Election red meat: From The Assembly
The Assembly, North Carolina's newest online journalism outlet, was kind enough to publish my thoughts about the partisan weaponization of elections. Here's an outside-the-paywall version. I urge you subscribe to The Assembly, a rich and thoughtful place to read and think about our state. Oh, and to Deregulator.net, too!
Election Red Meat
Republicans and Democrats vehemently disagree about how to handle North Carolina’s elections, a fight that will only get more intense over the next two years. It’s time to find a modicum of common ground.
It was a whopping 75 degrees during Denver’s ill-fated 2006 election. Then-Mayor John Hickenlooper walked along the election lines, offering voters bottles of water to Denverites stuck in hours-long lines. Luckily, this was 15 years before Twitter would argue whether we’re criminalizing election-line water handoffs.
That day, the not-ready-for-primetime electronic pollbook that election officials were using started and stopped several times during the day. Election centers didn’t have enough backup paper ballots. Voting stopped. An estimated 20 percent of those expected to vote on Election Day gave up, went home, and didn’t cast ballots.
Days later, Hickenlooper convened an independent panel to review the Election Day meltdown. I reported on the five-week investigation for the Rocky Mountain News’ editorial board. The probe led to a complete overhaul of the city’s election operations, and without question, boosted Hickenlooper’s reputation for competent management. He won a second term as mayor, two terms as Colorado governor, and is now a freshman U.S. senator.
I’ve covered a lot of elections over the past two decades—in Nevada, Colorado, California, and (since 2009) North Carolina. But what I saw in Denver proved something to me. When you’ve got election problems, access issues, voting irregularities—whatever variety rears its head—you’ve got two options: bicker and rile up the base, or get serious and make the darn thing better.
I’m worried North Carolina’s leaders are opting for the former; it’s not too late for them to wise up and choose the latter.
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Last week the popular New York Times podcast Serial announced its latest show: a five-part series, “The Improvement Association,” looking into a Black advocacy group in Bladen County that, for years, has been accused of tampering with elections in southeastern North Carolina. The same week, veteran journalists Michael Graff and Nick Ochsner announced their upcoming book, The Vote Collectors, focusing on recent election irregularities in that same corner of the state.
The common theme: both are focusing on the biggest election security breach in recent North Carolina history—the 2018 election in the 9th U.S. Congressional District.
In it, McCrae Dowless, a local political operative, allegedly ran an absentee-ballot harvesting scheme in Bladen and Robeson counties to deliver fraudulent votes for Mark Harris, the Republican nominee for the open congressional seat.
I supervised Carolina Journal’s coverage of the race. As we reported, the setup included “unlawfully collecting absentee-by-mail ballots from voters who weren’t a near relative or legal guardian; falsifying voters’ names on absentee ballots; signing witness certifications from ballots they hadn’t witnessed; and illegally returning ballots for voters.”
Harris led the race by 905 votes. But as rumors of ballot harvesting surfaced, the State Board of Elections refused to certify the results. The board launched an investigation, issued several criminal referrals, and Harris withdrew. A new election was held. Dowless awaits trial.
Since then, the General Assembly has made ballot harvesting of the scale from 2018 nearly impossible. House Bill 1169 set tighter limits on who can submit or witness absentee-by-mail ballots for voters who can’t get to a polling place or their local elections board. It passed the House, 105-14, and the Senate, 37-12. Gov. Roy Cooper signed it immediately.
In response to a major, proven threat to election security, bipartisan legislative action erected stronger guardrails. The events of 2018 are far from a high point for North Carolina, but the quiet follow-up is laudable. Consensus is not an impossible response to questions of election administration. The question, two years later, is whether lawmakers can do it again.
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Last month, Republicans grilled state elections board Executive Director Karen Brinson Bell, in a tense, two-hour Senate committee hearing over moves the North Carolina Board of Elections made last year that modified that bipartisan law. Republicans moved between chilly respect and outright hostility toward Brinson Bell. The elections director gave as good as she got—though at times she deflected questions by saying she was merely following direction from her bosses, the elections board.
