Partisan rancor is threatening to undermine North Carolina’s fall election when the state was otherwise seemingly well prepared.
This round of infighting starts with a lawsuit filed by a prominent law firm, Perkins Coie, that often represents Democratic election interests around the country. The lawsuit named both the N.C. State Board of Elections and the General Assembly as defendants.
On Sept. 22, the NCSBE announced rules changes and a proposed legal settlement that would affect vote-by-mail rules in the state. The legal settlement was a surprise to the state legislative defendants in the case and was to be argued in court the following week.
In response, state Republican Sens. Phil Berger and Ralph Hise issued press releases, disagreeing with the NCSBE’s actions and accusing the agency of back-dealing with the plaintiffs.
The two Republicans on the NCSBE, David Black and Ken Raymond, also resigned late Wednesday night, claiming that they were misled by state attorneys when they voted in favor of the NCSBE’s action in the lawsuit.
The NCSBE issued a press release stating that agency attorneys “provide (counsel) thorough legal memos to the board” and answer any questions that come up. The board’s chairman, Damon Circosta, said in a statement that Black’s and Raymond’s “claims are not true.”
“In a nearly three-hour meeting, and in extensive briefings prior to the meeting, all board members were provided with the merits — both pro and con — of settling these lawsuits,” Circosta wrote.
Given that the three Democratic board members all voted in favor of the NCSBE’s actions, dissenting votes by the two Republican members would not have changed the outcome.
The NCSBE went into a closed session to discuss several lawsuits at the last NCSBE meeting, so unless the board votes to make notes or recordings of the meeting public, it is not possible to confirm what information was given to the board members and therefore confirm or deny the legal complaints of the resigning board members.
This recent round of disagreements comes over seemingly small corners of the election process: over how absentee-by-mail ballots can be cured of mistakes, the deadline for accepting ballots mailed before the Election Day deadline and NCSBE guidance to counties about how many Sunday hours are required for early-voting sites.
Recent polling shows North Carolina is a swing state that will play a key role in electing the next president. The history of close votes in the state has both major parties fighting over every possible vote and fighting over which ballots should be counted.
Through its three methods of voting and recent bipartisan legislation, North Carolina was well positioned to run a relatively smooth election and to have the vast majority of votes counted by election night. The partisan fighting around the corners of the election, though, threatens to cast doubt on the legitimacy of the whole thing and to delay final decisions on vote counts due to extensive litigation. Both political parties and affiliated groups have brought, and have threatened to bring, lawsuits over how the election is run.
The NCSBE, which is responsible for certifying the state’s election results and guiding county boards of elections, will now need to seat two more Republican members, though it can technically do its business with just the three Democratic members. State law says that the state’s Republican Party will recommend members that the governor will then appoint to the board.
Resignations and potential changes
The NCSBE announced Black’s and Raymond’s resignations at 9:57 p.m. Wednesday, Sept. 23.
The meeting in question where the NCSBE considered the litigation options was Sept. 15, with board members voting unanimously to settle the case.
Circosta told Carolina Public Press that the vote was held in closed session.
Whether that process was done legally is open to interpretation, according to Brooks Fuller, director of the N.C. Open Government Coalition at Elon University.
“Although such action may be legal under one interpretation of the open meetings law, it is not the only reasonable interpretation,” Brooks said.
CPP is continuing to investigate. The legality of the vote will have implications for the proposed settlement with the court, now complicated further by the resignations of Black and Raymond.
The NCSBE announced the settlement in the lawsuit on Tuesday. Sens. Berger and Hise issued their press releases over the next two days, then Black and Raymond resigned.
Wake County Superior Court Judge Bryan Collins will hear arguments over the settlement in a 9:30 a.m. hearing Oct. 2.
If approved, the settlement would extend the deadline for county boards of election to receive by-mail ballots sent before 5 p.m. on Election Day. The current deadline is three days after the election, and the settlement would extend the deadline to nine days.
The state already accepts overseas and military ballots to this later deadline.
The settlement would change how county boards cure ballots that are submitted with incomplete witness requirements. The NCSBE already issued these updated rules in a memo to county boards of election.
Black said in his resignation letter that he did not understand the process for how the witness requirement would be cured when he voted for the settlement.
In August 2019, Black showed a similar pattern. He voted for an election rule to change voting system requirements and, after consternation by voting machine vendors and fellow Republicans, said he had not understood the motion and reversed his stance.
Part of the agreement in this case is that the plaintiffs would drop additional changes they sought, including “the elimination of the absentee witness requirement, a requirement that boards of elections pay for return postage and the lifting of prohibitions on who can assist with and deliver absentee request forms,” according to an NCSBE press release.
This did not satisfy Senate Republicans, who will argue in court against the settlement. If the settlement passes, the legislative defendants will appeal the case, according to Pat Ryan, a spokesman for Berger’s office.
Questions over how deficiencies in ballots should be cured “are not questions for the State Board of Elections to be answering,” Ryan said.
“The State Board of Elections’ job is to follow the law as written by the General Assembly, and in this case passed nearly unanimously and signed into law by the governor,” Ryan said.
Part of the NCSBE’s responsibility, Ryan recognized, is to give guidance to county boards of election on how to follow the law. The line between guiding counties and changing the nature of state law seems to be at question.