Durham County Board of Elections staff process absentee ballots last week at the agency's warehouse. Each blue bin holds ballots from a different precinct. The workers are removing ballots from absentee-by-mail envelopes and flatten them, to be scanned in batches later on. Jordan Wilkie / Carolina Public Press

North Carolina’s Republican legislative leaders pledged to take the fight over absentee-by-mail voting to the Supreme Court of the United States after a lower federal court denied their lawsuit on Wednesday evening and partially granted their argument in another. 

National Republican groups have already appealed.

The lawsuits, or rather the entanglement of three federal lawsuits and a state lawsuit, could at most affect 1% or 2% of the total votes cast in North Carolina, yet in a swing state with a history of close races, both parties are clamoring for each and every vote.

Political scientists and election watchers around the country have proclaimed that North Carolina is a must-win state for President Donald Trump to win the election over Joe Biden and that the party majority in the U.S. Senate hangs on the race between incumbent Republican Thom Tillis and challenging Democrat Cal Cunningham.  

The battle lines have been drawn, and the talking points have been rehearsed for years. Republicans have been summoning the specter of ballot fraud if certain ballots are counted, while Democrats will call out voter suppression if they are not. 

Back in August, Judge William Osteen of the federal Middle District of North Carolina ordered the N.C. State Board of Elections to create a cure process by which absentee-by-mail voters could fix problems on their ballot envelopes and thereby have their ballots counted, rather than having to submit entirely new ballots. 

In August, the state board put out a “cure guidance” that did not raise concerns from the state Republicans. The voting rights group that sued for that change did not think it went far enough but did not go back to court to force the issue. 

Then, on Sept. 22, the state board issued a new guidance to county boards of election that would have them cure an even bigger subset of errors on absentee-by-mail ballots, including those missing witness signatures, which are required by state law.

The board used Osteen’s August ruling as a cover for having the authority to change the cure criteria, even after thousands of absentee-by-mail ballots had been returned around the state. That same day, the state board announced a proposed settlement agreement with Democratic-backed plaintiffs in a lawsuit filed in state court. 

That’s when the litigation became prolific and cantankerous between the N.C. State Board of Elections, which has three Democratic members and two Republican members, and the Republican leaders of the state legislature. 

The state court judge accepted the settlement, though he has not yet finalized that decision, and the Republican leaders filed new lawsuits against the NCSBE in federal court to try to block the state settlement from going into effect. President Donald Trump’s reelection campaign filed a similar lawsuit in the same federal court district. 

Rick Su, a law professor at UNC Chapel Hill, politely called the lawsuits “a mess” in which no party’s hands are clean. 

For elections watchers, these lawsuits are about which votes will get counted and which candidates that will favor. For legal observers, the court cases raise questions about the limits of federal court and state court jurisdictions.  

Osteen is “treading on a very fine line” in his rulings on Thursday. 

“I think the basic legal question, in some ways, is whether … the State Board of Elections has the legal authority to essentially propose these rule changes … but that itself is as a state law question,” Su said. 

That a federal judge is ruling on these issues is a big deal, Su said. 

In one case, Democracy NC v. NCSBE, Osteen seems to decide that he had the authority to rule on the cure process because it was his order back in August that originated that process. The NCSBE’s misuse of the order, as Osteen describes it, grants him further authority to weigh in on the matter, even as it is before state court. 

In the other, the combined Moore v. Circosta and Wise v. NCSBE cases, Osteen said he would likely have ruled in favor of the Republican plaintiffs but for it being so close to Election Day. This is the case that North Carolina Republicans Tim Moore, speaker of the House, and Phil Berger, leader of the Senate, brought to federal court, and vowed to appeal.

“I don’t know how this ends,” Su said. “We’re going to get results for the election, but there is a deeper issue here about using federal courts to intervene in deciding what seems to be, you know, at the core of this is a state law question.” 

Consequences in counting votes

Any election would have to be extremely close for the maneuvering over these ballots to have any effect. So far, over 97% of absentee-by-mail ballots have been accepted outright. 

That leaves the under 3% that have been cured or are pending a cure. But the margin of benefit for either party is much lower. 

Osteen’s order in Democracy NC really only deals with ballots that are returned without a witness signature. When the state board updated its guidance to counties on Sept. 22, it said that voters could cure their own ballot envelopes even if the problem was that there was no witness signature, which is otherwise required by state statute. 

