Senate committee rehashes 2020 battles over election rules – here’s what happened and what they were debating

By: - March 25, 2021 6:00 am
Executive Director of NC Board of Elections Karen Brinson Bell questioned at the Redistricting and Elections Committee on March 23, 2021

Republicans on the Senate Redistricting and Elections Committee questioned the legitimacy of rule changes enacted last year by the State Board of Elections in a contentious two-hour hearing Tuesday with the board’s executive director Karen Brinson Bell.

Sen. Paul Newton, a Cabarrus County Republican co-chairing the committee, described the board’s settlement with voting rights groups, which resulted in a modified process of voting, as “secretly negotiated” and motivated by partisan advantage.

Brinson Bell, however, defended the board’s actions – most of which were upheld in a series of court challenges – as having been made necessary by the COVID-19 pandemic. She explained that while the board changed its rules, it didn’t change the law.

The source of much of the controversy at Tuesday’s hearing was a closed-session meeting on Sept. 15, 2020, at which – according to a bench memo released later – the five-member elections board discussed the conditions in eight cases they would likely settle. The first settlement was reached with the North Carolina Alliance for Retired Americans in Wake County Superior Court.

Brinson Bell explained at Tuesday’s hearing she had no role in negotiating the terms of the settlement with the group; an attorney with the state Department of Justice and the board’s in-house general counsel advised the board in reaching the agreement. She said she did not contact Gov. Cooper’s office when negotiating the settlement.

The board later agreed to three measures (addressed in three separate memos on Sept. 22):

The revised memo regulating the cure procedure for mailed absentee ballots allowed those missing a signature to be cured through a process in which a local election board sent a verification document to the voter. After state Senate President Pro Tem Phil Berger and House Speaker Tim Moore intervened in the suit, federal Judge William Osteen Jr., of North Carolina’s Middle District ruled that the board inappropriately applied an order he had issued in August requiring enhanced cure measures for mailed ballots by eliminating the witness requirement altogether.

Based on Osteen’s ruling, the board again modified the memo and required at least one witness signature on absentee ballots.

Controversies over the other memos were brought up in both state and federal courts, but were eventually resolved without significant changes to the new rules stipulated in the three memos.

On Tuesday, however, Newton cited Osteen’s and other dissenting judicial opinions, railing against Brinson Bell’s execution of the settlement agreement.

In response to Newton’s comment that the settlement was reached without the participation of the Republican-controlled legislature, Brinson Bell said the board had the authority to settle when the General Assembly was in recess and the judge indicated that he was likely to rule in the plaintiff’s favor anyway.

Sen. Bill Rabon (R-Bladen, Brunswick, New Hanover, Pender) said Brinson Bell should have contacted the Governor’s office to call the legislature into session.

“The board was addressing an unprecedented situation and trying to make sure that we were, in a very minimal way, ensuring that elections could be carried out that the votes of all voters could be counted,” Brinson Bell replied. She added that the board had used its executive power with discretion and that all five members of both parties had voted unanimously to agree to the settlement.

Brinson Bell said that while underlying laws had not changed, the board had been forced to alter rules governing last year’s elections because of the extraordinary circumstances surrounding the COVID-19 pandemic. She noted that this was a common practice for other states too. The Brennan Center for Justice at New York University tracked what they described as “a flood of voting rights litigation” for the 2020 election cycle in state and federal courts.

Sen. Joyce Krawiec, a Republican for Davie and Forsyth, noted that two Republican board members resigned after the settlement. In response, Brinson Bell stressed that the two members did vote in favor of the settlement.

The two members resigned one day after the three memos were issued and after Berger’s office issued a statement bashing the settlement. “The unelected N.C. Board of Elections colluded with the ‘opposing’ side of a lawsuit funded by national Democrats and agreed to a consent order that violates North Carolina’s election laws,” Berger wrote in a post on Medium.

Krawiec cited one of the two Republican board members, Ken Raymond’s resignation letter that he was misled to believe that his opposition to the absentee voting deadline extension would kill the witness requirement. Minutes later released from the closed session, however, showed that he agreed to vote on the measures as a whole package.

David Black, the other Republican board member at the time said he agreed to the extension, according to the minutes, though both Black and Raymond opposed stripping the witness requirement. Raleigh’s News and Observer reported that Black’s wife Deb Black wrote on Facebook that her husband’s resignation was “not voluntary.”

While Krawiec claimed that voters have lost trust in the election system, Brinson Bell defended the work of election officials, saying the unprecedented 5.5 million ballots cast in the state and the 74.5% turnout signified confidence in the system. She added that there were no clusters of COVID infections associated with voting.

Brinson Bell said only about 2,000 absentee ballots were received during the extension period, with 599 voting Republican and 581 Democrat.

