Federal Judge Chides N.C. Elections Board, But Takes No Action

By Mitch Kokai
Carolina Journal News Service

RALEIGH — A federal judge noted his “serious concerns” about the N.C. state elections board in an order issued Friday, Oct. 30. But the judge denied legislative leaders’ request to take action against the board.

The new 19-page order represents U.S. District Judge William Osteen’s latest pronouncement about rules governing N.C. elections. The order addresses concerns about elections officials’ compliance with an earlier Osteen ruling. The judge had preserved state law’s witness requirement for mailed-in absentee ballots. He also set limits on the types of ballot mistakes that could be “cured” by elections officials.

Republican legislators presented evidence to Osteen that elections officials in at least two counties — Mecklenburg and Cumberland — have accepted absentee ballots without the legally required witness information.

Osteen responded that his court could not address the issue. “Unfortunately, despite this court’s serious and substantial concerns that the cure procedure used by the SBE does not comply with the statutory requirements, Legislative Defendants’ motion for clarification is an inappropriate vehicle to address such concerns.”

“Though it frustrates this court, … that the SBE seems to be permitting county boards to accept and process ballots for counting without ever obtaining the information required by statute, the basis of any injunction this court might issue here would not be grounded in a federal Due Process violation,” the judge wrote.

Court precedent “appears to counsel that these issues are matters for the state and state courts to address,” Osteen concluded.

“[T]he denial of relief should not be misconstrued as this court’s approval of the actions of the North Carolina State Board of Elections,” Osteen warned. “To the contrary, for the second time in this case, this court has serious concerns about the conduct of the North Carolina State Board of Elections.”

“[B]ased on the evidence presented, this court finds that the State Board of Elections is permitting at least two county boards of elections to undermine and contravene the requirements of the law of the state of North Carolina,” he wrote.

Senate leader Phil Berger, R-Rockingham, responded to the latest Osteen order.

“When [Gov.] Roy Cooper took extraordinary measures to ensure his absolute control of the elections process, concerns were expressed about what that would mean when it came time for his partisan appointees to administer Cooper’s re-election contest,” Berger said in a prepared statement. “Now we know – they will cut corners, bend rules, and ignore judicial findings. Today Gov. Cooper’s hand-picked Board of Elections was again rebuked by a federal judge, this time for accepting as valid absentee ballots that clearly violate witness requirements in North Carolina law.

“The Board continues to flagrantly violate election rules that bipartisan supermajorities in the legislature passed many months ago. The Board must immediately correct course and fully implement the absentee ballot witness requirement to ensure confidence that our election process is being administered fairly and consistent with the law. Legitimate questions are being raised about what this may mean when they actually start counting ballots.”

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