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With the presidency and control of the U.S. Senate potentially hanging in the balance, North Carolina’s Republican-controlled legislative branch and Democratic-controlled executive branch are waging a pitched legal battle over a small but potentially decisive subset of the mail ballots currently streaming into election offices throughout the state.
At the center of the fight, being fought in both state and federal courts, is the N.C. State Board of Elections, an arm of the executive branch that has the responsibility of running the state’s elections.
Important legal issues are in play, but the Republicans are mixing legitimate concern and legal arguments with unsupported claims about ballot harvesting should their legal arguments not win out.
Here’s what happened: Both the elections board and the legislature are defendants in a state lawsuit that seeks to change or eliminate certain rules governing how voters can cast ballots by mail.
The board set off the tussle by agreeing to settle with the plaintiffs — an advocacy group for senior citizens represented by a prominent national Democratic lawyer — without consulting its co-defendants, the legislators.
On its face, the issue in the lawsuits is whether the state board has the authority, as a state agency, to take action that will affect state law. The consequence of these decisions will be whether about three out of every 100 absentee-by-mail ballots are accepted by county boards of election, or if those voters will have to start the process over again.
A tangled web
In a Wake County Superior Court hearing Friday, the parties will argue about the merits of the settlement and whether such a move is even legal. At the same time, the legislature and President Donald Trump’s reelection campaign both filed federal lawsuits to prevent the settlement from going forward.
In a separate but related federal lawsuit, a judge said last week that recent policy changes by the state board were likely not in accordance with his rulings, which could on its own affect the proposed settlement in the state court case.
The major issue in the lawsuits is whether the state board has the authority, as a state agency, to take action that will affect state law. In particular, the state and federal courts will decide whether the state board can actually enter into a settlement agreement without consulting the state legislature, which intervened in the case and was therefore also named as a defendant.
In addition to the legal battle, the state Republicans are trying to win in the court of public opinion. To do so, N.C. Senate Leader Phil Berger and N.C. House Speaker Tim Moore have issued more than a dozen press releases and held a press conference over the proposed settlement.
While Berger’s and Moore’s public statements identify important legal issues to be addressed in the courts, they also contain several misleading claims that could call the legitimacy of the election into question if the settlement is accepted.
Berger’s press release on Sept. 28, for example, incorrectly states that the settlement agreement would permit “anonymous, unsupervised outdoor drop boxes” for absentee-by-mail ballots. The release presents the nonexistent drop boxes as a potential avenue for ballot harvesting.
Drop boxes for absentee ballots are not allowed in this election, and that will not change under the proposed settlement. The N.C. State Board of Elections members unanimously agreed during a Sept. 15 meeting that they did not want drop boxes for this election. County boards of election record the information for everybody who returns absentee-by-mail ballots in person.
Carolina Public Press contacted county boards of election around the state and consulted with the NCSBE. No county responded saying it has a drop box or mail slot that absentee-by-mail ballots could be dropped into, and the NCSBE is not aware of any, either.
Berger’s complaint is a misrepresentation of a related issue.
It is a felony for anyone to return a ballot for someone other than a close family member or to drop off a ballot in an unapproved way, such as in a drop box not meant for a ballot. But that felony affects the returner, not the ballot.
According to a 2018 administrative rule that is reiterated in the proposed legal settlement, a ballot cannot be rejected by a county board of elections solely because it was returned inappropriately. Under current practice, there must be some other evidence to “establish that the voter did not lawfully vote his or her ballot,” though the rule does not clarify what constitutes evidence.
The statements from Berger’s office combine the myth of “anonymous” ballot drop boxes with the rule about ballots being returned by unauthorized persons, creating a storyline where vote-by-mail is ripe for ballot harvesting. However, this fictitious scenario fails to explain why anonymous in-person returns of absentee-by-mail ballots could constitute fraud when the vast majority of mail-in ballots are dropped off anonymously in mailboxes around the state and delivered by the U.S. Postal Service.
Neither Berger nor Moore has yet expanded the complaints to claim the entire vote-by-mail system is fraudulent.
Rhetoric could undermine the election
The rhetoric in this legal fight could serve to undermine the legitimacy of the election without ever offering any actual evidence of fraud.
