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For weeks, President Donald Trump and the two top elected Republicans in the N.C. General Assembly have been claiming without evidence that proposed by-mail voting rules open North Carolina to counting fraudulent ballots.
In a Thursday hearing in federal court, lawyers for the Republicans clarified their arguments.
The rules in question, the ones that the Republican plaintiffs are trying to block, were put in place by the N.C. State Board of Elections for partisan advantage as part of a settlement to a different lawsuit in state court, claimed Bobby Burchfield, a lawyer from a Washington, D.C., law firm representing the Trump campaign.
Until this hearing, none of the parties involved in the lawsuits had directly addressed the real implications of their arguments.
Back in September, the NCSBE, with three Democratic members and two Republicans, voted unanimously for that settlement in the other case. The settlement, which is under appeal in state court and under challenge in federal court, would expand the by-mail ballots that county election offices can accept, even if they have errors on the ballot envelope, rather than making the voter cast a different ballot.
North Carolina’s Republican Party did not like that settlement and forced the two Republicans off the state board. The Republican leaders of the state legislature, House Speaker Tim Moore and Senate leader Phil Berger, have issued over a dozen press releases mixing legal arguments with unsupported facts describing their opposition to the settlement.
They have claimed that the proposed rules, which would include a process whereby voters could have absentee-by-mail ballots counted even without a witness’s signature on the ballot envelope, would open the election to fraudulent votes being cast.
In the hearing, lawyers for Moore and Berger described the ballots in question as “legitimate” versus “illegitimate.” The illegitimate ballots would dilute the vote in the legitimate ballots, argued David Thompson, another lawyer out of a Washington law firm.
Statewide data make it clear that the arguments are backed by partisan interest. More Democratic voters are sending in ballots that would fall into the “illegitimate” category, if the judge sides with that argument.
Voters registered as Democratic or unaffiliated are voting by mail at higher rates than registered Republicans, and they have higher rates of errors or deficiencies on their absentee-by-mail ballot envelopes than those returned by registered Republicans.
It is not clear why this is happening, but all parties in the lawsuit agreed that the voting process is not, on its face, targeting voters of color, who are both more likely to vote for Democrats and to require some sort of cure or do-over for their ballots.
The judge, William Osteen of the federal Middle District of North Carolina, did not speak on the potential partisan advantage for the party that wins this case. Instead, he was focused on the legal process by which the state board justified, after voters had already begun returning ballots, changing the rules for which ballots could be accepted, which needed a cure process before they could be accepted and which needed to be spoiled to have the voter try again.
Until this election, North Carolina did not have a process for curing errors on absentee-by-mail ballots. The state put the procedure in place after Osteen ordered them to do so as a result of a different federal lawsuit.
The state board put one set of rules in place in August. Then, on Sept. 22, it changed those rules, saying it had the authority to do so in part because of Osteen’s ruling earlier in the summer.
The state board did not present the new rules to Osteen before putting them into effect.
“I’m here to tell you that it was not consistent with my order,” Osteen said during Thursday’s court hearing.
Osteen said he will issue his decision by Wednesday, Oct. 14. His order will affect the three similar cases that are in front of him, namely Democracy NC v. NCSBE, Moore v. Circosta and Wise v. NCSBE.
His decision will not be final, as it can be appealed to the federal court of appeals. It will also play into the legal fights on the same issues happening in state courts.