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Late Wednesday night, Forsyth County completed its recount in the race for the chief justice of the N.C. Supreme Court.
It was the last county to cross the finish line in a process that was supposed to be completed a week earlier.
Off camera in the livestream of the county’s election warehouse, someone said, “Bye, guys. See you at the second recount.”
Much to the chagrin of election officials — and reporters — around the state, that joke will come true, as the race for the chief justice of the state Supreme Court remains undecided, possibly for weeks to come.
Chief Justice Cheri Beasley, a Democrat whose term ends on Dec. 31, currently trails her opponent, Republican Paul Newby, by 401 votes, or eight-thousandths of a percent out of the almost 5.4 million votes cast in the race. Even if Beasley loses her seat, Democrats retain 4-3 control of the state Supreme Court.
The chief justice position holds power through a variety of duties in the state’s court system. The role is responsible for appointing other judicial leaders, including commission members, three-judge panels for certain cases and the director and assistant director of the Administrative Office of the Courts. The chief justice also designates the chief judge of the Court of Appeals.
Beasley used emergency directives to organize court operations during the pandemic, including suspending jury trials for most of the year. If Newby holds on to his lead, he will likely enact a different vision of court operations.
But in a race this close, both candidates are using postelection tools to make sure the vote counts are correct, down to the last ballot.
It’s so close
For any statewide election where the difference in vote totals is fewer than 10,000, a full recount must be done if a candidate requests it, which Beasley did on Nov. 17.
That recount, completed on voting machines, cut into Newby’s lead by 15 votes, according to the N.C. State Board of Elections report of the recount results. The narrow shift is not nearly enough to flip the results of the election.
Either candidate has 24 hours to request a second recount, which will be done by separate rules. Beasley’s campaign had indicated it would do just that and issued a request for the second recount Thursday morning.
The second recount will be done by hand in a random selection of 3% of precincts in each county. Per state law, if the difference between the second recount and the first recount could, when projected out across the entire state, potentially alter the outcome of the race, a full hand-eye recount will be needed for every ballot cast in the state.
All recounts are done at the expense of the county, and a hand-eye recount would take much longer and therefore cost more to complete.
Large counties used several high-speed scanners to count their votes and several full days to count all of their ballots. Forsyth and Guilford counties both kept counting into this week when the state set a deadline of Nov. 25.
Forsyth’s elections staff was busy counting votes Wednesday and did not respond to questions from Carolina Public Press about why the process took so long.
Guilford’s elections director, Charlie Collicutt, said the delay was due to the huge number of paper ballots the county had not dealt with before (it is using a new voting system), the need to bring in more high-speed ballot scanners and an initial unfamiliarity with using those scanners.
In a second recount, where machines are not used, delays will most likely be brought on by staff shortages or a lack of space in which to fit people to count the ballots.
There could also be hiccups like temporarily misplacing ballots, which happened in Halifax County. The elections staff there was short 98 ballots from an early voting site, which were later found stored with some “Authorization to Vote” forms. Halifax officials finished recounting those ballots Thursday.
The idea behind a hand-eye recount is that when humans look at the ballots, they will notice votes that are improperly marked and therefore the machines did not catch. Voters who circled the ovals rather than filled them in, for example, gave a clear indication of a vote for a candidate that would not be caught by a voting machine.
Hand-eye recounts do find these kinds of discrepancies. Every county is required to do a hand-eye audit of randomly selected ballots before certifying the election results. Those counties then reported their results to the State Board of Elections.
In the hand-eye audit of the presidential race of 292,158 ballots, there were 42 total discrepancies. Most were chalked up to errors by the people counting the votes. Only 17 of those had to do with voter intent that was not picked up by the machine.
Depending on which number from the audits is used when extrapolating out to the entire race, that could account for more votes than Newby currently leads by. But that’s only if the rate of difference in counting votes by hand versus by machine is consistent in the presidential and chief justice races.
That potential difference extrapolated from the audits represents a total difference in votes counted, not a net difference in votes for each candidate.
In order for a second recount to actually favor Beasley, the recount would need to find a net gain of almost 500 votes for her over Newby, an unlikely scenario.
Ballot protests and appeals continue
The candidates have another kind of check on the election’s outcomes in the form of protests, which are filed when candidates think that votes were improperly counted — or not counted at all.
Both Newby and Beasley filed election protests. Newby’s first round of protests was filed in Democratic counties and aimed to delegitimize many by-mail ballots that largely favored his opponent. These protests were uniformly dismissed by county boards of elections. Newby appealed to the State Board of Elections for review.
Newby also filed election protests over a number of voters who died before Election Day. In North Carolina, those votes are invalidated by law.
Beasley filed extensive protests in 85 counties, according to records from the State Board of Elections. The records show 43 counties have rejected the protests, which Beasley has appealed. The remaining counties will hear Beasley’s protests — and a few are still left to hear Newby’s second protest — through next week.
When the counties have completed their hearings, the State Board of Elections will take up the protest appeals en masse. The date for appeal hearings has not yet been set.
If either campaign is still not satisfied, it could appeal the state board’s ruling to state court, further prolonging the uncertainty in the race’s outcome. Neither campaign would speak on the record about legal strategies, though it is likely that, should Beasley’s protests fail to put her ahead in the race, Newby’s campaign would drop its appeals.
There are four other races, all for local positions, that were not certified alongside the chief justice race, though their recounts and appeals have by now been settled and simply await approval by the State Board of Elections.