This mirrors repeated false statements from President Trump, who has attacked the security of voting by mail, including a litany of false claims at the end of the presidential debate on Tuesday.
Despite his general statements, Trump votes by mail and encourages his supporters to do so as well.
Trump has also repeatedly refused to say he will accept the outcome of the election.
In a similar vein, during a press conference on Friday, Moore declined to say whether he would accept the results of the election if the proposed settlement is accepted by the court and invoked the election fraud carried out by a Republican candidate for U.S. Congress in 2018.
“If you had asked someone that question in 2018 … and they had answered your question, ‘Yes, we’ll accept the results of the election,’ would that have been the right answer?” Moore asked. “It would not have been the right answer.”
Despite Moore’s statement, the system, in fact, worked in 2018 — the ballot fraud was caught, and the election results were never made official. The NCSBE ordered a new election, which a new Republican candidate, Dan Bishop, won. Bishop was also at the press conference to speak against the proposed rules.
This week, Trump’s campaign sent letters to Republicans on North Carolina county boards of election urging them not to follow the rules set by the NCSBE, WRAL reported.
Last week, the state Republican Party forced the two Republican members on the NCSBE to resign, according to reporting from the News & Observer. The Republican Party was unhappy that the members, David Black and Ken Raymond, voted alongside the three Democrats to give settlement authority to the state’s elections director, Karen Brinson Bell, on Sept. 15.
The Black and Raymond resignation letters and subsequent press releases from Berger’s office misrepresented the NCSBE’s actions in the lawsuit.
How many ballots are being fought over
If current trends continue, the fight over these rules could affect, at the outside, just over 1% of the total ballots cast in the election. These would all be absentee-by-mail ballots that are returned inappropriately, that arrive between three and nine days after Election Day but are postmarked on or before Election Day, or where a witness did not fill out all the required information.
What a press release from Republican state Sen. Ralph Hise calls the “defining fight of 2020 N.C. election” is a legal battle that will only impact the very closest of elections.
That said, a new poll out from Meredith College shows the presidential race between Trump and former Vice President Joe Biden and the U.S. Senate race between incumbent Republican Thom Tillis and Democrat Cal Cunningham to be dead heats in North Carolina.
In 2016, the governor’s race between now-Gov. Roy Cooper and then-Gov. Pat McCrory was decided by 0.2% of the vote. The Meredith Poll shows Cooper roughly 10 points ahead of his Republican challenger, Dan Forest.
This year, North Carolina’s votes could sway the presidential race and determine control of the Senate. The importance of this election has both parties fighting for every last ballot.
How vote-by-mail became politicized in NC
More people are voting by mail than ever. It is projected this year that close to 40% of North Carolina voters casting ballots this year will do so by mail, compared with 4% in 2016.
Democrats and nonprofit voting rights groups that favor Democratic and unaffiliated voters have pushed hard for their supporters to use vote-by-mail. So far this election, county boards of elections have accepted 167,952 absentee-by-mail ballots from registered Democrats, 92,605 ballots from registered unaffiliated voters and 52,601 ballots from registered Republicans.
Of the returned and accepted absentee-by-mail ballots, 53% are from registered Democrats, 29% are from registered unaffiliated voters, 17% are from registered Republicans, and under 1% are from voters registered with other political parties.
Compare that to the state’s voter registration statistics, where 36% of voters are registered Democrats, 33% are unaffiliated, 30% are Republicans and 1% are with the Constitution, Green or Libertarian parties.
In other words, ballots cast through the mail are more likely to contain votes for Democratic candidates, simply because more registered Democratic voters have requested by-mail ballots. If Republicans can keep some of these ballots from being counted or call the entire method into question, it could favor their political interests. If Democrats can have more of these ballots counted, it likely favors their candidates.
North Carolina has seen this kind of fight often enough in recent years. Take photo ID, a law that would disproportionately disenfranchise Black voters and voters of color if it were to go into effect. Put more directly, it would disproportionately impact voters who are more likely to vote for Democratic candidates up and down the ballot.
Fights over photo ID or the mail-in ballot rules are fights over counting votes that are more likely to favor one party over another.
The White House and many other Republican politicians nationwide have attacked the vote-by-mail process using misinformation and language that could call the legitimacy of the election into question — but only if they lose.
