- The North Carolina State Board of Elections would limit its review to no more than 1,675 ballots challenged in the recent state Supreme Court election, according to a court filing Tuesday night.
- The filing responded to US Chief District Judge Richard Myers' Saturday order in the election dispute.
- The figure of 1,675 ballots represents less than one-third of the 5,700 challenged ballots identified in earlier court documents.
- The elections board would limit its review of overseas ballots with no photo identification to those in Guilford County. County elections boards would seek evidence confirming or denying that "never residents" have never lived in North Carolina.
The North Carolina State Board of Elections plans to review no more than 1,675 ballots cast in last fall’s state Supreme Court election, according to a court filing Tuesday night. That number is less than one-third of the total number of challenged ballots indicated in earlier court documents.
Another piece of the court filing suggests that ballots from voters identified as “never residents” would count in the final tally if election officials find evidence that the voters have lived in North Carolina.
The smaller number decreases the likelihood that ballot challenges would change the election’s winner. Appointed incumbent Democrat Allison Riggs leads Republican Jefferson Griffin by 734 votes out of more than 5.5 million ballots cast in the November election.
Griffin had asked North Carolina courts to consider throwing out as many as 65,000 ballots from the fall election. A state Supreme Court order Friday already took more than 60,000 challenged ballots off the table. The unanimous court rejected Griffin’s challenges involving voters with incomplete voter registration records.
Still in question after that decision were 5,500 ballots from overseas and military voters in a limited number of larger, Democratic-leaning urban counties and 267 ballots cast by voters challenged as “never residents” who have not lived in North Carolina.
Those numbers appeared in a Jan. 6 order from US Chief District Judge Richard Myers. The federal judge summarized Griffin’s ballot challenges three months ago when deciding to send the election dispute back to state court.
The state elections board’s latest numbers responded to an April 12 order from Myers’ court. Myers called on elections officials to proceed with a ballot “curing” process spelled out in an April 11 state Supreme Court decision. Myers ordered the elections board not to certify an election winner. He also wrote that by Tuesday the board “shall provide notice to the court of the scope of its remedial efforts, including the number of potentially affected voters and the counties in which those voters cast ballots.”
The state board would review “potentially up to 1,409 voters in Guilford County” among the targeted overseas voters, according to the court filing responding to Myers’ order. “As indicated in the State Board’s initial decision, only the Guilford County protest was complete by the deadline to file an election protest under state law,” the board’s lawyers wrote.
The other 4,100 overseas ballots mentioned in later court filings would not face any additional review, under the elections board’s plan. They would count in the final election tally.
As for “never residents,” the state board listed 266 challenged ballots, compared to the 267 Myers listed in January. Challenged ballots are identified in 53 counties, including 39 in Wake County, 37 in Orange County, 27 in Mecklenburg County, 23 in Durham County, and 15 each in Forsyth and Guilford counties.
These voters “possibly” checked a box on a federal voter form indicating “I am a U.S. citizen living outside the country, I have never lived in the United States,” the elections board indicated.
Not all 266 challenged ballots would be removed from the state Supreme Court election tally.
“Recent news reports and a sample internal review of the voter history of these voters indicates that some have resided in the state previously,” the court filing explained. “It is suspected that these voters were either incorrectly identified as never residents or inadvertently indicated that they never lived in the United States.”
County elections boards would review the targeted voters’ records.
“Next, the county boards will review the voter’s registration record and voter history
record to ensure that the voter in question does not have a record of registering previously or
voting previously under a claim of residency in the county,” elections board lawyers explained. “A prior registration form would show that the voter attested, under penalty of perjury, to an in-county residence in the past.”
“A record of voting in-person or using the absentee voting procedures … would similarly show that the challenged voter attested, under penalty of perjury, to having resided within the county during a prior election,” the court filing continued. “In either case, such records would demonstrate that these voters do not fit within the category of ‘never residents’ under the order of the Court of Appeals. If such records exist, voters thus will be removed from the list of affected voters.”
While 1,675 represents the upper limit for ballots subject to challenges, other factors could reduce the total number, the elections board indicated. “Certain of the voters referenced in Plaintiff’s protests appear to have been listed several times,” according to the court filing. “The figures below may therefore count the same voter multiple times. In addition, certain voters appear to be included within both categories of protests.”
