The NC State Board of Elections (SBE) has gone through chaos throughout Gov Roy Cooper’s administration. Now through deception and failed legal shenanigans, that chaos could now impact an ongoing election.
I have previously written about how witness requirement for absentee ballots was gutted (by allowing an unwitnessed ballot to be “cured” without any witnessing of the ballot) as part of a collusive settlement negotiated between SBE Executive Director Karen Brinson Bell and Democratic attorney Marc Elias on September 22. That settlement was part of Bell’s ongoing attempt to undermine or eliminate election laws passed by the NC General Assembly.
A media announcement of the change made it clear that the new cure process was part of the September 22 agreement:
The State Board of Elections on Tuesday announced changes to the absentee voting process to make it easier for a voter to fix problems with their absentee ballot.
The changes were included in a joint motion asking the court to approve a settlement with plaintiffs in a lawsuit filed by the North Carolina Alliance for Retired Americans. The lawsuit challenged various absentee voting processes in North Carolina.
In the joint motion filed Tuesday in Wake County Superior Court, the parties agree that the witness requirement for absentee voters will remain in place. The witness must fill out required fields on the ballot return envelope, including their name, address and signature.
The State Board will allow a voter whose witness does not fill out required fields on the envelope to correct that mistake through an affidavit of the voter. Numbered Memo 2020-19, updated and reissued Tuesday, describes this process.
That cure process in that memo is in direct violation of North Carolina election law (GS163-231(a)), which requires a witness for absentee ballots and gives no cure process that gets around that requirement other than sending a new ballot. The problem is that the settlement agreement has not yet been approved by a judge and so cannot be used to contravene state law.
In response, the Trump campaign sued the SBE and sent a letter to county boards of elections and sent a letter to county boards of elections members urging them to ignore the memo, claiming that it was illegal (WRAL):
“The NC Republican party advises you not to follow the procedures,” the Trump campaign letter reads. “The Democrats are trying to undermine the election process through backroom shenanigans.”
On this point the Trump campaign is right and the SBE is wrong; Bell cannot unilaterally contravene North Carolina’s election law based on an agreement that has not been approved by a judge (it is scheduled to be reviewed by Judge Bryan Collins on Friday, October 2). The SBE had to reply to assert that they had the authority to issue the instructions in the memo. However, they did not claim the authority to do so from the September 22 agreement but from an earlier injunction.
The response was a September 28 email from SBE General Counsel Katelyn Love, a copy of which I obtained from the SBE and which reads, in part :
As a reminder, Numbered Memo 2020-19 was revised on September 22, 2020, and has been in effect as of that date. The memo provides for a revised cure process that allows the voter to cure a variety of deficiencies with their absentee ballot, including missing witness signature. We provided reminders about this change being in place now as part of the Huddle training last week and this morning during the Morning Kickoff. The authority for this memo comes from the preliminary injunction issued by the federal court in the Democracy NC v. State Board case on August 4, 2020. The injunction required the State Board institute a cure process for ballot envelopes with deficiencies that would otherwise be rejected. Earlier today, we filed a Notice of Filing to inform the court that the State Board has issued Numbered Memo 2020-19 consistent with the court’s injunction. [Emphasis added]
Was the September 22 memo “consistent with the court’s injunction” as Love claimed? No, it was not.
William Osteen, the judge who authored the August 4 injunction, was not amused with the SBE using his injunction as a rationale for gutting the absentee ballot witness requirement and (page 7):
Notwithstanding the fact this court upheld the one-witness requirement and limited the due process remedy to those defects which were subject to remediation, it now appears that on September 22, 2020, the North Carolina State Board of Elections has eliminated the one-witness requirement under the guise of compliance with this court’s order. [emphasis added]
And, just to be clear, Osteen added on page 10:
This court does not find Memo 2020-19 “consistent with the Order entered by this Court on August 4, 2020,” (Doc. 143 at 1), and, to the degree this court’s order was used as a basis to eliminate the one-witness requirement, this court finds such an interpretation unacceptable.
In the same document, he ordered a “status conference, in person, at the earliest possible date and time available” so the SBE can explain themselves.
In light of these developments, Bell could forget about the deal with Elias and simply follow the law unless told to do otherwise by a court. Instead, Bell issued a memo ordering county boards of elections to “take no action” on unwitnessed absentee ballots until she can find a way out of the mess she helped create.
Unfortunately, it is voters who will have to deal with the repercussions of that mess.