Democratic politicians and interests are trying to expand access to voting by mail and to quickly find solutions to the problems that plague that voting method, such as high numbers of ballots that get rejected, especially for Black voters, due to a lack of required voter or witness information.
Concerns about the court
Several of the claims Berger and Moore made in their press releases are inaccurate because they present Republican members of the NCSBE being at odds with other members.
Notes from a closed session at a Sept. 15 NCSBE meeting show that the board unanimously wanted to preserve the witness requirement that is part of the North Carolina absentee ballot. This is the vote for which the state Republican Party forced the Republican board members to resign.
Both the NCSBE and state Republicans are wary of Wake County Superior Judge Bryan Collins, who is set to hear the case, Alliance v. NCSBE, on Friday, though they each have different reasons. The NCSBE released notes showing that its legal counsel feels Collins is “likely sympathetic to the plaintiff’s viewpoint on witnesses.”
Likewise, the Republicans have been attacking Collins over a ruling he made last year, recently overturned by the state Court of Appeals, in which he called the legislature a “usurper body,” according to a Berger press release.
The NCSBE’s notes show that in an effort to avoid unanticipated rulings by Collins and judges hearing other voting cases in North Carolina, they entered into a proposed settlement in the Alliance case.
In a confluence of lawsuits, a federal judge from another lawsuit, Democracy NC v. NCSBE, already required a cure process for absentee-by-mail ballots in North Carolina. Under that judge’s order, issued in August, the NCSBE sent an updated guidance to county boards of election last week, saying voters can cure absentee ballots that did not have the witness information filled out. That process was then wrapped into the Alliance settlement.
Beyond agency authority?
The NCSBE may have overstepped its bounds.
State law requires that anyone voting an absentee-by-mail ballot have a witness as a preventive measure against fraud. Missing witness information on the mail-in ballot envelope is, by far, is the main reason absentee-by-mail ballots are not accepted and require either a cure or a new ballot to be sent to the voter.
The NCSBE felt, according to meeting notes, that if there was not a way to cure the ballots that were returned without witness information, Collins may throw out the witness requirement entirely. However, in creating that cure, the NCSBE also seemingly created a loophole whereby some voters who use absentee-by-mail will not require a witness.
Under the current cure guidelines, the county board of elections would send a certificate to the voter to confirm that the ballot received was indeed voted by the voter whose name is on the ballot.
For the under 3% of all by-mail ballots that have these kinds of errors, voters would have the option of confirming their own ballots without needing a witness to sign off on it.
The NCSBE used the judge’s ruling in the Democracy NC case as the reasoning for updating the absentee-by-mail cure process to include deficiencies in witness information but did not notify the judge in that case until state Republicans and the Trump campaign filed separate lawsuits in federal court.
The NCSBE’s logic, shown in the meeting minutes and legal memos, is that voters issue this kind of confirmation when they vote in person, so if the goal of the witness requirement is to ensure that the correct person is voting the ballot, this process should suffice.
“Chair (Damon Circosta) stated that the point of the witness signature is to confirm that the voter voted the ballot,” according to the meeting notes. “Noted that if cure process confirms it’s the voter’s ballot, confirmation is still occurring.”
Last week, the judge in that case, William Osteen of North Carolina’s middle federal court district, rebuked the NCSBE. The new cure guidance “was not consistent with the court’s order,” he wrote.
The NCSBE’s rule allows for any deficiency in the witness information to be cured by the voter himself or herself. Osteen seems to find a cure acceptable if the witness’s name or address is missing, but not the witness’s signature.
“Notably, for an absentee ballot to be valid, the voter must have marked the ballot in the presence of the witness, and the witness must sign the ballot as a witness,” he wrote.
The NCSBE’s rule stands for now, but Osteen has ordered a new hearing to take place as soon as possible to determine what action is needed by the court to fix the problem.
County boards of elections began processing absentee-by-mail ballots on Tuesday. Since counties were following NCSBE rules, county boards voted to accept by-mail ballots that were missing witness signatures and were cured. That means that county staff removed those ballots from their envelopes and scanned them into a tabulator, in effect preloading the results into the scanner for quick counting on Election Day.
