Judge William Osteen Jr. of U.S. District Court for the Middle District of North Carolina issued two orders on the evening of October 14 in the ongoing dispute. While they provided different results, both emphasize the illegal actions of NC State Board of Elections (SBE) Executive Director Karen Brinson Bell.
Democracy NC v. NC State Board of Elections
In his final ruling in Democracy NC vs NC Board of Elections Osteen ordered the SBE to not to implement a cure process for absentee ballots missing signatures from witnesses or people who helped a voter maker their ballot (page 41):
… the North Carolina State Board of Elections is hereby ENJOINED and PROHIBITED from implementing a Due Process or ‘cure procedure’ as described in Revised Memo 2020-19 which authorizes acceptance of an absentee ballot without a witness or assistant signature…
The cure procedure Osteen slapped down involved sending a certification to the address of a voter whose ballot did not have a witness or assistant signature. That procedure violates North Carolina election law, which requires witnesses and assistants to sign a voter’s absentee ballot container envelope. Instead of the illegal cure process sought by Bell, county boards of elections will issue new ballots to people who submitted ballots without those signatures.
Osteen noted that Bell’s attempt to use his August 4 ruling as a rationale to gut the absentee ballot witness requirement not only contradicted election law but also her own testimony (page 28):
In addition to denying its representations about this court’s August Order, the SBE alsoclaims it did not frustrate the August Order because its revisions do not actually eliminate the witness requirement. Yet Revised Memo 2020-19 clearly subverts this court’s findings in its August Order by effectively eliminating the contemporaneous witness requirement. (Revised Memo (Doc.143-1) at 2.) According to Ms. Karen Brinson Bell, Executive Director of the SBE, the Revised Memo allowed “an envelope with a missing witness signature [to] be cured by the voter attesting that he or she voted their ballot and is the voter.”(Declaration of Karen Brinson Bell (“Bell Decl.”) (Doc. 151-3) ¶9.) Ms. Bell’s declaration contradicts her testimony before this court, in which she stated unequivocally that a ballot with a missing witness signature could not be cured, but instead had to be spoiled [emphasis added]
Moore v. Circosta and Wise v. NC State Board of Elections
Osteen also issued an order on a pair of cases brought on by complaints against Bell’s collusive settlement with Democratic attorney Marc Elias that sought, among other things to extend the period to accept absentee ballots sent from the United States from three days after the election to nine days and to allow ballots to be dropped off at a board of elections without being logged in, both in violation of North Carolina election law.
In his order, Osteen noted how Bell had attempted to expand her powers to alter or ignore election law through administrative fiat, a move that was unanimously rejected by the North Carolina Rules Review Commission (RCC). Osteen then noted how Bell ignored that order in violation of the RCC ruling and North Carolina law (pages 83 and 84):
Despite the Rules Review Commission’s rejection of Bell’s proposed changes, on July 17, 2020, Bell issued an Emergency Order…
This directly contradicted the Rules Commission’s finding that such a change was outside SBE’s authority. In keeping with Bell’s actions, the State failed to note in argument before this court that Bell’s proposal had been rejected explicitly because SBE lacked statutory authority to exercise its emergency powers. [emphasis by underlining in original]
This established that Bell was acting outside her authority when she sought to ignore election law.
Having done that, Osteen established that Bell and the SBE would likely be found to have violated the Equal Protection Clause of the Fourteenth Amendment by arbitrarily altering witness requirement (page 57) and the deadline to for absentee ballots (page 59) but not by changing the postmark requirement or functionally allowing ballot drop boxes.
Faced with an SBE executive director who had clearly overstepped her statutory authority and violations of the Fourteenth Amendment, the result of this case would seem as clear as in Democracy NC v. NC State Board of Elections. Alas, no (page 90):
This court believes the unequal treatment of voters and the resulting Equal Protection violations as found herein should be enjoined. Nevertheless, under Purcell and recent Supreme Court orders relating to Purcell, this court is of the opinion that it is required to find that injunctive relief should be denied at this late date, even in the face of what appear to be clear violations. [emphasis underlined in original]
The “Purcell” here is from Purcell v. Gonzalez, a 2006 U.S. Supreme Court case. I explained last week that the “Purcell principle” was established to prevent last-minute court decisions from wreaking havoc on election administration. In this case, Osteen inverted Purcell to uphold the SBE’s settlement with Elias despite its violations of the Fourteenth Amendment’s Equal Protection Clause.
The SBE will proceed with actions allowed by Osteen next week.
In light of this development, there are a couple of things that should happen:
- The SBE should not be permitted to seek any more collusive settlements. North Carolina Department of Justice lawyers listed six other possible settlements in a memo to the SBE, including four with Elias (pages 5 and 6). With Purcell now being applied to North Carolina election law cases, it is well past the time to be making any more settlements.
- The General Assembly needs to look at tightening election laws next year to give the SBE less ability to circumvent those laws.
Furthermore, Karen Brinson Bell should be fired after the 2020 election is certified. While she apparently has solid administrative ability, as noted in former election board member David Black’s resignation letter, her continued attempts to usurp authority not granted to her position by statute or regulation, and her willingness to subvert election laws, means that she cannot be trusted to continue in a position of administrative authority.
