Update 11:10 a.m.: Senior Associate Justice Paul Newby filed an election protest with the New Hanover County Board of Elections around 9 p.m. Thursday. Newby trails incumbent Chief Justice Cheri Beasley by 4,999 votes.
NEW HANOVER COUNTY — At the county’s board of elections meeting, less than 24 hours before the canvass, New Hanover County Republican Party chairman Will Knecht walked a stack of 300-400 absentee by-mail envelopes to the county election director’s desk, flagging them for review.
The ballot envelopes all had a range of irregularities, Knecht said. One had a smiley face for a witness signature. A couple lacked a witness signature. Fifteen had signatures in the wrong place and 133 weren’t postmarked, according to Knecht.
In all, the New Hanover County GOP found “questions of real substance” in the few hundred ballots, culled from a review of 10,000 absentee by-mail ballots out of the nearly 25,000 processed.
Upon glancing through the stack, elections director Rae Hunter-Havens identified several that were fine — that the board was right to approve.
“Some of these in this pile should have been accepted and they were,” she said.
Regardless of whether any of the mail-in ballots shouldn’t have been counted, the county elections board cannot reverse its approval of the ballots.
The GOP’s issue highlights a gap in the administrative process and the unprecedented stress elections officials have been in this year, amid historic voter turnout and new pandemic procedures. Elections officials were bound by two statutory goals that didn’t perfectly line up: Administer the election on time; fulfill public records requests “as promptly as possible.”
Sometime in September, the GOP filed a public records request to review absentee by-mail ballots. By law, they aren’t allowed to review the ballots themselves, but can inspect the envelopes that contain them, which include the required witness and voter signature lines.
The New Hanover County Board of Elections honored the request Tuesday, Nov. 10. The problem? The deadline to challenge any of the already approved votes had passed on Election Day. Members of the public aren’t permitted to inspect live ballots, leaving review open to only approved ballots. This limits the ability to challenge them to the window of time between their approval and before Election Day.
Hunter-Havens said her staff accommodated the GOP’s request as quickly as they could.
“It was not feasible for us to do it before Tuesday,” she said.
Because the envelopes display confidential, voter-identifying information, staff had to manually prepare the materials before they could be inspected.
“It’d be one thing if we could just open up the envelopes. But, physically, my team had to go through almost 25,000 ballots and put binder clips on all of them,” she said.
Knecht’s team spent 100 hours combined reviewing the ballots they could get to on Tuesday, he said. It took six elections officials, working overtime, to accommodate their review. Leading up to the canvass, Hunter-Havens said many elections officials had been working between 75 and 100 hours a week.
“This staff is overworked. They’re exhausted,” Knecht said. “In those [ballots] that have been accepted, there is going to be user error — they’re working 100 hours a week, they’re not going to do everything perfect. Nobody is.”
Knecht said he was also disappointed that his request to review the 1,787 absentee by-mail ballots up for approval could not be honored prior to the votes being counted.
“I’m not suggesting fraud, I’m not suggesting anything nefarious,” he said. “We believe we have the right to review and then ask for further review based on what we see. And if we’re wrong, O.K., fine. If we’re right, 100 votes — it’s material.”
In the event some of the flagged ballots shouldn’t have been accepted, the most the board can do is note the mistake in an upcoming audit. There is no mechanism to nullify the votes outside of an election protest. Challengers must prove there is substantial evidence of voting irregularities and whether the irregularities would impact a contest’s outcome, according to N.C. State Board of Elections guidance.
The deadline to file an election protest on the grounds Knecht and his team presented would appear to fall on Tuesday at 5 p.m. Knecht said the GOP isn’t actively pursuing an election protest, but with guidance from legal counsel, is leaving the option open.
Knecht’s counterpart, New Hanover County Democratic Party chairman Richard Poole, did not see the GOP’s concerns the same way.
“Every election is going to have a certain small error rate,” Poole said. “It might be a tenth of a percent. That’s why we do recounts. That’s inevitable.”
The ballots in question were already approved by a bipartisan board, according to Poole. “It’s designed to provide a balance and diversity of views,” he said of the election process. “And it’s also designed to give us timely results. So, no, I don’t have a problem with that.”
Republican board member Russ Bryan said the GOP had a legitimate right and concern to meaningfully review the absentee by-mail ballots prior to the voter challenge deadline. “That’s a real failing of our system,” he said. “Somehow, someway, any group, whatever group, needs to have access to these things in a more timely manner than we’ve been able to do this year.”
He said he hoped to get Hunter-Havens more resources to be able to manage both tasks — permitting ballot observers and administering the election — in a timely manner next time.
“I do think it’s a tragedy,” Bryan said. “Again, I don’t care who’s asking. If they’re legally allowed to, and they asked in September, and we didn’t get to them until Nov. 10, and now we’re in a situation where we’re still looking at next week for them to review these — and I’m not blaming you, but how do we set this up so it doesn’t happen again?”
Though he said he didn’t support the GOP’s effort to invalidate ballots, Democratic board member Derrick Miller said he would support looking at new processes in the future.
“Under the unusual strains of this election, that is unparalleled in 2020, unprecedented, that we strained, the staff strained, to keep up with events as they rolled out. I can understand that,” Miller said. “Maybe moving forward, we can revisit how we inspect mail-in ballots. Maybe one way to answer these concerns is to change our procedures in the future.”
In a motion that failed along partisan lines 2-3, Republican board member Thomas Washburn asked to formally note the few hundred ballots had been flagged in the board’s forthcoming audit. Democratic Chairman Thomas Pollard said the concern was already noted and would be recorded in the meeting minutes.
In error or obstructing democracy?
Given the volume of absentee by-mail ballots processed in a short time frame, Hunter-Havens acknowledged there would be a small margin of error, while still commending her staff for an excellent job.
“Obviously we don’t want any mistakes but there may be some minor, data entry or administrative error where perhaps they may have missed these,” she said. “But the key is: Is it outcome-determinative?”
Should the result from the latest tranche of ballots approved on Thursday hold, it may or may not be. After processing 2,200 remaining provisional and absentee by-mail ballots, the difference in the Harper Peterson-Michael Lee race dropped by 200 votes, from 1,468 to 1,268, with Lee holding onto his lead. In the Jonathan Barfield-Skip Watkins race for the last seat on the New Hanover County Board of Commissioners, Barfield’s lead increased by 221, from a 477-vote difference to a 698-vote separation.
Elli Klein, Women Organizing for Women member and Democratic activist, told the board the GOP’s move was an attempt to obstruct democracy.
Knecht said he didn’t see the problem with weeding out improperly cast ballots.
“Why is it bad to want legal votes to count?” he asked. “And illegal votes not to count? What’s wrong with that? How is that voter suppression?”
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