By Lindsay Marchello and Rick Henderson
Carolina Journal News Service
RALEIGH — Illegally moving the goalposts. Intentionally violating North Carolinians’ civil rights.
They’re the upshot of federal lawsuits filed separately on Saturday, Sept. 26, by Republican leaders in the N.C. General Assembly and the Republican National Committee/Donald Trump campaign against the N.C. State Board of Elections.
A memo from the State Board of Elections changed absentee ballot rules after tens of thousands of North Carolinians have voted, weakening protections against fraud, the lawsuits say. The changes violate the U.S. Constitution, which gives state legislatures rather than appointed officials the power to change election rules — potentially diluting the rights of more than 200,000 voters who’ve cast mail-in absentee ballots.
Moreover, the General Assembly’s lawsuit Moore v. Circosta charged the Democratic elections board members and Elections Director Karen Brinson Bell of violating Section 1983 of the U.S. Code — saying the Democrats’ actions violated the civil rights of two voters whose absentee ballots were cast before the rules changed.
“The Memorandum does violate the U.S. Constitution in all the ways the lawsuit claims,” said Jon Guze, John Locke Foundation director of legal studies.
“Nevertheless, I wish it went further. It seems to me this was a huge conspiracy to deny the civil rights of North Carolina voters, and I’d like to see all the conspirators (including Attorney General Josh Stein and the Democratic National Committee and its lawyers) named in a civil ‘conspiracy to interfere with civil rights’ suit under Section 1985 of Title 42 and a criminal ‘conspiracy against rights’ suit under Section 241 of Title 18.”
At publication time, the election board had not addressed the lawsuits. Spokesman Pat Gannon told WRAL News the board was reviewing the litigation.
The legal wrangling wrapped up a turbulent week during which the elections board offered a settlement in a state lawsuit filed by Democratic groups; two of the five-member elections board resigned, claiming they were misled during the secret settlement negotiations; and the board released the minutes of the closed-session settlement meeting, which shows — the board said — the members who left knew exactly what they were doing.
Republicans say Democrats Stein, Gov. Roy Cooper, and the state elections board colluded with Democratic election lawyer Marc Elias to bypass the legislature and change election law. The leaders were defendants-intervenors in the state lawsuit, North Carolina Alliance of Retired Americans v. North Carolina State Board of Elections. But the alliance and the board filed a joint motion Tuesday, Sept. 22, asking a judge to approve a settlement. The lawsuit, led by Elias, challenged a series of changes lawmakers made to the absentee ballot process in June.
The General Assembly was shut out of the negotiations.
If allowed to stand, the settlement will lead to more uncertainty and chaos after the election, Guze said.
The proposed settlement would allow voters to fix certain mistakes on absentee ballots, including a missing witness signature, with a “cure certification” attesting to their identity. The settlement allows an absentee ballot to be counted if postmarked on or before election day and received within nine days after the election.
The changes weaken protections against fraud and raises new opportunities for challenging the results, Guze said.
The state election board voted unanimously in closed session Sept. 15 to let Brinson Bell negotiate the settlement, which she concluded the next week. The day after the settlement agreement was announced, the board’s two sole Republican members resigned.
Republican Ken Raymond said Stein misled the board about the settlement agreement. In it, the attorney general “did not advise us of the fact that a lot of the concessions made in the settlement have already been denied in a prior case by a federal judge and another case by a state court three-judge panel.”
David Black, the other Republican, said when he voted to approve the settlement he didn’t think it would affect the witness requirement, but it did.
In a rare move, the three remaining board members, all Democrats, voted in a Sept. 25 emergency meeting to waive attorney-client privilege — releasing documents related to the settlement.
The minutes and memos show all five board members had enough information to vote on the proposed settlement, a news release from the elections board said.
But Republican leaders still maintain that Raymond and Black were misled.
“This is a direct attack on the rule of law,” said U.S. Rep. Dan Bishop, R-9th District, during a Friday news conference with Senate leader Phil Berger, R-Rockingham, and House Speaker Tim Moore, R-Cleveland. Berger and Moore are among the plaintiffs in Moore v. Circosta.
Bishop left the state Senate to run for Congress after the 2018 election was overturned due to absentee ballot fraud. The congressman said the settlement Republican board members approved differs from the settlement the board sent to the court.
In the meeting minutes, the board agreed, in a move to prevent ballot harvesting, not to let voters drop off absentee ballots in boxes that weren’t supervised by county elections boards The board also said a county board official or employee would have to verify each ballot returned. From the minutes:
No unmanned ballot drop boxes allowed (emphasis added). Maintain log – clerk asks for name of person returning ballot, and verbal acknowledgement of relationship to voter that they are voter or near relative. Then the clerk writes down CIV number on the log. Then if person returning is not near relative or voter, clerk will take down name, address, relationship to voter, and then we will accept receipt of the ballot and keep that info available for any investigation.
But Bishop said language sent to the court is different. From the settlement proposal:
Defendants shall institute a process for establishing a separate absentee ballot drop-off station at each one-stop early voting location and at county board offices. Such drop-off stations may be located outdoors subject to the conditions set forth in Numbered Memo 2020-23 (emphasis added). In addition, when a person returns a ballot in person, the county board intake staffer shall ask the person for their name and whether they are the voter or the voter’s near relative or legal guardian. The staffer will indicate this information on a log along with the CIV number of the ballot and the date that it was received. If the person returning the ballot in person indicates that they are not 16 the voter or the voter’s near relative or legal guardian, the county board intake staffer will also require the person to provide their address and phone number.
In other words, people could drop off absentee ballots that weren’t witnessed or logged and they would count.
This is a sue-and-settle scheme concocted by Stein, Cooper, the Democratic-led state election board, and Elias to change the rules of the election while it’s underway, Moore said.
The closed-session vote raises other worries, said Brooks Fuller, head of the N.C. Open Government Coalition at Elon University. Speaking to television stations WBTV and WECT, Fuller said a judge could void the vote if it were challenged in court. Public boards can debate legal issues in closed session, but they’re supposed to vote in public.
At least eight other state lawsuits relating to the voting process and COVID-19 are pending.
Hearings and rulings in these cases should take place before election day, Swain Wood, general counsel to the state Department of Justice, told election board members at the Sept. 15 closed session.
“With court rulings, one or more judges could change what the State Board will do in upcoming elections. There is a high potential for conflicting rulings and changing rules,” Wood said.
Meantime, voters can request absentee ballots until Oct. 27. As of Sunday, Sept. 27, more than a million had been cast.