But if the courts change the rules and some of the ballots that have been processed can no longer be accepted, counties track the ballots and can remove them from the final count. Since the current cure process is relatively new, from Sept. 22, relatively few ballots will need to be pulled back, but if this legal fight drags on, county boards of elections could be facing a massive administrative hurdle of fixing the vote count. County boards of election meet every Tuesday until Election Day, at a minimum, to process more absentee-by-mail ballots.
Osteen’s complaint about the cure process that gets around voters needing a witness is that it is a rewrite of state law. He is less concerned about the change opening the election to fraud, writing that “evidence does not demonstrate that the witness requirement is integral to initially detecting voter fraud.”
Berger’s and Moore’s press releases say, without providing evidence, that creating a loophole around the witness requirement could open the election to fraudulent behavior. Though the loophole is likely a violation of state law, it is not clear how it could affect the security of the election.
Extending the vote count
The proposed Alliance settlement would extend the deadline for accepting absentee-by-mail ballots for nine days.
Berger’s press release says the extension could provide “uncertainty and opportunity for gamesmanship after Election Day,” though it did not provide evidence for either claim.
The current deadline for accepting absentee-by-mail ballots is 5 p.m. three days after Election Day and is set by state law.
Plaintiffs in the case and the NCSBE are seeking to extend the deadline because of the slowdown in U.S. Postal Service delivery, caused by complications from the new coronavirus pandemic and by new policies implemented by Trump’s appointee to head the Postal Service, Louis DeJoy (three federal courts have blocked further changes that could slow mail service).
Under the proposed settlement, all ballots would need to be voted on or before Election Day, as is the rule now. But county boards of elections could accept legally voted ballots for longer. The proposed settlement would also expand the evidence that could be used to show the vote was cast before the deadline.
Current law says the ballot envelope must be postmarked by 5 p.m. on Election Day. Since the USPS does not postmark all mail and has admitted as such, the NCSBE would consider other data such as data from the new ballot-tracking system in determining if the ballots were out of the voters’ hands on time.
The extension would not delay the final vote count in the election (but more litigation might). Though county boards of elections report when they receive absentee-by-mail ballots after Election Day, they still do not count the ballots until the county canvass, which occurs on Nov. 13 this year.
Legitimate complaints from the Republicans
The proposed settlement between the NCSBE and the plaintiffs in the Alliance case makes an unusual deal, according to former N.C. Supreme Court Justice Bob Orr.
“This is the most remarkable document I recall seeing,” Orr told Carolina Public Press last week.
The settlement purports to change state laws written by the legislature without admitting that those laws violate the state Constitution in any way and only changing the laws for 2020.
Orr, who is now semiretired and in private practice, said he has never seen a settlement like this before. Usually, a party has to agree that there is a constitutional violation and that it will make changes to remedy that violation, but that is not the case here.
“If nobody’s agreed that there’s anything unconstitutional about the laws in place, what authority does anybody have to come in and say, ‘Well, we’re not going to comply with them, we’re gonna change them,’” Orr said.
State Republicans and the Trump campaign, per the federal lawsuits each of them filed over the weekend and in public comments, say this settlement agreement is an attempt of the NCSBE to rewrite state law.
“I think the most brazen example of that is moving from the three-day to the nine-day period in which ballots can be accepted,” said Pat Ryan, a spokesperson for Berger’s office.
Orr agrees, with the caveat that the NCSBE did not start the lawsuit.
“They do rewrite state law for the 2020 election,” he said.
The justification seems to be that the NCSBE is claiming state-of-emergency powers for Brinson Bell, the state’s elections director.
“They’re sort of ducking around, to a certain extent, that issue by saying, ‘Well we’re not determining anything’s constitutional,’” Orr said. “’We’re just agreeing that in order to settle the lawsuit, we’ll make these changes to the law.’ I don’t think they can do it.”
Orr made clear that this is just his opinion based on one reading of the lawsuit and settlement and that he is not involved in the lawsuit in any way.
Though he is a Republican and served on the state Supreme Court as a Republican judge, Orr publicly opposes Trump’s reelection and now says he’s an independent observer of this fight.
Whatever the final laws are for North Carolina’s November election, they will be decided by infighting, if not so much a balance of powers, between the legislature and the executive branch and between federal and state laws argued over in court.
No matter what the courts land on, no evidence suggests that, for any of the rules under consideration, any legitimate concern exists about election fraud that could sway the election.