This, Osteen said, was a clear misinterpretation by the NCSBE of his August order requiring some errors on ballots to be cured. That, by no means, Osteen said, meant that all errors could be cured, especially when the cure was in violation of state law. 

“Under no circumstances was the due process remedy ordered by this court intended to eliminate the state’s statutory requirements for marking a ballot when voting absentee,” Osteen said in his order. 

In Wednesday’s order, Osteen issued an injunction preventing the state from curing absentee-by-mail ballots with missing witness signatures. Per his order, all other cures can go forward.

Statewide absentee-by-mail data does not include information on how many ballots were cured that were missing the witness signature, nor does it include how many of the ballots pending a cure have the same deficiency. But it is, at most, some partial fraction of the under 3% of absentee-by-mail votes that have needed any attention at all before being accepted. 

If current trends hold, all the cured ballots will account for about 1% of the total votes cast in the election, at the most. 

But not all those votes go to a single party. Registered Democratic, unaffiliated and Republican voters are all using vote-by-mail at record rates in North Carolina. Registered Democratic voters are using it at the highest numbers, with Republicans in the least, and Democratic voters are needing to cure their ballots at higher rates than Republicans. In the end, though, the net partisan advantage of these absentee-by-mail rules falling in favor one way or another is a percentage of a percentage.

And there’s no guarantee that an affiliated voter backed the party ticket in North Carolina, which has a long tradition of crossover and split-ticket voting.

To cut the margins even slimmer, voters who cannot cure an error, are still allowed — even encouraged by county boards of election — to cast another ballot. They can do so with another absentee-by-mail ballot, in-person during early voting or on Election Day. 

To date, almost a third of voters who have spoiled their absentee-by-mail ballots have successfully cast a new ballot, and that was even before early voting had started. 

This process is so convoluted, though, that voters may struggle to understand why some ballots were counted and others were not. 

“If the vote’s not close, then no one cares,” Su said.

But if any electoral race comes down to a margin of a percent for victory, such as the gubernatorial race did in 2016, the results of the litigation could be “be ammunition on both sides” for complaining about the legitimacy of the outcome, Su said. 

“I almost hope the election isn’t close, right, whichever way,” Su said.

“If these injunctions are going to make an impact, there’s going to be a bad story to tell either side, regardless of how it comes out.”

Consequences for Moore v. Circosta and Wise v. NCSBE

Osteen’s other decision on Wednesday evening, in the lawsuits where state Republicans and Trump’s reelection campaign sued to block the state court settlement changing some election rules around accepting absentee-by-mail ballots, has a less quantifiable effect on how many votes will be counted. 

In the state settlement — which is not final and for which the judge has a hearing on Friday — the state board made a legal change that would allow counties to accept by-mail ballots for nine days after the election, rather than the current three. The ballot envelopes have to be postmarked or have some other proof that they were voted before 5 p.m. on Election Day. 

The state board justified this change because the U.S. Postal Service warned states back in August that election mail delivery will be delayed due to COVID-19. North Carolina’s deadline for requesting an absentee ballot is too late to guarantee that a voter will receive the ballot and be able to return it on time. 

Several thousand ballots, potentially near 10,000 ballots, could come in during the extended acceptance period after Election Day. 

Part of the settlement is to extend the acceptance of vote-by-mail ballots from three days to nine days after the election, as long as the ballots have evidence of being voted before 5 p.m. Nov. 3. 

Osteen disagreed with these changes but did not block them. 

“In all candor, this court cannot conceive of a more problematic conflict with the provisions of Chapter 163 of the North Carolina General Statutes than the procedures implemented by the Revised 2020-19 memo and the Consent Order,” Osteen wrote. 

But he declined to intervene in the case because it was so close to an election, despite writing that the plaintiffs could likely win. He invoked the Purcell principle, which is a precedent sent by the U.S. Supreme Court that says federal courts should avoid changing election laws while the election is ongoing. 

It is a pragmatic doctrine “to avoid what’s going on right now, which is everyone using federal courts to affect the election in a couple of weeks,” Su said. 

Berger, one of the Republican plaintiffs, said in a press release that he disagrees with Osteen’s use of the Purcell principal here. Burger said he thinks the federal court does have the authority to act. 

“It’s an expansion, I think, of federal court jurisdiction that normally conservatives would be totally against,” Su said. “But they’re not now. No one’s that principled with elections on the line.” 

Consequences for voters 

In the middle of the legal wrangling, the state board put a freeze on all absentee-by-mail ballots requiring a cure. Voters could neither fix the problems nor cancel their ballots, which would allow them to cast a new ballot. 

