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In their resignation letters, the two Republican members of the N.C. State Board of Elections justified their departures with statements that were contradicted by information that the NCSBE release Friday.
The former NCSBE members, David Black and Ken Raymond, resigned Wednesday night, claiming that NCSBE staff and Department of Justice lawyers, who act as legal counsel for the NCSBE in several lawsuits, misled or failed to inform them on several aspects of lawsuits related to election administration during a Sept. 15 meeting.
Notes from that meeting, which until Friday were not released to the public, show that the NCSBE members were, in fact, informed of those issues.
The meeting in question where Black and Raymond said they were misled was held in a “closed session.” That is a special provision in the North Carolina open meetings laws that says public bodies can meet in private, without public observation or sharing notes of the discussion, in a narrow set of circumstances, in this case, to discuss matters with an attorney.
The remaining three members of the NCSBE voted Friday morning to make public the notes from the closed session and associated documents. This unusual step was taken to counter the claims made by Black and Raymond, according to a statement made by the board’s chairman, Damon Circosta.
“The public has a right to know the truth about what happened during this closed session and about the contents of the documents provided to all members,” Circosta said.
“Any assertion that a member was misled or not fully apprised of the issues at hand is incorrect.”
The resignations, accusations and revelations of meeting minutes come amid a torrent of litigation trying to change aspects of the state’s election procedures and in which both the NCSBE and the legislature are named as defendants.
The resignations are related to one case in particular, called NC Alliance for Retired Americans v. NC. The case was brought in state court by one of the most prominent law firms that represent Democratic interests in elections.
In the Sept. 15 meeting, Black and Raymond voted with the three Democratic members of the board to delegate limited authority to the state’s election director, Karen Brinson Bell, to settle some of the litigation.
On Tuesday, the NCSBE and the plaintiffs in the Alliance v. NC case filed the proposed settlement with the court. This irked state Republicans for two reasons.
Though North Carolina’s legislature is also named as a defendant in the case, the NCSBE did not consult with the legislative attorneys before entering into the settlement. The legislative defendants also disagree with the terms of the settlement.
The Republican leader of the state Senate, Phil Berger, issued a press release condemning the settlement and accusing the NCSBE, without evidence, of “colluding” with the plaintiffs in the case. The next day, Republican Sen. Ralph Hise issued another press release largely to the same effect.
Later that night, Black and Raymond resigned.
At the time, Circosta said that information in their resignation letters was not true, though neither party could be fact-checked because the notes from the meeting in question were not public.
Now that they are available, the notes and associated documents show several inconsistencies in Black’s and Raymond’s statements.
Fact checking the resignation letters
In his resignation letter, Raymond’s said state DOJ attorneys “did not advise us of the fact that a lot of the concessions made in the settlement have already been denied in a prior case by a federal judge and another case by a state court three-judge panel.”
The denials of requests by other courts are documented in a bench memo from the NCSBE’s legal team, a legal memo from the DOJ and in discussion during the closed session, according to notes of the closed session.
Sripriya Narasimhan, deputy general counsel at the DOJ, specifically mentioned that the DOJ was able to uphold the witness requirement, a key issue for Raymond, in two previous cases, according to the meeting notes.
Raymond also wrote that the board was “led to believe that refusal to make a deal that included the extension of mail-in absentee ballots, past the legal acceptance date, would also result in the elimination of the one-witness requirement for residents voting absentee- by-mail.”
This is not reflected in the memos or meeting notes and seems to be a confusion of multiple issues.
The plaintiffs in several lawsuits against the NCSBE are seeking removal of the requirement that a witness sign the ballot envelope for a person voting absentee-by-mail.
The NCSBE unanimously wants to keep the witness provision, according to the meeting notes, and legal counsel felt that settling the case would help preserve the witness requirement. Providing a way to cure ballots with deficiencies was a way to keep the witness requirement. But the extension of the deadline to accept absentee-by-mail ballots voted on or before Election Day is an entirely different issue.
During the meeting, according to the notes, Raymond initially opposed extending the deadline for accepting the absentee-by-mail ballots but after further discussion agreed, along with Black, to extend the deadline to nine days instead of three.
The final two statements in Raymond’s letter are accurate. The DOJ attorneys did express a concern that if the judge decided the cases in favor of the plaintiffs, rather than using the conditions of a settlement, that the administration of the election would become burdensome. The DOJ used the word “difficult,” while Raymond said “impossible.”
The NCSBE was unanimous in the desire to preserve the witness requirement, the notes show, which is an issue Raymond identified as important to him.
Black’s resignation letter is longer and describes his opposition to recent NCSBE actions. In regard to the Sept. 15 meeting specifically, Black said he was surprised by the method the NCSBE chose to “cure” absentee-by-mail ballots that lacked information about the witness.
To-date, 3% of the 227,000 absentee-by-mail ballots returned have some sort of deficiency causing them not to be accepted. By far, the main reason for rejection is that witness information is missing.
In a separate legal case, a judge ordered the NCSBE to create a process by which absentee-by-mail ballots with deficiencies can be corrected and therefore legally accepted and counted.
The NCSBE members discussed the curing process at length, according to the meeting notes.
According to the notes, written informally, “Chair (Circosta) stated that the point of the witness signature is to confirm that the voter voted the ballot. Noted that if cure process confirms it’s the voter’s ballot, confirmation is still occurring.”
Later, NCSBE director Brinson-Bell stated, “Upon receipt of a ballot with no witness, the affidavit would be sufficient.”
At the end of the meeting, Black and Raymond voted with the Democratic members of the NCSBE to delegate the authority to settle the lawsuit to Brinson Bell, based on the parameters that the board members discussed in the meeting.