Election officials tiptoe around court rulings

Posted September 9, 2016 5:00 a.m. EDT
Updated September 10, 2016 9:37 a.m. EDT

— Members of the State Board of Elections seemed to switch between serving as referees, advisers, confidants and, in a few cases, exasperated parents of unruly local election officials as they slogged through a 12-hour meeting Thursday.

"I would have liked for you all to have worked something out here, but you haven't," state board Chairman Grant Whitney told two squabbling members of the Watauga County Board of Elections. "So, we're going to have to figure out something for you."

The issues in all 33 cases were at once very similar – where and when voters would cast early in-person ballots – and unique, colored by the peccadilloes and foibles of small-town politics and big-time partisan hard ball. The results of the hearings will officially be sent to county boards Friday, according to State Board of Elections staff.

In Watauga, the major difference of opinion came down to whether an early voting site should be located in a BYOB night club or in a student center on Appalachian State University's campus. Other decisions hinged on how many voters a single site could process during the day or historical voting patterns.

Lurking in the background of every call state board members made Thursday was whether it would pass muster with the 4th U.S. Circuit Court of Appeals.

That court struck down several parts of a sweeping elections law rewrite passed by the General Assembly in 2013. Although the demise, at least for this fall, of the state's voter ID requirement grabbed headlines, the court ruling also expanded early voting in the state from 10 to 17 days, starting Oct. 20.

As part of that ruling, the 4th Circuit found efforts to roll back early voting, particularly Sunday voting hours, were discriminatory toward black voters. That's because, in many areas of the state, African-Americans use early voting at higher rates than do white voters. That three-judge panel warned the state that new early voting plans had to show good reason for limiting voting hours or risk being found out of compliance with their ruling.

The three-member local boards of election that found themselves before the five-member state board this week either didn't pass plans of their own or, more commonly, did not pass a plan unanimously.

Although the run-up to the meeting was tinged by partisan angling, most notably from Republicans encouraging GOP elections board members to dial back early voting and Sunday voting despite the 4th Circuit's warnings, state board members made only seven party-line calls Thursday, deciding 26 cases in a bipartisan fashion, in some cases unanimously.

Whitney declined to comment about the meeting when it ended shortly after 10 p.m., saying he had to go meet someone. Other members seemed simply relieved the give and take of the day was accomplished with only occasional flares of partisan acrimony.

"I think today what you witnessed was, to a pretty good extent, a bipartisan board doing its best to interpret and make a good faith effort to comply with the law and especially the 4th Circuit Court of Appeals," Democratic state board member Joshua Malcolm said after the meeting had concluded.

Many voting rights advocates and Democrats were looking to the state board to temper plans put forward by Republican-controlled county boards of election that would narrow the window for early voting.

"The Republicans – the leadership of the Republicans – have tried to manipulate the county plans," said Bob Hall, executive director of Democracy North Carolina, a group that advocates for greater voting access and is often seen as friendly to Democratic causes. "They’ve encouraged their members to get rid of Sunday voting where it existed before, eliminate sites on campuses, reduce sites that helped Democrats and add sites to help Republicans."

While Malcolm said the board did its best to allay such concerns of naked partisanship, he's not under any illusion that all critics were assuaged. For example, Malcolm said he was dissatisfied with some of the board's decisions on Sunday voting.

"I don't think there will ever be a time when everyone will be satisfied," Malcolm said.

Avoiding train wrecks

Many cases were settled based on basic math. In Wake County, for example, Democratic county board member Mark Ezzell told the state board that roughly 72,000 voters cast ballots during the first seven days of early voting in 2012, the last presidential election.

While there were multiple early voting locations open during 2012, Ezzell pointed out, the plan adopted by Wake County's Republican majority would try to serve an expected 10,000 voters a day at one downtown location.

Malcolm said that GOP-backed plan was the recipe for a "train wreck." He led a bipartisan 3-2 vote to expand to nine early voting locations in the first seven days.

Math was also figured into a decision on Mecklenburg, which aside from Wake County is the state's most vote-rich county, but not before a local board member made the pitch that early voting should be scaled back to prevent fraud.

Elizabeth McDowell, a Republican and the secretary of the Mecklenburg board, said that lawmakers failed to provide funding for election judges during early voting.

"The absence of voting has left unchecked numerous violations of election laws regarding assistance, identification and electioneering," McDowell said.

She insisted that over-eager or unscrupulous politicos were taking advantage of the mentally ill and elderly.

"Are you serious?" Malcolm asked, challenging the notion that the election staff that mans early voting sites would be any less able to police polling sites than temporary judges like those hired for Election Day.

McDowell's position echoed sentiments expressed by Dallas Woodhouse, executive director of the state Republican Party.

"I think early voting can be a convenience," Woodhouse said, "but it can’t be as simple as people voting however and whenever they want under any condition.

"Part of the democratic process is having election monitors, having people watch the polls, making sure no side is doing something they shouldn't," he added.

A Republican state board member had more pedestrian reasons for raising concerns with the scanty six voting sites that would handle an expected 15,000 voters per day.

"I just don't understand how this is going to work," said Jim Baker.

Baker and other board members were also warned that providing fewer voting opportunities in Mecklenburg County, as suggested by McDowell, could draw the wrath of the court.

"No other case today mirrors so closely some of the terms the 4th Circuit was using," Joshua Lawson, the state board's top lawyer, told the members. "This would be a risky move to adopt what the majority has put before you."

Carol Williams, the Democratic member of the Mecklenburg board, urged the state to open all 22 of the county's early voting locations during the first seven days. In the end, Baker, Whitney and Rhonda Amoroso, the state board's three Republicans, settled on a compromise plan to open 10 Mecklenburg county sites.

The board's two Democrats voted against, saying that it would lead to longer lines throughout early voting period.

"I can't support it, Grant," Malcolm said to Whitney. "I think this is going to be the poster child for what not to do."

Praying for Sunday voting

Much of the most heated debate Thursday revolved around Sunday voting. Because of the heavy use of "souls to the polls" efforts in African-American churches, plans tinkering with Sunday voting ran the risk of running afoul of the 4th Circuit's ruling.

In New Hanover County, home to Wilmington, for example, black voters make up 44 percent of Sunday voters despite making up only 13 percent of the county's population.

That "disproportionate use of Sunday voting among African American voters," said Press Millen, a lawyer for local Democrats, made the elimination of Sunday voting "problematic."

However, other features of the plan caught more of the board's attention, and it ultimately adopted a New Hanover County plan without Sunday voting hours.

Not so much in Cumberland County, despite the protestations of Kevin Hight, who said he was willing to compromise on virtually any point of the early voting plan except that he did not want Sunday voting.

"I don't get why we have to have Sunday voting at all in Cumberland County when we've had it only twice in the history of county," Hight said. "Government activities in general are shut down on Sundays."

He made the point that nobody makes the case they're deprived of a court hearing if they can't address a traffic ticket on a Sunday afternoon.

"I just don't get why we have to throw it in for political reasons, I'm sad to say," Hight spat.

Amoroso chimed in, "It's highly partisan, you know that."

Of the five state board members, Amoroso was the most vocally skeptical of moves to add Sunday voting hours. But other members pointed out that Cumberland fell into the category of counties that had Sunday voting in 2012.

"I'm concerned about the legal consequences of omitting Sunday voting," Baker said.

The board voted 4-1 to include two four-hour windows of Sunday voting or Cumberland County.

It's unclear if any of those who came out on the short end of the state board's decisions will appeal its rulings. Any such action would have to come quickly. Local boards of election begin mailing out absentee ballots Friday and have already begun their preparations for in-person early voting to begin on Oct. 20.