Politics

Protests under way in razor-thin NC Supreme Court contest

By Sarah Michels, Carolina Public Press, Published: November 24, 2024

Hattie Street, a 92-year-old registered Democrat, voted early this year. It was one of the last things she did. Street made her way to the Granville County polls on Tuesday, Oct. 22, four days before she died.

Her funeral took place two days before Election Day. Street is one of thousands of voters whose eligibility is being challenged in an election protest, one of a series that Republican runner-ups have filed in close races this year.

Other challenged voters include suspected felons, overseas and military voters who have never lived in North Carolina or didn’t attach photo ID copies to their absentee ballots, people whose voter registration was denied in recent weeks after failed mail verification and, chief among all, voters whose registrations did not include a driver’s license or Social Security number.

Each protest will take time to resolve. At best, county boards of elections and the State Board of Elections will make their determinations in the 308 election protests by early December. But appealed decisions may take a lengthier journey through the North Carolina court system or the General Assembly.

Meanwhile, recounts are underway in nearly all North Carolina counties. All are set to be completed by Nov. 27. Recounts rarely change results, former North Carolina Supreme Court justice Bob Orr told Carolina Public Press.

The State Board of Elections will conduct its canvass Nov. 26, despite pending election protests. But neither the State Board nor county boards will certify the results of the implicated elections until each protest in those races is resolved, either by a board of election or the courts.

4 close races, 7 issues, 100s of protests

On election night, Republican Court of Appeals Judge Jefferson Griffin’s future looked bright.

He appeared to have ousted incumbent Democratic North Carolina Supreme Court Judge Allison Riggs by a hair, resulting in a future 6-1 Republican majority on the state’s highest court.

But 10 days later, that future slowly dimmed as each county completed its canvass. Over several days, Riggs bridged the gap with provisional ballots and Election Day absentee ballots that were not included in initial, unofficial election night results.

When the dust settled, Riggs was up by 722 votes, or 0.02% of total votes cast in the race. While Griffin had a 79,000-vote margin among in-person Election Day or early voting voters combined, Riggs won among absentee voters by 78,000 votes and among provisional voters by about 2,000.

Shortly after, Griffin campaign consultant Paul Schumaker said the campaign would request a recount. He also warned of plans to protest, saying to expect a “long, protracted legal fight.”

“There’s a lot of questionable things done in this process,” he said.

Sure enough, Griffin filed 307 election protests Tuesday. Republican runner-ups in three close legislative races — Frank Sossamon in House District 32, Ashlee Bryan Adams in Senate District 18 and Stacie McGinn in Senate District 42 — filed a total of 22.

Sossamon is behind in his race against Democrat Bryan Cohn to represent Granville and Vance counties by 233 votes. If the results of his election were flipped, the North Carolina Republicans would retain their veto-proof supermajority in both chambers of the legislature. As things stand, they are on track to lose it.

Adams has a smaller margin of 134 votes between her and Democrat Terence Everitt. McGinn is currently losing to Democrat Mrs. Woodson Bradley by 204 votes.

In each case, the candidates lodging the protests do not in fact know for certain how any of these people voted in their race, so they could potentially lose votes by winning the protests.

McGinn essentially acknowledged this, saying, “We’re not distinguishing whether they’re Republicans or Democrats. These are just lists of names. So some will be voting Democratic, some will be voting Republican. The point is they just, in our view, they should not have been allowed to vote.”

Each protest covers one of seven separate categories of voters. The State Board will handle protests in the categories that deal with legal issues, while the county boards of election will take care of protests involving more factual, record-based challenges.

The first category of protest includes people who voted early in-person or by mail but died before Election Day. Some counties, like Wake County, counted some of those ballots.

Wake County Board of Election member Gerry Cohen said it was “unclear” to him what part of North Carolina law required election officials to void these votes.

Counties send notices in the mail to these voters’ addresses with a hearing date listed, in case they were improperly identified as a deceased voter. The Friday of canvass, Wake County heard testimony from three next of kin of deceased voters. It was emotional, Cohen said.

“(The first two) each testified about how their parent, their 96- and 76-year-old parent, had been so excited about voting as one of the last things they wanted to do in life, and they were dying, and they knew they were dying,” he said.

“The third one we reversed on was an 18-year-old woman, first time voting, who had brain cancer and died the day after voting. And I said at the meeting that this was unspeakably cruel.”

The other 68 deceased voters identified in Wake County were removed from the count.

North Carolina law states that registered voters will remain registered until they “become disqualified through death.” In some election officials’ eyes, it’s unclear whether being registered at the time of casting a ballot is the same as being registered by the time the election is over.

The Department of Health and Human Services gives the State Board names of dead people every week to distribute to county boards and remove from the voter rolls.

In most counties, there were at most a few dozen deceased voters implicated in election protests. County boards of elections have jurisdiction over these protests.

The second category makes up the lion’s share of challenged voters. It includes registered voters who do not have a driver’s license or Social Security number on file, candidates allege.

This complaint originates from a snafu with voter registration forms uncovered by a North Carolina citizen in October 2023. For a period of time, the voter registration form did not clearly indicate that registrants must provide a driver’s license or the last four digits of their Social Security number, if they had either.

If they didn’t have either, they could check a box attesting so. Those voters are still eligible to vote, as long as they present certain accepted forms of documentation with their current name and address the first time they vote, in accordance with the federal Help America Vote Act.

While the State Board fixed the form, they did not honor the citizen’s request to contact and verify the identities of an estimated 225,000 voters who registered using the unclear form.

In August, the North Carolina Republican Party and the Republican National Committee sued over this issue. Part of the lawsuit, alleging that the State Board’s inaction violated the North Carolina Constitution’s right to vote, is ongoing in federal court.