“It seems that some Republican legislators want to both accept the outcome of the elections that they won some by very close margins… but then they want to also cast doubt on the work that you have done in the security of our election,” Sen. Natasha Marcus, a Mecklenburg Democrat, said to Brinson Bell. Sen. Dan Blue, a Wake County Democrat said the court rulings supported the board’s actions and applauded its work.

A co-chair of the committee, Sen. Warren Daniel, R-Caldwell, demanded Brinson Bell release tweets that were wiped from the public view after she deactivated her personal Twitter account prior to her appointment, saying he’s concerned about her partisan bias. Then serving as the deputy director of the Ranked Choice Voting Resource Center, Brinson Bell said the only possible political reference in her tweets was to promote ranked-choice voting, a scheme that allows voters to rank multiple candidates by preference instead of voting for one.

When Brinson Bell argued that those tweets were irrelevant, Daniel pressured her to say she’s refusing to release them.

Brinson Bell, who was appointed by the board to the position in 2019 for a two-year term expiring in May of 2021, said that she and the public officials serving the board approached elections in a nonpartisan manner. When asked by Sen. Carl Ford, R-Rowan, “Why shouldn’t we demand your resignation?”, Brinson Bell replied it is up to the board to decide her term.

Daniel, together with the other two chairs of the committee, filed a bill last week dubbed “Election Integrity Act.” The bill would repeal the three-day post-election receipt deadline and mandate that all mailed ballots arrive at local boards of elections by 5:00 p.m. on Election Day. It also includes a provision demanding absentee voters to request their ballots at least 14 days before Election Day. The bill has been referred the Redistricting and Elections Committee — the same venue at which Tuesday’s hearing was held.

Senate Democrats issued a statement that cast the bill as an effort to suppress Democratic voters, amid a wave of more restrictive voting legislation in many jurisdictions in the aftermath of former President Trump’s loss.

Here’s a brief summary of some of the key intertwined lawsuits discussed at Tuesday’s hearing that impacted voting procedures in the 2020 election:
Democracy North Carolina v. North Carolina State Board of Elections,  filed in the U.S. District Court for the Middle District for North Carolina in June, sought an injunction against the board’s enforcement of the state election code unless the board improved accessibility for voters.

In August, Judge Osteen ruled that guaranteeing the due process of voters in curing ballot errors is imperative, writing: “The Executive and Legislative branches would do well to carefully consider the actions proposed by Director Bell and those proposed by Plaintiffs.” However, he left the one-witness requirement in place.

After the board voluntarily agreed to cure ballots without a witness signature in the settlement, Berger and Moore asked the court to review the case, and Osteen reaffirmed the one-witness requirement, criticizing the board for misinterpreting his August order.

North Carolina Alliance for Retired Americans v. North Carolina: Represented by Marc Elias, who often represents the Democratic party and its members, including Gov. Roy Cooper in his 2016 post-election lawsuit, plaintiffs asked the court to consider extending the absentee ballot receipt deadline, citing US Postal Service delays.

The board settled in September. Minutes of the closed-session that took place prior to the settlement stated that the judge was sympathetic to the plaintiffs regarding the witness requirement. Brinson Bell issued guidance for county boards of elections to accept ballots received by Nov. 12 as long as they were postmarked by Election Day.

Then Berger and Moore, as intervenor-defendants, asked the state Court of Appeals and Supreme Court to stay the consent order. Both courts rejected the motion. Three Supreme Court justices who were facing elections,  former state Chief Justice Cheri Beasley, then-Associate Justice Paul Newby and former Justice Mark Davis, recused themselves.

Wise v. North Carolina State Board of Elections: After state appellate courts let the September settlement stand, the Trump campaign, as well as national and state Republicans quickly challenged the new ballot receipt deadline and cure process in the Eastern District for North Carolina. That court initially granted a temporary stay and then transferred the case to Judge Osteen who ultimately denied the request for an injunction.

On appeal, the Fourth Circuit Court of Appeals ruled that the State Board of Elections didn’t violate the law based on the Supreme Court’s precedent that receipt deadline should be decided by states. The U.S. Supreme Court chose not to hear the case and upheld the lower court decisions.

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Yanqi Xu

Yanqi Xu, Courts, Law and Democracy Reporter, came to Policy Watch in December of 2020 from the Investigative Reporting Workshop in D.C., where she combined data and reporting to cover public accountability issues. Yanqi graduated with a master’s degree in journalism from the University of Missouri in 2019. Her multimedia work appeared in PolitiFact and the Columbia Missourian, and was featured on the local NPR and NBC affiliates. Originally from China, Yanqi started her career producing newscasts to tell people what’s going on around the world.