The NC State Board of Elections (SBE) is seeking to settle a lawsuit over absentee ballot procedures. In doing so, they are providing SBE Executive Director Karen Brinson Bell with a way to impose through court decree what she has been trying to accomplish for months through other means. The result is a collusive agreement that may result in yet another election lawsuit.
To understand why that is so, some background knowledge is required.
A pattern of trying to weaken election integrity at the State Board of Elections
Last spring, Brinson Bell sought to get the General Assembly to approve several changes that would have undermined the integrity of our elections, such as ending the witness requirement for absentee ballots and gutting the protections from ballot harvesting or manipulation for those in assisted living facilities (the General Assembly rejected most of her requests but granted some, such as reducing the witness requirement from two to one). She also sought to have the state pay postage for absentee ballot container envelopes, which she also did not get.
Brinson Bell then sought to gain the power to unilaterally alter, among other things, voter registration deadlines, early voting hours, and the deadline to accept absentee ballots through the bureaucratic rule-making process. But the North Carolina Rules Review Commission, which is tasked with making sure that proposed bureaucratic changes are in keeping with state law, unanimously and emphatically rejected the attempted power grab (The Laurinburg Exchange):
“There is a gross misunderstanding of what the RRC purview is … or it is a devious stunt by the Board of Elections,” said Commissioner Tommy Tucker. “I’m concerned this is an end-run around the public, the General Assembly, and the courts.”
Undeterred, Brinson Bell did what she could to weaken protections against absentee ballot fraud through administrative fiat, issuing a memo requiring county boards of elections to accept illegally transmitted ballots and not verify that the signature on the absentee ballot envelope was that of the voter. In response to that memo, I wrote “It is clear is that North Carolina has an SBE executive director who will only protect the security of absentee ballots to the minimum extent required by law.”
I was wrong. It has gone well past that, and the appointed five members of the State Board of Elections allowed it to happen.
Collusion
Into this situation came attorney Marc Elias. Elias is probably best known in North Carolina for the mental contortions that allowed him to fight against absentee ballot harvesting in 2019 and then turn around and fight to make ballot harvesting easier just one year later.
Elias filed a lawsuit in August seeking to, among other things:
- Extend the deadline to accept ballots postmarked by election day
- Weaken the witness requirement
- Functionally prevent signature verification by requiring the SBE to set up a statewide system in only a few weeks before absentee ballots were to be sent out
- Place prepaid postage on absentee ballot container envelopes
- Expand the early voting period
As noted above, Brinson Bell had sought similar changes through requests to the General Assembly to change laws, her failed attempt to expand her powers through bureaucratic rule-making, and her orders to county boards of elections.
That is why it is incredible that the state board put her in charge of negotiating a settlement with Elias (WRAL, emphasis added):
The state board voted unanimously last week to settle this and several other outstanding lawsuits on state election rules, delegating the details to the Executive Director Karen Brinson Bell and legal staff. That decision was made after a closed-session discussion with all five members present.
So, the state board, in its wisdom, put in charge of negotiating a settlement with Elias a person who has publicly sought almost all the same goals as he does, with the natural result that Elias got almost everything he was seeking.
To make matters worse, the state board has given Brinson Bell the authority to settle other lawsuits.
The next step? Probably yet another lawsuit
So what happens next?
One thing that will almost certainly happen is that Senate President Pro Tempore Phil Berger and House Speaker Tim Moore, who are already intervenor-defendants in the lawsuit, will seek to have the judge in the case refuse to agree to the proposed consent order. Failing that, they will likely file their own lawsuit against the settlement.
Berger has already come out against the proposed consent order in a media release:
The Board of Elections, which is controlled by Gov. Cooper and acting through its lawyer, Democratic Attorney General Josh Stein, went around the legislature and agreed with Democratic plaintiffs to undo basic election laws passed to prevent a repeat of actual absentee ballot fraud.
One way or another, this is unlikely to simply end with the deal struck between Elias and Brinson Bell.