Election protests in the legislative races included lists of thousands of voters in this category. They also made up the majority of Griffin’s contested voters.

The State Board has jurisdiction over these election protests.

The third election protest category includes people who may have voted despite serving a felony sentence. Felons are not allowed to vote in North Carolina until they have completed their sentence, any probation or parole, and re-registered.

In one of his election protest filings, Griffin said they believe most, but not all, counties removed felon voters from the count before their canvass. Sossamon’s filing acknowledged that they did not have complete information, so it was possible that they may have misidentified felon voters.

Candidates did not file election protests regarding felon voters in most counties, and when they did, there were a few dozen potential felons implicated at most. County boards of elections will oversee these election protests.

Fourth, some people who used same-day registration during early voting have since had their registration denied or removed.

One of the final steps before being an accepted voter is passing a mail verification test. County boards sent un-forwardable mail to the address listed on the voter registration application, and if it comes back as undeliverable, those voters may be removed from the count.

These protests will be handled by county boards of elections.

The fifth and sixth category involve overseas and military voters. Candidates allege that some of these voters did not attach a photocopy of their photo ID or an exception form to their absentee ballots, and are therefore invalid. These protests will be decided by county boards of elections.

Other overseas voters have never resided in North Carolina, but have parents or legal guardians who were last eligible to vote in the state.

North Carolina law allows this, but each candidate protested these voters on grounds that the state law itself, in their view, violates the North Carolina Constitution’s residency requirement for voting.

This issue is also already being addressed in an ongoing court case filed against the State Board of Elections. The North Carolina Court of Appeals ruled that these so called “Never Residents” would be allowed to vote in this election, but the RNC and NCGOP appealed it to the state Supreme Court.

Finally, McGinn filed her own independent election protest challenging the eligibility of certain absentee voters she believes do not actually live in her district, and therefore do not meet residency requirements. An initial review implicated at least 3,000 voters, she said.

“I believe that made the difference, that that contains enough voters that would make a difference from the 204 margin that currently exists,” she told Carolina Public Press.

In McGinn’s race, absentee and provisional ballots flipped the race against her. She is concerned about the increase in these voting methods since COVID, and whether eligible voters are being disenfranchised by ineligible voters.

“We need to be more vigilant about figuring out who these people are and determining, do they or don’t they meet our residency requirements?” she said. “Should they be casting votes here?”

How does an election protest work?

Election protests can extend an election far beyond the first week of November. The election space has also become more litigious than in past generations, Orr said. Orr co-chairs the North Carolina Network for Fair, Safe and Secure Elections.

“Both political parties were heavily lawyered up and prepared in a race as close as the Supreme Court race and maybe a couple of these legislative races,” Orr said. “If there was any legitimate grounds for challenging the process or particular votes, you go in and do it.”

Whether under the county board or State Board of Elections’ jurisdiction, election protests start with a preliminary review to determine whether there is probable cause to believe that a violation of election law, irregularity or misconduct has occurred.

If there is, a hearing is scheduled. Election officials can subpoena witnesses or documents to help them make factual findings and legal conclusions in the case.

During a county-level hearing, the elections board will decide whether to dismiss a protest from lack of evidence of a violation that would cast doubt on the election results, send it to the State Board or declare that there was sufficient evidence that an election law violation or other irregularity or misconduct occurred that was sufficiently serious to cast doubt on the election results.

In the latter case, the board has several remedies. They can recount the votes, correct the vote total and declare new results, send the case to the State Board for further action or take any other action within their authority.

The candidates filing protests asked for two remedies: correct the vote count, and notify voters impacted by the faulty voter registration form to inform them that they have a certain period of time to fix the issue or be removed from the count.

State Board hearings work similarly, with more schedule flexibility. In rare cases, they may call for a new election.

This year, they’re asking protesting candidates to file legal briefs by Nov. 27, and for the opposing candidate to respond by Dec. 6.

Orr said people should trust the process. Every provisional and absentee ballot is certified by local boards of election, which are bipartisan. Random audits take place in each county with hand counting of ballots in randomized races to make sure the results match the voting machine tabulation.

While board members may disagree about politics, Orr said in his experience they look past that out of dedication to following the law and getting it right.

“You don’t approve provisional ballots or absentees if there isn’t a Republican and a Democrat board overseeing it,” he said. “So for anybody to say in this day and age that there’s some sort of partisan misconduct or mischievousness, would just simply defy the facts.”

How far might appeals go?

Candidates adversely impacted by county-level hearing decisions can appeal them.

The first appeal is to the State Board, which can use the county hearing record, call its own witnesses, get additional evidence or conduct its own hearing.

The proper venue for an appeal of the State Board’s decision depends on the contest.

For judicial contests, the State Board’s decision would be appealed to Wake County Superior Court, and may run its course through the court system.

However, the state Constitution states that Supreme Court judges hold office until their successors are elected and qualified, so even if a protest leads to Riggs’ election loss, she would remain in office until any litigation is over.

Under a North Carolina law, legislative election protests will be appealed to the General Assembly, where the respective chamber makes the final determination of who received the most votes. In the case of a council of state appeal, a joint session of the General Assembly decides.

If the General Assembly can’t reach a conclusion, it may order a new election or other relief deemed “necessary and proper.” The legislature’s decision is not subject to further appeal, according to state law.

Orr said he’s not aware of the General Assembly provision ever being used, and doubts it would be used to select the legislature’s preferred candidate as winner.

“The local boards have certified X number of votes for each candidate, the audits have been done, all the bells and whistles and boxes have been checked,” Orr said. “Where do you go if you’re the General Assembly to find a different vote count?”