The State Board of Elections voted Tuesday to instruct county elections boards to continue counting ballots to determine winners in as many races as possible. But the order includes flagging and forwarding ballots to the state board if they appear to be illegal and were cast in close statewide elections in which the outcome might hang in the balance.

Also on Tuesday, Gov. Pat McCrory and Republican state auditor candidate Chuck Stuber filed a request with the state board for a mandatory recount allowed by law because both second-place finishers are within 10,000 votes of the winners.

“With serious concerns of potential voter fraud emerging across the state, it is becoming more apparent that a thorough recount is one way the people of North Carolina can have confidence in the results, process, and system,” McCrory wrote in his request letter. The recount would be conducted after all counties finish their vote canvasses.

Attorneys for McCrory and Democratic challenger Roy Cooper argued before the state board in a three-hour meeting about election law mandates and the fine details of competing statutes that prescribe how to handle different types of vote disputes.

At issue were legal differences between a challenge, which has an ironclad filing deadline and involves individual votes, and a protest — a broader category usually involving a group of voters that requires a greater amount of evidence, and must have the potential to affect the outcome of an election.

In the end, the state board issued an order to the counties setting out the distinctions between an election protest and an election challenge. Both the McCrory and Cooper teams said they were satisfied.

“We’re delighted with the decision of the board. We think it’s made it clear that you’ve got to follow the law in challenging specific voters, and election protests are something a little bit different, and require more proof,” said Kevin Hamilton, a lawyer from Washington, D.C., representing Cooper and the North Carolina Democratic Party.

The ruling “allows the counties to go forward, and finish this canvass, and declare this result, which we all know, Roy Cooper is going to be our next governor-elect,” Hamilton told Carolina Journal.

Hamilton said the number of allegedly improper votes identified thus far in the process “is small. It’s like 200 to 300 votes at most.”

Cooper leads McCrory by 6,187 votes, according to vote tallies on the State Board of Elections website, “so it’s mathematically impossible to flip the result,” especially when considering the disputed votes would be split between the two candidates, Hamilton said.

Roger Knight, an attorney representing McCrory, told Carolina Journal the board’s “unanimous vote was certainly fair to everyone,” but he said he was reserving judgment on the guidelines being drafted by the state board’s general counsel Josh Lawson until he reads them.

Knight also rejects Hamilton’s contention that Cooper has won.

“There’s 75,500-plus ballots that are uncounted as of this morning — some 42,000 absentee ballots and 33,000 provisional ballots,” Knight said. “That doesn’t include any of the protests. And then there’s the 90,000 [same-day registration] ballots that were called into question with the lawsuit I am informed was filed this morning.”

Josh Howard, former chairman of the State Board of Elections, filed the federal lawsuit in U.S. District Court for the Eastern District of North Carolina in behalf of the Civitas Institute.

The suit claims same-day registration ballots cast during the General Election will not be fully verified until nine days after the vote count is certified. State law requires that registrations and residences be verified for a vote to be counted. The suit asks that the court require the state board to withhold certification of votes until the same-day registrations can be verified.

In arguing to allow election protests to go forward based on suspicion of dead voters, voting by felons, and double voting, Knight told the state board it has an obligation “to ensure election without taint, fraud, corruption or irregularities,” and has broad oversight authority to make that happen.

“Those who ask you to limit your authority … are asking you to abdicate your responsibility,” Knight said.

He cited a state Court of Appeals ruling that said the authority of the state board to investigate is not dependent on filing a timely protest, and the board may act on its own “even in absence of any protest.”

A 1984 case in Clay County is “most like what the situation we have today” regarding absentee ballots, Knight said.

The state Court of Appeals noted that no challenge or protest was filed in that case, “yet the State Board of Elections took the case up on its own inquiry and its own motion,” he said. That case has been cited in seven other cases, and “it’s never been overturned, and it’s never been superseded.”

Hamilton said under the law governing election challenges, county boards of elections cannot rescind votes cast unless the challenge was made before a deadline set in state law that protects a voter’s due process rights. That time has now passed, so McCrory’s request should be denied, he said.

Ignoring the statutory deadline would allow if not encourage future challenges, complicating and delaying determinations of election winners, Hamilton said.

McCrory campaign lawyer John Branch said county boards should be allowed to complete the protest investigations to determine if invalid votes were cast. Dismissing the protests before that occurs defeats the purpose of the process, and undermines the faith of voters in the system, he said.

“Their argument essentially is due process is no process” to root out voter fraud, Branch said of Cooper’s legal team.

“Enforcing the law as written …. is a far cry from undermining the confidence of the public,” Hamilton said. Filing dozens of election protests in violation of the statutory framework, targeting African-American voters as potentially ineligible felon voters, is “what undermines public confidence.”

Allison Riggs, senior voting rights attorney for the Southern Coalition of Social Justice in Durham, told the state board if it uses various lists compiled by election protesters to cross-check for ineligible voters that would constitute “systematic list maintenance” that violates the National Voting Rights Act at this stage of the election process.

“What is prohibited list maintenance is anything that is not individualized, and rigorously [handled] on a one-by one basis,” Riggs said. Lists of dead voters, felons, or those who voted in two states are “rife with error,” she alleged, and “would be prohibited by the act.”