News: CJ Exclusives

State elections board awaits Durham report, McCrory recount offer

Board says it has not received formal offer from McCrory to withdraw recount request; hearing on Durham appeal likely by end of week

CJ graphic
CJ graphic

For the second consecutive Sunday, the North Carolina State Board of Elections held an emergency meeting by conference call to take up challenges to the handling of the Nov. 8 election at the county level. Challenges and protests will delay the state’s certification of the election, which had been scheduled for Tuesday.

The hearing focused on Durham County, where 94,000 ballots allegedly were mishandled by voting machines on election night. The re-election campaign of Gov. Pat McCrory said in a press release if the state board recounts those ballots, it might drop a requested statewide recount, but the board said it needs a formal request to move forward on that offer.

The most recent count on the state board’s website shows incumbent McCrory trailing Democratic Attorney General Roy Cooper in the governor’s race by roughly 7,400 votes, within the 10,000-ballot threshold that would allow the trailing candidate to request a recount. The governor and GOP state auditor candidate Chuck Stuber (who trails incumbent Auditor Beth Wood by about 4,300 votes) have made those requests.

This week, the board discussed a request by Republican attorney Thomas Stark for an expedited hearing on his appeal of the Nov. 18 decision by the Durham County Board of Elections rejecting his protest of the election. Stark alleged that the county mishandled 94,000 ballots that were not counted initially by voting machines but tabulated and submitted later in the evening. At the Durham hearing, witnesses from the voting machine manufacturer testified that the machines were outdated and could not handle the amount of ballots submitted, and a technical expert from the state board testified that when the ballots were run after election night, the tallies for governor matched the ones taken Nov. 8. The board rejected Stark’s protest by a 3-0 vote.

State board attorney Josh Lawson told board members that, in a telephone conversation, Stark told him he filed his request for an expedited hearing because the Durham County board had not submitted an official order reporting its findings or provided other documentation for review. Stark asked the state board to assume full jurisdiction over the Durham protest, which could include a series of other challenges filed by John Posthill, a McCrory campaign volunteer, who claimed a number of invalid ballots were cast in Durham.

Board Chairman Grant Whitney said he wanted to move forward as quickly as possible but was hesitant to take any action until the board had all the relevant documents. Whitney, a Republican, and board member Joshua Malcolm, a Democrat, expressed reluctance to take full jurisdiction over the Durham County protest, because, Malcolm said, the state board would have to begin the investigation anew, including calls for witnesses, documents, responses, and orders. They suggested limiting the investigation to the disputed ballots handled by the voting machines.

During the meeting Katelyn Love, another board attorney, contacted Durham County Attorney Lowell Siler to ask if the county had issued an order and when a transcript of the proceedings and other evidence or documents would be available. Love said Siler confirmed that there was no order, but it probably would be completed Monday or Tuesday. He also gave no timetable for delivering transcripts or other evidence.

Stark filed his request with the state board a day before the McCrory campaign issued a press release saying the governor would withdraw his request for a recount of the election results if the state board held a recount of the contested ballots and the results were the same as on election night. At Sunday’s hearing, Lawson said Stark was not representing McCrory in the recount request.

Malcolm said the 94,000 ballots were “ripe for consideration,” and that a “hand-to-eye” recount of the disputed ballots by the state board would end any other request by McCrory for a recount.

Lawson noted that a press release did not amount to a formal request and that he was not aware of any official contact from the McCrory Committee with a conditional offer to withdraw.

The board informally agreed to “prod” Durham to turn over a record of its hearing within 48 hours, if possible, and if so, the state board probably would hold a formal hearing 48 hours after that — sometime Thursday afternoon.

The board then went into closed session and after returning voted unanimously to hire outside attorneys from the Brooks Pierce law firm in Raleigh to help its defense of a federal lawsuit. The lawsuit, filed by the Civiitas Institute, challenges the methods used to verify addresses of voters who use same-day registration at early-voting sites. The initial hearing for that lawsuit is scheduled Friday at 11 a.m. at the federal courthouse in Raleigh.