Provisional ballots mishandled in Durham

North Carolina State Board of Elections officials discovered the problem in April during an audit of primary results. While it's unclear exactly what led to the problems, it is clear that some number of ballots are missing, ballots that should not have counted may have been counted, some ballots may have been counted twice and the ballots in question have been handled in such a way that elections officials can no longer sort the ones that should count from those that shouldn't.

"What happened here, in Durham County, shouldn't have happened, and we're going do everything we can to identify how it happened and make sure it never happens again," state Elections Director Kim Strach said Thursday.

There are not enough votes in question to affect the outcome of any election, either in Durham or statewide, Strach said. But clearly, some number of voters won't have their voices heard in the March election.

State elections officials said they are consulting with the Durham County District Attorney's Office on whether criminal charges are warranted. Tampering with election results is a felony.

Michael Perry, Durham County's elections director, is out of the office tending to a personal medical issue and was unavailable for comment.

William Brian, the chairman of the Durham County Board of Elections, emailed a written statement that confirmed Strach's account of the problems.

"The State Board of Elections has been conducting an investigation, with which the Durham County Board of Elections has been cooperating fully," he wrote, adding later in the email, "In the meantime, we are unable to comment further due to the pending State Board of Elections investigation. However, the Durham County Board of Elections will be studying ways to insure that no such event ever can happen again. It is important to the Durham County Board of Elections that we preserve the integrity of the electoral process."

Provisional ballots are supposed to provide a safety net to ensure that eligible voters aren't excluded from the process due to an issue that's not their fault.

Voters cast provisional ballots when they arrive at a polling place and encounter an administrative problem. Some voters, for example, try to vote a the wrong precinct. Sometimes, election officials cannot find their names in the poll books. Whatever the problem, a provisional ballot allows the voter to cast a vote and have that vote count if it should.

After an election, county boards of elections spend time sorting out which provisional votes should count – for example, cases where there is merely a clerical error – from those that should not – cases, for example, where a would-be voter never registered. Those provisional votes are then counted in the days and weeks following the election.

"We want people to know, when you vote a provisional ballot, and you are eligible to vote, that ballot will be counted just as any other ballot," Strach said.

Normally, both county and state elections officials hold canvass meetings in the week or two following an election like the March 15 primary. This year, state elections officials delayed their statewide canvass to conduct more thorough audits of local boards. That effort was in large part aimed at making sure all counties handled questions revolving around voter ID the same way in the first North Carolina election where it was at issue.

According to emails obtained from the State Board of Elections and interviews, it's clear that, by April 8, Durham election officials had discovered they had a problem. Perry wrote to a lawyer for the state board detailing problems Durham County elections officials were encountering.

His email details how two temporary staffers reported getting instructions to essentially run ballots through a counting machine a second time by a full-time county staffer.

"I assured both of them that this was unacceptable, and not how we operate," Perry wrote.

After getting these reports, Perry said that elections officials counted the number of provisional ballots cast and came up short.

"It was at this time that other temp staff members came forward stating that there was a tote of unopened and uncounted ballots present after everything was supposedly completed," Perry wrote. "We are short approximately 200 ballots and have searched everywhere on our floor and the basement."

During this investigation, the county staff member who gave the apparently improper instruction resigned. His name was redacted from records provided to WRAL News. Brian, the Durham County Board of Elections Chairman, declined to provide the employee's name, citing state personnel laws.

In addition to ballots that are potentially missing, there are other problems. Durham elections officials initially reported that there were 1,918 provisional ballots cast. But they have physical records for only 1,841 of those ballots.

In addition, county elections officials determined that only 1,039 of the provisional ballots cast should count. Those ballots were cast by a mix of Republican, Democratic, Libertarian and nonpartisan voters. Each type of voter received a different style of ballot, depending on which primary he or she was eligible to vote. Two different board of elections systems tracked the same number of eligible ballots, but they found different mixes between the parties.

For example, one audit trail indicated that 345 Republicans had voted provisionally, while another showed that 260 Republicans had used provisional ballots.

"We have no evidence that anybody was trying to change results to change the outcome of any election," Strach said. "What we have been able to see is they were aware of the number of provisional ballots that should be counted."

The implication, as yet unproven, is that something happened along the way to throw off those numbers, and somebody tried to cover the mistake.