For almost three weeks, counties were not able to do anything with absentee-by-mail ballots that came in with an error on the return envelope. The ballots just sat in locked boxes, holding voters in limbo.
But court decisions Monday and Tuesday from both state and federal appellate courts gave county boards of election the freedom to act.
All of the 10,000 voters who had errors on their absentee-by-mail ballots are likely to hear from their county boards of election by the end of this week. The boards will either accept the ballots, ask voters to sign a letter of certification as a “cure” for the error or tell voters that they will have to vote a new ballot.
When Derek Bowens, Durham County’s elections director, told his board on Tuesday that they could start processing the ballots with errors again, they asked if the courts would change their minds on appeal.
Bowens shrugged and said he wouldn’t dare to speculate. Board members laughed.
They could only work off the guidance from the statewide board of elections, and the state told them to go ahead, Bowens said.
And so, Durham County elections officials sorted the ballots that had been waiting for a decision. They found 235 ballots they rejected because the ballot envelopes did not have a witness signature. In North Carolina, absentee-by-mail voters need to have a witness present when voting their ballot, and the witness signature is the proof that they were there.
In addition, 254 ballots had errors the county could ultimately accept, though voters need to submit a form attesting that the ballot was really theirs and that the mistake was an error and not an indication of fraud.
The statewide data is not precise enough to know how many of the 10,000 ballots previously held in limbo will be rejected and how many are errors voters can fix.
In the last week, an additional 1,565 ballots were cured and accepted while an additional 3,460 ballots were rejected because they lacked witness signatures, and those voters will have to cast new ballots, either by mail or in person.
When an absentee-by-mail ballot is rejected, the county is supposed to mail a new ballot to the voter within 24 hours, along with a letter explaining why the ballot was rejected. County officials are also supposed to reach out by email or phone, if the voter provided that information.
The changing rules and subsequent lawsuits have left many voters confused, said Tomas Lopez, who heads the voting rights group Democracy NC and works to help voters figure out how the system works.
The lawsuits over the absentee-by-mail rules were appealed to the highest state and federal supreme courts. The absence of the process issues in the parties’ filings make it unlikely the courts will again change the rules on which errors can be fixed, but the judiciary could act in unexpected ways.
“We’re at a stage, especially being within a couple of weeks of Election Day now, where we’ve got to work with the information we have,” Lopez said.
“We have to make sure that voters are able to cast ballots by whatever means they’re most comfortable doing so.”
Lopez stressed that voters also have the opportunity to vote in person and encouraged voters to use early in-person voting, which runs through Oct. 31. The lines are likely to be shorter than on Election Day, he said, which is helpful both to voters and election officials.
Voting in person is also the best way — from the time you walk in until the time you walk out — to be 100% sure your vote was cast, Lopez said.
Voting by mail involves far more steps, with more room for error and time running out to get the ballot cast. All by-mail ballots must be returned in person or have a postmark on the return envelope by 5 p.m. Election Day, Nov. 3.
As the current rules stand, ballots must arrive at county boards of election by Nov. 12, but court decisions could move that back to the state’s original date of Nov. 6.
No matter what the arrival deadline is, state Elections Director Karen Brinson Bell said her advice remains the same.
“The sooner the better is the way we’re handling voting this year because of coronavirus,” she said.
That goes for returning an absentee-by-mail ballot or voting early. So far, returns for both voting methods are breaking records.
As of Friday morning, 724,900 by-mail ballots have been accepted, more than three times the total by-mail ballots cast in 2016, with more still on the way. Brinson Bell expects the final count could near a million by-mail ballots.
Voters have cast 1,970,270 ballots during early voting. The state is on track to break 3 million votes cast over the weekend, which would mean more than 40% of all registered voters in North Carolina will have voted with a week left in the election.
In 2016, 69% of registered voters cast ballots in the general election.
It’s impossible to say now what percentage of the electorate will ultimately participate in this election, though it is clear that never before have so many people made up their minds and voted this early in the process.
Chris Cooper, a political science professor at Western Carolina University, cautions political observers from trying to read the tea leaves from these early turnout numbers.
Between absentee-by-mail and early in-person voting, 41.7% of the ballots have been cast by registered Democratic voters, 28.8% by registered unaffiliated and 29% by registered Republican voters. The remaining half percent of votes cast have been by Constitution, Green and Libertarian party voters.
But that’s not necessarily a hint about what is going to happen on Election Day, Cooper said.
“One of the things 2020 has taught us is that the mode of balloting has become politicized, first of all, and obviously is almost a partisan cue at this point,” Cooper said.
Democratic voters have always dominated early in-person voting. This year, for the first time, Democratic voters are also using vote-by-mail more heavily than registered Republicans.
But that could mean that Election Day will favor Republican turnout, Cooper said.
Early results in North Carolina typically favor Democrats. All early votes and all absentee-by-mail votes received by the day before Election Day are reported as soon as the polls close, which could make it seem Democratic candidates have a huge lead.
That’s what it looked like in 2016, but Election Day voting moved the state toward a win for President Donald Trump, while then-Democratic candidate for governor, Roy Cooper, held his lead by the slimmest of margins.
“I think people should be cautious because we don’t know what the Election Day turnout will look like,” Chris Cooper, the political science professor, said.
If any of the races are incredibly close, within at most a single percentage point difference, by-mail ballots that arrive after Election Day could prove decisive.
Every county will count those votes and report them to the state on Nov. 13. Barring election challenges, major lawsuits, evidence of fraud or another catastrophe, the results of the election will be known. However, for races that are not especially close, the results will be apparent on election night.
The state is scheduled to certify the results on Nov. 24.