CHARLOTTE, N.C. (WBTV) - The fate of thousands of absentee ballots in North Carolina remains unclear as lawyers and political parties continue a court fight over the regulations regarding which ballots should count and which should be thrown out.
The uncertainty began after a closed-session vote by the N.C. State Board of Election on September 15, where the board’s five members unanimously approved terms of a potential settlement to numerous lawsuits challenging various state voting laws.
Among the changes that the board agreed to in that vote were changes to rules regarding the process by which voters can correct problems with their absentee ballots, including fixing missing witness signatures and other information.
State law requires one person witness a voter cast their absentee ballot. The witness must sign the ballot and provide other information.
Although the settlement agreement between the NCSBE and various Democratic-aligned groups was approved by a state court judge, it was put on hold by a federal judge less than 24 hours later, amidst a challenge by Republican legislative leaders.
There were, in essence, three different sets of regulations for absentee ballots in North Carolina from Friday to Saturday.
As a result, elections officials in North Carolina are currently instructing county boards of elections to not do anything with absentee ballots that come in with problems.
“County boards that receive an executed absentee container-return envelope with a deficiency shall take no action as to that envelope,” the NCSBE said in a memo to counties on Sunday.
The memo goes further, instructing county elections officials to not cancel a voter’s ballot even if requested to do so.
“County boards that receive deficient envelopes shall not check them into SEIMS. We recommend that, if a voter calls your office and wants to know about the status of their deficient ballot, your staff state: ‘We have received your ballot and there is an issue. Currently the cure process is being considered by the courts. We will contact you soon with more information.’ If the ballot has a deficiency, do not issue a cure certification or spoil the ballot even upon a voter’s request,” the memo said.
That continued uncertainty comes as more than 350,000 have already voted by absentee ballot.
Dr. Michael Bitzer, a political science professor at Catawba College who tracks absentee voting, said the continued lack of certainty as voting continues is detrimental to voters.
“You never want to go into a situation where people are already voting or have the potential to cast ballots and are unsure of what will happen to their ballot when they return it,” Bitzer said.
Neither NCSBE Chairman Damon Circosta nor a spokesman for the NCSBE responded to email inquiries sent Monday asking why the board has opted to do nothing with defective absentee ballots.
Rules changed via memo from staff
County boards of elections have been inundated with memos from state elections officials in recent weeks, each outlining changes in policy and, in some cases, modifications to state law.
For example, the NCSBE sent out a memo instructing counties to give voters a chance to fix problems on their ballot related to the voter’s own information or signature on August 21.
The memo said voters could fix problems related to their own information but explicitly made clear voters could not be given the opportunity to fix problems with information for the person who witnessed their ballot.
But that changed nearly a month later on September 22 when the NCSBE sent a revised version of the memo – sent out under the same memo number – that said boards could allow voters to sign a form if there were problems with the witness information on their absentee ballot.
The revised memo said the change was being made to comply with a federal judge’s ruling from August. A judge subsequently said the change was not in line with his order.
It is not clear where the NCSBE staff’s authority to issue the revised guidelines on September 22.
Closed session minutes from September 15 show NCSBE members discussed the ability of voters to correct problems with missing witness information but that suggestion was never voted on by the board as it related to the judge’s ruling in August.
The closed session minutes also show at least one Democratic member, longtime board member Stella Anderson, questioned the move to allow voters to fix a problem related to their witness.
“Secretary Anderson indicated her concern that cure affidavit or memo could be exploited by the same person who sent the ballot. No more assurance then we did from the get-go. Said she was trying to balance vote with criticism and challenges that we might get as an agency – that we will get criticism,” the minutes show.
The minutes reflect that Circosta, the board chair, and Karen Brinson Bell, the NCSBE Executive Director, were in favor of allow voters to fix problems with witness signatures.
According to the minutes, the board never voted on revising the August 21 memo to update the guidance. But the revision happened anyways.
Neither Circosta nor an NCSBE spokesman responded to at least four separate emails asking under what authority the August 21 memo was revised to change the rules.
Attorney General defends late changes
A top lawyer from the N.C. Department of Justice, General Counsel Swain Wood, was at the September 15 closed session meeting to advise board members to settle the myriad lawsuits.
Wood was at the meeting on behalf of Attorney General Josh Stein, whose office is defending the NCSBE.
In an interview with WBTV, Stein said his office recommended the board reach a settlement to have a say in how the legal challenges were resolved.
“There was a hearing coming up and the lawyers were concerned that the relief ordered by the court could have been much broader than what the plaintiffs agreed to,” Stein said.
But Stein demurred when asked why his office waited to long after the lawsuits were filed – and after voters started casting absentee ballots – to recommend a settlement regarding absentee ballots.
“My client, the State Board of Elections, voted in bipartisan and unanimous fashion to try to bring these lawsuits to resolution because they wanted to bring clarity and certainty to the election as soon as possible,” he said.
With the ongoing legal back-and-forth now, though, Stein acknowledged the uncertainty for voters.
“There’s definitely uncertainty right now and we’re studying these orders that the courts have issued,” he said. “And our mission is to bring clarity as quickly as possible.”
Bitzer, the political science professor, questioned why the board took steps to change the regulations for absentee ballots so late in the election.
“When you start sending out ballots, you want the rules to be very clear to ensure that there is accountability but, also, that the voters know the process,” Bitzer said. “And I think this level of uncertainty can be disconcerting to voters.”