Raleigh, N.C. — County election officials should keep counting votes from the Nov. 8 election despite numerous protests, the State Board of Elections ruled Tuesday afternoon.
It's unclear whether lawyers for Gov. Pat McCrory or Attorney General Roy Cooper won the day at the conclusion of the three-hour dive into election minutia. The Republican incumbent and his Democratic rival have been battling over election results that give Cooper a roughly 6,100-vote edge.
A written order that was to be issued later Tuesday will likely clarify matters on all sides. However, it is all but certain that this is not the last time the two sides will clash.
The five-member state board did not look at individual cases Tuesday. Rather, the board wanted to give counties broad guidance about how to handle certain categories of voters, including those who cast ballots and then died or those who may have been on probation for felony crimes when they voted.
"In the event that there are appeals of those individualized decisions, those would be added up together to determine whether there's some sort of net effect on the statewide races," said Joshua Lawson, the State Board of Elections' general counsel.
In other words, the major question the state board will eventually have to answer is whether there are enough contested ballots to change the course of the election between McCrory and Cooper or another statewide race.
For the time being, that answer appears to be "no." However, the uncertainty that has characterized the election will have some effect. It's now all but impossible for the state to have a certified statewide figure on Nov. 29 as originally scheduled. Instead, the soonest there could be a final result will be early December.
McCrory has already asked the state board for a recount, a process that will further delay a final result.
The board heard Tuesday from the Cooper and McCrory campaigns, as well as a lawyer for the Southern Coalition for Social Justice.
"The outcome of these protests absolutely could affect the outcome of this election," John Branch, a lawyer representing the McCrory campaign, said during the hearing.
But Kevin Hamilton, a lawyer representing the Cooper campaign, said that Republicans have not been able to show they have challenged enough votes to affect the outcome. He said that most of the protests had been brought too late under the law in order to be considered.
The question, Hamilton said, was whether the board should allow them anyway.
"The answer to this question is not only no, but clearly no," he said.
That provoked Branch to say that the state board would be abdicating its responsibilities if it ignores the challenges.
"Their argument is, essentially, due process is no process," Branch said.
According to figures posted by the State Board of Elections on Tuesday night, Cooper holds a 6,154-vote lead on McCrory, a slim margin given roughly 4.7 million votes were cast in the election.
Arguments over likely outcomes
Cooper has declared victory and has set about putting together a transition team. But McCrory has not conceded, and Republicans have peppered local boards of elections with various legal challenges, hoping in many cases to have votes thrown out.
Democrats insist that, even if McCrory wins all his challenges, he won't have enough votes to make up the gap.
"What the governor is spending his time doing now is trying to say, just because he lost, somebody cheated, and that's just unfortunate," Morgan Jackson, Cooper's lead campaign strategist, told WRAL News last week.
Among the most sweeping allegations that McCrory and his allies have made is that local boards, which are all controlled by 2-1 Republican majorities, have failed to root out voters who cast ballots in other states, dead voters and voters who were felons at the time of the election. By and large, the issue of duplicate voters appears to involve conflating people with similar names, and the dead voters identified so far cast early ballots and then passed away.
However, the state board said it had identified 339 active felons who cast ballots. It is those voters, many of who weren't challenged in a timely fashion, that provided much of the impetus for Tuesday's meeting.
But Allison Riggs, a lawyer for the Southern Coalition for Social Justice, said many of the lists that compared felons and dead voters to voting lists were inaccurate, and she argued that federal law allowed for individual challenges but not for sweeping database matching that challenged whole categories of voters.
"We do an enormous disservice ... when we elevate spurious claims like this and imply in any way they cast doubt on the election just conducted," she told the board.
While the numbers of ballots to be discounted so far is small, Republican officials say that Cooper has been too fast to declare victory.
"Roy Cooper should respect the process to ensure all legally cast ballots are counted before measuring the drapes," North Carolina Republican Party Executive Director Dallas Woodhouse said Monday. "Despite partisan lines, we want to make sure the man with the most votes wins this election, and it's a shame that Roy Cooper doesn't want the same."
The Republican Party and McCrory's campaign committee filed a legal brief with the state board arguing the board should instruct counties to aggressively winnow votes cast by those found to be ineligible.
Cooper's committee and the state Democratic Party urged board members to avoid overstepping boundaries laid out by law and pointed out that many of the voters challenged by Republicans have been found eligible.
"The wildly erroneous nature of the protests submitted by the McCrory campaign is precisely why the due process protections of the North Carolina challenge procedure is vital," the Democrats' brief concludes. "Only through this process — the only one authorized by state law to process claims of individual voter ineligibility— can a fair and just result be reached."