Larry Kline’s ballot has been in limbo since Sept. 18.

“All they said was that there was something amiss with the ballot, but nothing was specified as to what it was the problem was,” Kline said. 

That is standard practice for curing any deficiency on the ballot. Voters are sent a form letter that there was some error and a form to sign and return, usually by email, that they really did vote that ballot. 

Kline filled out the cure document and returned it on Oct. 1, according to his records. He keeps a folder titled “Election 2020.” 

Kline is 91 years old and has voted in every election since Harry Truman’s improbable win in 1948, he said. His voting record in North Carolina goes back to 1986. 

But records show that the Durham County Board of Elections, where Kline is registered to vote, has not taken action on Kline’s cure, which is in line with the state board’s guidance. 

Voters can check the status of their ballots using BallotTrax or by calling their county board of elections.

Now, with Osteen’s orders in place, the state board will need to decide what to do next amid a shifting legal landscape.

The national Republican plaintiffs have appealed Osteen’s order in Wise and asked for a stay. The state Republican plaintiffs said they will fight this all the way to the U.S. Supreme Court.

The Republican plaintiffs said they will appeal Osteen’s order. Meanwhile, the state court judge who approved the settlement in the Alliance v. NCSBE case has not made his ruling final and is holding another hearing on Friday. 

That judge, Bryan Collins of Wake County Superior Court, could reverse his previous order and block the settlement, or part of it, after taking Osteen’s ruling into consideration. 

It’s not clear what would happen if the state court accepts the settlement on grounds unrelated to Osteen’s order, which would allow a cure for witness signatures, even while Osteen’s injunction is in place that still blocks the state board from curing those ballots, Su said.

“That’s pretty big,” Su said, because it would represent a federal court weighing in on a state court process.

County boards statewide will meet again to process absentee-by-mail ballots on Tuesday. At that point, there will only be two weeks until Election Day.

If Kline has to spoil his ballot and request another, he’s right on the edge of the turnaround time for the county to process his request, send him the ballot in the mail, then for him to vote the ballot and return it in time. 

If this court process drags out much longer, it will be too late to vote by mail, at least not without significant hazard for Kline’s ballot not arriving on time for the first election in 72 years. 

Kline said he cannot vote in person because he can no longer drive or stand in line. In theory, if someone else drove him to the polls, he could vote curbside

The real threat to the election

It’s a common adage that democracy only works when the people believe the elections are legitimate. 

Su referenced the damage that the U.S. Supreme Court’s decision in the 2000 presidential race had on American faith in the country’s electoral system.

Now, if the elections are close enough for these legal wranglings to determine the outcome in North Carolina, let alone the presidential race, it could disillusion voter trust in the system. 

“You know, on both sides, I think there would be grounds to see that this whole thing was, you know, and I hate to use the word, rigged,” Su said. 

Every side is at fault, Su said, because once one side acts, the other will react. He credits Osteen for walking a fine line, not giving either side everything asked for and remaining relatively restrained on the issues he weighs in on, even while he clearly expressed his frustration with the N.C. State Board of Elections’ behavior. 

But the threat to the perception of legitimacy in the election is not limited to the actual ballots affected by the litigation. 

Since the state board announced its proposed rule changes as part of the state court settlement, Berger and Moore have released over a dozen press releases and held a press conference in which they imply the new rules could open the election to fraud. 

In court, lawyers for Berger and Moore argued that counting absentee-by-mail ballots without a witness signature, even if cured, or counting by-mail ballots that arrive later than three days after the election, would dilute the vote of voters who did not need a cure or had their ballots in sooner.

The lawyer for the Trump reelection campaign alleged that the state board put these cure rules in place for partisan advantage. The votes themselves, the Republicans argued, essentially amount to fraud. 

Osteen reinterpreted the argument, saying counting these votes would not be fraud in and of itself, but could open the election to fraudulent votes. Osteen limited this particular complaint to counting absentee-by-mail ballots with missing witness signatures and indicated that this fraud, if ever executed, would be done on an individual basis. That is in sharp contrast to the allegations brought by the Republican plaintiffs, without evidence, of the potential for systematic fraud. 

“If we’re going to be talking about like, you know, losing faith, right, in the legitimacy of our electoral system, you know, a lot of it is going to be this litigation,” Su said. 

It is not a good theory of democracy, Su said, for an election to be decided by lawyers fighting over obscure and confusing laws and norms.

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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