After an initial machine recount did not change the 23-vote gap between Republican NC Senate President Pro Tempore Phil Berger and Rockingham County Sheriff Sam Page, Berger is requesting a second recount.
Berger and Page are vying for the Republican nomination for the State Senate District 26 seat, which covers Rockingham County and parts of Guilford County. It’s a Republican area, so whoever moves onto the general election will likely best the Democratic candidate.
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At the end of the election night, the pair were separated by two votes, with Page leading. By the time military and overseas ballots were counted, and provisional ballots were considered, that lead widened.
The second recount request is the latest in what may be a protracted battle by Berger to flip the initial election results.
The first recount
Under North Carolina statute, second-place candidates may request a recount if the difference between the number of votes they received and the first-placer received is less than 1% of the total number of ballots cast in the contest.
That was the case in the legislative primary, so Berger requested an initial recount shortly after the county canvasses confirmed the 23-vote gap.
Berger asked the State Board of Elections to recount a small subset of ballots cast — 220 ballots that were either overvotes or undervotes.
Overvotes are cases in which a voter selects more candidates than allowed on their ballot. Under North Carolina statute, if a voting machine rejects a ballot due to an overvote, but a human counter can tell what the voter’s choice was intended to be, they are permitted to count the ballot.
Undervotes happen when a voter chooses fewer options for a contest than allowed. In this case, an undervote would occur when a voting machine didn’t detect a choice in the Berger-Page contest. It is very possible that some voters decided not to vote in the legislative race, but Berger argued that machines may not have picked up some ballot markings.
The State Board declined to act on Berger’s special request. Instead, they allowed the normal process of a full machine recount to play out.
Republican State Board member Angela Hawkins said election law only contemplates overvotes, not undervotes.
Both counties conducted a full machine recount Thursday. Both candidates lost a vote in the Guilford County recount, while nothing changed in the Rockingham County recount.
Request to count again
Berger then had a day to request a second recount, under statute. He did so Friday afternoon.
Typically, the second recount is a sample hand-to-eye recount. That involves picking 3% of the precincts in each county, rounded up, and manually recounting each ballot cast in the Senate District 26 race at those voting sites.
If enough votes change in that sample that, if the change were extrapolated to the full number of ballots cast, it would flip the outcome of the race, then the second-place candidate is entitled to a full hand-to-eye recount.
However, Berger again asked for something a little different. In his request, he asked for a full hand-to-eye recount — or a hand-to-eye recount of the 220 undervotes and overvotes — instead of a sample hand-to-eye recount.
He argued that the State Board has the discretion to provide that.
“In such a close election, we must be certain that every lawful vote is counted,” the request stated. “The machines did not count 222 ballots that were labeled as overvotes or undervotes. Those uncounted ballots, which could include discernible votes for candidates, are nearly ten times the margin in this contest. If the machines have misread just a fraction of those ballots, then the current results of the election could be incorrect.”
Further, Berger said ballots labeled as undervotes by voting machines were treated differently by election staff in Guilford and Rockingham counties during the initial machine recount.
In Guilford County, two ballots initially counted by machines were deemed unreadable the second time around, and were not counted. In Rockingham County, staff determined voter intent, darkened marks on undervote ballots, and counted them.
Berger’s request argues that treating ballots differently across county lines violates the Equal Protection Clause of the Constitution, and “undermines confidence in the recount totals.” That’s another reason he is asking for a full hand-to-eye recount, according to his request.
Any second recount should happen within two business days of the request, which would be Tuesday, March 24, in this case.
Page’s team weighed in on Berger’s request Friday afternoon. He called for the State Board to reject Berger’s request for a full hand-to-eye recount, and instead proceed with a sample recount.
“Phil Berger is once again asking for special treatment and trying to change the rules after he lost,” said Patrick Sebastian, Page post-election advisor, in a statement. “North Carolina law is clear — and it applies to everyone. Senator Berger doesn’t get to rewrite it because he doesn’t like the outcome.”
Once the second recount is complete, the county election boards will still have to consider Berger’s various election protests. That won’t be complete until April, and then, Berger will have an opportunity to take the issue to court if he is not satisfied with the outcome.
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