seeks forced removal of those same-day registration early voters whose mail is returned.
Myrick said more than 70,000 votes could be in doubt as a result.
The fate of this lawsuit and its potential impact is unclear. Federal courts had previously forced North Carolina to keep same-day registration for early voters after the General Assembly attempted to restrict the practice. How the courts might handle vacant offices while the challenge works its way through the courts is also in doubt.
If the federal courts are receptive to the complaint, North Carolina’s elections could remain in doubt for substantially longer.
Besides the lawsuit, Civitas has issued a request to the State Board of Elections to delay action voluntarily until after Dec. 8. CPP has reached out to the State Board for clarification on how that request is being handled, but did not receive a response prior to publication of this report.
UPDATE, Nov. 29, 2016: A federal court has set Friday, Dec. 2, as the date for a preliminary hearing on this lawsuit. At least one liberal organization has asked the court to dismiss the Civitas lawsuit outright.
UPDATE, Dec. 1, 2016: The federal court hearing has been postponed to Thursday, Dec. 8. One cause for the delay was apparently the need for the N.C. Board of Elections to seek independent counsel. Cooper, as attorney general, would normally provide counsel but has an obvious interest in the outcome of the case. Myrick of Civitas told CPP that the organization has no plans to withdraw its lawsuit, no matter the margin of difference in the governor’s race. The organization was critical of the same-day registration screening procedures prior to the election and wants the courts to address its concerns regardless of the impact on specific contests, she said.