Buncombe County election workers prepare mail ballots for review by the county’s elections board in late September. Victoria Loe Hicks / Carolina Public Press

A fiercely challenged legal settlement on how North Carolina will run absentee-by-mail voting received a judge’s approval Friday afternoon in state court. 

But that may not matter, because a parallel hearing is underway this evening at a federal court in Raleigh. Meanwhile, one group of defendants  — state legislators  — immediately announced plans to appeal the state court’s decision

The settlement is between the North Carolina State Board of Elections, who are among the defendants in the case, and the North Carolina Alliance for Retired Americans, which sued the state to challenge some of the laws surrounding how voters returned absentee-by-mail ballots and how counties decide which ballots to accept or reject. 

The state legislature, led by Republicans in the House and Senate, interceded in the case, meaning they were also defendants in the lawsuit. They opposed the settlement between the NCSBE and the Alliance.

In a five-hour court hearing in Wake County Superior Court, Judge Bryan Collins heard arguments over whether the NCSBE entered into the settlement legally, if the NCSBE has authority to make the changes in question and whether those changes can occur in the middle of an ongoing election.

On all fronts, Collins ruled in favor of the settlement. 

The legislative defendants, namely Speaker of the House Tim Moore and Senate leader Phil Berger, are also suing the NCSBE in federal court to block the settlement agreement from going into effect. That case is being heard in the Eastern District of North Carolina this evening. President Donald Trump’s reelection campaign filed a similar suit in the same federal district.  

The settlement would extend the deadline for when by-mail ballots can be accepted by county boards of election, allows voters to fix errors on their ballot envelopes that would otherwise invalidate the vote and make other clarifications for accepting by-mail ballots.

Taken together, these ballots could together account for as much as 2% of the total ballots cast in the election, if current trends hold.

Judges are elected in North Carolina. Collins, a Democrat, is up for reelection

Last week, the NCSBE announced the proposed settlement that Collins approved today. The settlement angered state Republicans. The five-members of the NCSBE had to vote to allow the board to enter into the settlement, which they did during a Sept. 15 meeting.

The two Republican members on the NCSBE at the time voted in favor of entering the settlement. On Sept. 23, both members resigned at the behest of the state Republican party, the News & Observer reported

Part of Friday’s settlement agreement discussed a rule for “curing” absentee by-mail ballot envelopes with errors or missing information, which are submitted to county boards of elections.

The NCSBE’s current rule over which errors can be cured is based on yet another court case, Democracy NC v. NCSBE, in which the judge said the state must allow voters to cure some errors. 

On Wednesday afternoon, that judge, William Osteen of the Middle District of North Carolina, issued an order saying that NCSBE’s rule was not in compliance with his previous order. 

The NCSBE’s rule allowed voters to cure ballots missing a witness signature. In North Carolina, absentee-by-mail voters are required by law to have a witness observe them voting their ballots as an assurance that the voter in question is actually the one who filled out the ballot. 

Osteen said allowing voters to attest to their own ballots, without having a witness signature, violates state law. He scheduled a hearing for next week on the matter. 

Between the two challenges to the settlement in federal courts, the appeal of the settlement by state legislative defendants and the Osteen hearing next week, this matter is far from settled.

UPDATE: On Saturday, a federal judge temporarily blocked election rule changes that were part of a state court settlement agreement. Judge James Dever III said the rule changes violated the Equal Protections Clause of the U.S. Constitution. Dever then transferred the case, along with a similar lawsuit that President Donald Trump’s re-election campaign filed in an effort to block the rule changes, to Judge William Osteen, who has been overseeing another federal lawsuit about elections in North Carolina. Osteen will hold a hearing on the cases at 2 p.m. Wednesday, Oct. 7.

Jordan Wilkie

Jordan Wilkie is a Report for America corps member and is the lead contributing reporter covering election integrity, open government, and civil liberties for Carolina Public Press. Email jwilkie@carolinapublicpress.org to contact him.

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