The seven-page document spells out how the state and county elections boards would approach the process of identifying challenged ballots and determining whether they would count in the final tally. The elections board indicated that it is monitoring ongoing legal action.
“The State Board is aware of pending appeals concerning this Court’s decision to require the State Board to implement the North Carolina state courts’ orders while refraining from certifying any result of the election at issue in this case,” according to the court filing. “Various parties argue that further remedial steps to execute the state courts’ orders may, in and of themselves, implicate federal constitutional questions.”
“Until this Court or another court with jurisdiction directs the State Board to change the vote count after having identified the ballots as described above, the State Board will direct the county boards not to ascertain or discount the votes of any such ballots, and to not reveal to anyone how any such ballots were voted,” elections board lawyers concluded.
Four different appeals to the 4th US Circuit Court of Appeals challenge Myers’ ruling allowing the state courts’ process for addressing the election dispute to move forward. Myers refused Tuesday to issue a stay of his recent orders.
Riggs, activist groups working with Democratic operative Marc Elias’ law firm, and plaintiffs working with League of Women Voters of North Carolina all filed emergency motions with Myers.
“All three motions request a stay of the portion of Text Orders entered by this court on April 12 and April 14 that direct the North Carolina State Board of Elections ‘to proceed in accordance with the North Carolina Court of Appeals opinion … as modified by the North Carolina Supreme Court,’” Myers wrote Tuesday. “That portion of the court’s Text Orders, though framed in mandatory terms, did nothing more than decline to interfere (on an expedited basis and without the benefit of briefing) with the initiation of a remedial process ordered by the North Carolina Court of Appeals and North Carolina Supreme Court.”
“Thus, to the extent the parties seek a stay of the court’s inaction, that is, its decision not to enjoin the Board of Elections from complying with the North Carolina Court of Appeals’ order, that request is denied as improper,” Myers wrote. “What the parties actually seek is reconsideration of the court’s denial of their requests for temporary restraining orders. The correct avenue for that form of relief is a motion for reconsideration or direct appeal, if one is available.”
“This court now clarifies that the only mandatory portion of its April 12 and April 14 Text Orders is the language prohibiting the Board of Elections from certifying the results of election pending further order of this court,” Myers added. “This court has made no order altering or modifying the cure process, which is now proceeding pursuant to the North Carolina Court of Appeals’ order, as modified by the North Carolina Supreme Court.”
Myers rejected the requests for mandatory injunctions in the case.
“The court does not find that initiation of a cure process ordered by the North Carolina Court of Appeals and North Carolina Supreme Court, on its own, constitutes a form of irreparable harm because that process cannot result in ‘massive ex post disenfranchisement,’ unless the Board of Elections takes further action at the conclusion of that process,” Myers wrote. “And the court has expressly prohibited the Board of Elections from certifying the results of the election until the federal constitutional issues in these consolidated matters have been resolved.”
Riggs, the Elias plaintiffs, the LWVNC plaintiffs, and the North Carolina Democratic Party all have asked the 4th US Circuit to block Myers’ ruling.
The state Supreme Court agreed unanimously Friday to reject Griffin’s challenge of more than 60,000 ballots cast by people who appeared to have incomplete voter registration records.
The court split, 4-2, on two other sets of ballot challenges. Justices upheld the state Appeals Court’s decision to throw out votes from voters who never have lived in North Carolina. The Supreme Court also endorsed the Appeals Court’s plan to give overseas voters time to provide evidence of photo identification to have their ballots counted.
The Appeals Court had ordered elections officials to give overseas voters 15 business days to complete that task. The state Supreme Court extended that window to 30 calendar days.
“Defendant North Carolina State Board of Elections is ORDERED to proceed in accordance with the North Carolina Court of Appeals opinion, as modified by the North Carolina Supreme Court in its April 11 Order, but SHALL NOT certify the results of the election, pending further order of this court,” Myers wrote Sarurday.
The judge also set new deadlines in the case “to facilitate prompt resolution of this matter.”
Each party can file an opening brief by April 21 with final briefs due April 28. Myers indicated he “intends to rule on the papers as soon as practicable,” rather than holding oral arguments.
The state elections board initially rejected all of Griffin’s ballot challenges. A Wake County Superior Court judge upheld the board’s decision in a series of Feb. 7 orders.
Riggs continues to serve on the state Supreme Court during the legal battle. Griffin continues to serve on the Appeals Court.