- The NC State Board of Elections dealt with a difficulty in how to conduct a recount with a practical solution
- However, that solution is contrary to North Carolina election law
- The action speaks to the larger issue of the election board’s willingness to bypass or ignore election laws
Are government agencies allowed to elevate administrative procedures above laws passed by the legislature when those laws make their jobs inconvenient?
The North Carolina State Board of Elections (SBE) put that question to the test.
North Carolina law (163-182.7A.(a)) states that a candidate that loses after the initial count of ballots and a machine recount may “demand a second recount on a hand-to-eye basis in a sample of precincts.” As I noted on December 3, Cheri Beasley made just such a request in the race for NC Supreme Court Chief Justice.
That same section of the law also dictates how that sample is to be taken:
That sample shall be all the ballots in three percent (3%) of the precincts casting ballots in each county in the jurisdiction of the office, rounded up to the next whole number of precincts. For the purpose of that calculation, each one-stop (early) voting site shall be considered to be a precinct. The precincts to be recounted by a hand-to-eye count shall be chosen at random within each county.
The statute is clear: ballots are to be counted in the sample on the basis of precinct or one-stop voting site.
So, I was intrigued when I read that Graham County was to count, not ballots from a precinct or early voting site, but its absentee-by-mail ballots (see Figure 1).
Figure 1: Section of 2020 statewide hand-to-eye recount results in the NC Supreme Court chief justice race showing that Graham County hand-counted absentee-by-mail ballots. The columns are county and precinct; type of precinct; the original machine-count result, hand-eye recount result; and the difference between machine-count to hand-eye recount. Source: NC State Board of Elections
That response was confusing to me since the law was clear that only precincts and early voting sites were to be considered in the random selection process (with mail ballots presumably counted based on their precinct). So I looked back at the State Board of Elections’ (SBE) media announcement, “Hand-to-Eye Recount Begins Next Week in NC Supreme Court Contest.” Again, there was mention of precincts and early voting sites, but no mention of absentee-by-mail ballots as a separate category.
Figure 2: Relevant Section of media release announcing how partial hand-eye recount in NC State Supreme Court chief justice would be conducted. Source: NC State Board of Elections
So, we have a contradiction, both between SBE practice and election law and between SBE practice and its own statement about what its practice is.
In hopes of resolving these contradictions, I reached out to SBE Public Information Director Patrick Gannon via email. Here is his December 7 reply:
[Absentee ballots counted as precincts] were included based on necessity. If we didn’t include them, then those ballots would not have a chance of being re-counted — since they wouldn’t belong to a one-stop site or an Election Day precinct — which would go against the purpose of the random selection. It would also mean that certain ballots could never be counted in a hand-eye recount, and would be therefore be a perfect target for a malicious attack.
We do not want counties sorting ballots back to the respective precincts until canvass is officially over. Having recounts with a different precinct /administrative precinct than canvass makes audits far more difficult — and would make it impossible to compare the machine count for a particular precinct (where absentee by mail ballots were not sorted) to a hand-eye recount where absentee by mail ballots were sorted back into their respective precincts. Some of the variance would be because of the sorting.
The SBE’s reply was practical and reasonable. It is better for absentee ballots to be included in the partial recount somehow.
But the way they did it also violates state election law.
Gannon and I went another round of emails on this, with more reasonable-sounding statements coming from the SBE such as:
[not counting absentee-by-mail ballots] would also leave absentee by mail ballots, which made up close to 20% of the ballots cast this year, particularly vulnerable as a target for tampering.
But the email also included this: “Until the post-election precinct sort can be conducted, the State Board has long considered the absentee-by-mail ballots to be an administrative precinct for the purposes of results reporting.”
So, can the SBE’s consideration of absentee-by-mail ballots to be “an administrative precinct” make them so under state law for the purpose of fulfilling 163-182.7A.(a)? The good news is that you do not have to guess. It is clear under state law (GS 163-128) that a precinct is a physical entity in which voters reside, that you can draw on a map, and which hosts a voting location. A county’s collection of absentee-by-mail ballots do not fit any of those criteria.
Are we to believe, then, that the SBE’s “administrative precinct” takes precedence over precincts as determined by state law? Surely not.
This is the same cavalier attitude towards elections laws that led to SBE Executive Director Karen Brinson Bell to unsuccessfully seek to grant herself greater emergency powers to contravene election laws and to enter into a collusive settlement to alter election laws in violation of the 14th Amendment of the U.S. Constitution.
What to do from here
By not following election law as set by the General Assembly, the SBE had made itself vulnerable to a lawsuit from whichever campaign did not prevail in the partial hand-eye recount. The good news on that front is that the results in Graham County, the only county counting mail ballots, showed no change (see figure 1) which would have made the Beasley campaign less likely to be able to show that it was harmed by the SBE’s action (Beasley conceded on December 12).
However, we cannot simply allow agencies to ignore laws that they find inconvenient. The General Assembly must be more diligent in exercising its oversight responsibilities.
For its part, rather than ignore laws it finds inconvenient, the SBE should ask the General Assembly to change the law on partial recounts to make the process easier to implement. The General Assembly passed many of the changes that Bell requested earlier this year in order to make the fall election run smoothly, despite concerns about the coronavirus.
So, what should the SBE have told county boards to do in the meantime to comply with the law?
One possibility would have been to have county election officials sort absentee-by-mail ballots by precinct but keep them apart from the election day ballots, run a machine count for both sets of ballots for each precinct, and then do a hand-eye recount for both sets to see if there was variation between the machine counts and the hand-eye counts.
Yes, it would have been inconvenient and taken longer. Yes, it would have meant more work for county election officials (although it would have saved some work on the back side because they must eventually sort mail ballots by precinct anyhow).
But, more importantly, doing it that way would have been in compliance with the laws passed by the legislators elected by the people of North Carolina.
(In case you were wondering, the title of this article was appropriated from Pompey the Great.)
