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The race for the chief justice of the N.C. Supreme Court is the closest statewide election North Carolina has ever seen, according to Democratic candidate Cheri Beasley’s campaign, which is using that narrow margin to justify postelection protests and recounts.
Beasley is trailing her opponent, Republican Paul Newby, by 401 votes out of almost 5.4 million after a statewide recount of every ballot.
Both campaigns are diving deep into election law to review every single ballot cast in the election. In Beasley’s case, it’s to find enough ballots to count to close the gap between the candidates. For Newby, it’s to prevent those ballots from being counted or to remove ballots they claim were improperly accepted in order to preserve his lead.
The campaigns are not alleging fraud or mismanagement of the election, according to the lawyers arguing for each campaign in front of county boards of elections.
In a Durham County Board of Elections hearing on Friday, Newby’s lawyer called the election “incredibly successful,” while Beasley’s lawyer said the campaign’s protests were not calling the “vigilance or integrity” of the board into question, even if the campaign claimed to find some mistakes.
The margin is so slim that even a few successful complaints in each county could flip the election results.
So far, though, that does not seem likely.
Neither of the candidates’ protests nor the recounts have significantly altered the official results that were published back on Nov. 16, when counties finished certifying their vote totals.
The first recount of all statewide votes cut Newby’s lead down by 15 votes. Beasley’s election protests have convinced counties to reconsider 14 votes, according to Tim Wigginton, press secretary for the N.C. Republican Party. Neither the N.C. State Board of Elections nor the Beasley campaign provided their own counts of successful challenges in time for publication.
Beasley’s campaign asked for a second recount, this time to be done on a small sample of ballots and completed by hand. For this process to help Beasley, the recounts will have to find relatively more votes for her campaign than for Newby’s. This typically happens when voters mismark their ballots in ways that the machines could not read the votes, but their intent was clear.
Only a handful of counties reported their by-hand recount results by Tuesday night, and Beasley was not making up any ground. The recounts are not expected to be finished until Dec. 16, when Gates County scheduled its recount meeting.
County hearings for the election protests should also be finished next week, with the latest scheduled on Dec. 14 in Burke County. Then, the State Board of Elections will take up the protests en masse during a Dec. 18 meeting.
If Newby holds onto his lead, the state Supreme Court will have four Democrats and three Republicans. Seats on the court will next be up for election in 2022, when two will be on the ballot.
A Newby victory will make it “easier for Republicans to flip the Supreme Court during the 2022 election,” Wigginton wrote in an email to Carolina Public Press.
Significance of the chief justice seat
The chief justice seat is a prize in and of itself. The winner will oversee the state’s court system.
During Beasley’s tenure as chief justice, she appointed a new director of the Administrative Office of the Courts. The chief justice, along with the director, sets the rules of the state court system, an authority that is especially important during the COVID-19 pandemic, according to Theodore Shaw, distinguished professor of law and director of the Center for Civil Rights at the University of North Carolina.
The chief justice determines who has to show up in person for civil and criminal hearings, when trials with juries can be held and even when marriage ceremonies can be scheduled, which are all among the issues Beasley has addressed in her orders this year.
“Another thing that the chief justice does is determine what kinds of judicial policies and practices in general are going to be studied and reviewed,” Shaw said.
The chief justice “may use the position to determine what the judiciary takes on in terms of reform,” he said.
This is done in part through the judicial committees that the chief justice organizes, including the reform-oriented Justice Reinvestment Council. Newby has widely advertised that he is a “tough-on-crime” conservative.
Shaw expects that a conservative chief justice will appoint commission members that “tilt toward conservatism,” he said. That could be the same for the three-judge panels that the chief justice selects when there are court cases about wrongful convictions, redistricting cases or unconstitutional acts by the General Assembly.
The chief justice has sole discretion over these appointments.
Bob Orr, a former member of the N.C. Supreme Court from 1995 to 2004, said he was sometimes consulted for his expertise or knowledge of the courts in a certain area, but chief justices make their own decisions about how to organize committees and state court operations.
“It’s not a system run by the court,” he said. “It’s a system run by the chief justice.”
The protests
Both campaigns are using similar rhetoric to justify their election protests and to contextualize the significance of their findings.
Lawyers for each stress that they are not calling the overall administration of the election into question. They simply want to make sure that all ballots are counted and, in Newby’s case, that some potentially illegal ballots are not.
Each campaign made the same protests across several counties. Beasley’s protests, made in 85 counties, according to State Board of Elections records, alleged that there were hundreds of by-mail and provisional ballots that were improperly rejected. County boards of elections have either dismissed the protests outright or found limited numbers of ballots that should have been counted.
Brunswick County, for example, voted to approve one provisional ballot where the voter’s name was organized differently on the provisional form than in the registration records. Durham County approved three ballots.
This is not a high enough rate to overturn the results as they currently stand.
Newby has filed two rounds of protests in a handful of Democratic-leaning counties. The first were universally dismissed and protested the guidance by the State Board of Elections over by-mail ballot rules, which changed repeatedly during the election after the board agreed to settle a lawsuit.
His campaign’s second round of protests is focused on voters who cast absentee ballots but died before Election Day. Per state law, those ballots should be removed from the overall count. North Carolina recently announced it will move death certificates to an electronic system, but that has not happened yet, and it can take months for counties to get those death reports.
In Durham, the Newby campaign lawyers did not hold the county board of elections accountable for the deceased voters who had their ballots counted, simply because the board had not received those notifications yet.
Protests from both campaigns are being appealed to the state board, which will review them at its Dec. 18 meeting.
The recounts
By state law, if a statewide election is within 10,000 votes, either candidate can request a mandatory recount. Beasley’s campaign did just that. Then, because the totals changed slightly, either party could have requested another recount, this one by hand. Beasley’s campaign did just that.
The “hand-eye” recount takes considerably more time than a machine recount. By state law, this recount is done first on a random selection of 3% of precincts. For the purposes of the recount, early voting sites are considered a precinct.
Guilford County got hit hard in the random selection of precincts, drawing three early voting sites, and therefore will have to count the most ballots by hand of any county in the state. Charlie Collicutt, Guilford’s election director, said he expects his county will be able to finish the recount by the end of the week.
By state law, once the 3% recount is complete, the state board will examine any change in results. If there is a net change in results in Beasley’s favor, the board will then extrapolate that change to the entire state. If the change is large enough to potentially flip the results of the race, the state will then be forced to do a hand-eye recount of every ballot cast in the November election.
Beasley’s campaign said it requested the hand-eye recount because people can find mismarked ballots where the voter intent is clear but machines missed those votes when scanning ballots.
There is no reason to think that this type of mismarked ballot would favor Beasley’s campaign. Early results show that voters for either candidate are about equally likely to have votes found in their favor.
Regardless of the ultimate result of the election, the race will be decided by only a handful of votes. The margin will be decided by thousandths of a percent, out of the record-setting 5.4 million ballots cast in the election.
“Those of us who believe in the importance of civic responsibility and the vote often are the ones who say every vote counts,” Shaw said. “This contest for chief justice … proves that that’s not just cliché.”
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