The beef was over the state board’s actions in September 2020, when it approved a settlement changing several provisions of state law dealing with absentee ballots. The settlement, which involved Democratic superlawyer Marc Elias and closed-door negotiations, sparked a firestorm. Both Republican members of the Board of Elections resigned, despite having voted for the settlement.
The settlement’s most significant change extended a ballot deadline, so that all ballots mailed by Election Day would be counted if received up to nine days after Election Day. Previously, that deadline was just three days after Election Day.
The General Assembly was a party in the lawsuit, but it wasn’t involved in negotiations. Indeed, Sen. Paul Newton, a Republican from Cabarrus county and the Senate elections committee co-chair, said lawmakers knew nothing about a deal. They learned it had been wrapped up a few hours after they had been scheduled for a deposition in the lawsuit.
Attempts by lawmakers to overturn the settlement in state or federal court failed. But three Supreme Court justices said the high court should have heard arguments in the case, and Justice Neil Gorsuch suggested the legislature could have won.
So, at last month’s hearing, Brinson Bell, a Democrat, was skewered by Republican senators. She claimed the board had the authority to make a settlement and all it did was change rules, rather than laws. The change was needed, she said, because potential COVID-19 outbreaks could leave the board unprepared for a higher amount of mail-in ballots. She added that newly installed U.S. Postmaster General Louis DeJoy (a North Carolinian, big-time Republican donor, and national lightning rod) had suggested the USPS couldn’t handle the volume of mail ballots expected as quickly as usual.
Lawmakers were furious. They said she changed the law. Sen. Carl Ford, R-Rowan, wondered why lawmakers shouldn’t demand her resignation.
Senate Rules Committee Chairman Bill Rabon, R-Brunswick, went further: “I believe, in my heart, you broke the law.”
In response, lawmakers introduced two bills, Senate Bill 360 and Senate Bill 326.
The first, SB360, would require that future settlements are approved by the legislature.
It’s easy to retreat to your partisan corner on this issue. But the bill, as written, would provide a balance on an unchecked board. The governor—whoever it is at the time—appoints the elections board and the majority is the governor’s political party.
If Democrats want to signal they’re serious about election integrity, shouldn’t they support some form of checks and balances on a board that can unilaterally change election rules?
But if the Republicans’ first election security bill makes sense, their second, SB326, is more dubious. The key issue for the bill’s proponents is that voters should know who won on Election Day.
“Every day that passes without a declared winner just breeds suspicions and conspiracy theories in people’s minds,” Newton said in a statement. “That’s not healthy. Requiring that at least all the votes are in on Election Day helps minimize the delay in declaring a winner and, for the most part, helps wrap up the process quickly.”
I’m sympathetic to the goal. But the proposal Republicans have put out wouldn’t accomplish it, and in the process, their solution would hinder those who vote by mail.
The key provision in SB326 involves moving the deadline for accepting absentee ballots. This gets complicated, so it’s helpful to lay out exactly what the bill is changing.
In fall 2020, the standard had been that all ballots postmarked by Election Day would be counted if they were received up to three days after Election Day. The three-day grace period had been in place since 2009.
The previously mentioned agreement—touted by Democrats as necessary and derided by Republicans as overreach—made it so that ballots postmarked by Election Day would be counted if they were received up to nine days after Election Day.
SB326, however, would put into statute that ballots have to be received by 5 p.m. Election Day to count.
Again, I’m sympathetic to the idea that ballots should be counted quickly. But would this bill even accomplish that?
I asked Gerry Cohen, a member of the Wake County Board of Elections and—until his retirement in 2019—for nearly 40 years a legislative staff attorney who vetted election-related bills before they were brought up for votes.
He said the bill would do nothing to speed the declaration of a winner in a close election.
“Election Day arrivals aren’t counted until the canvass,” he told me.
Ballots returned to county elections offices on Election Day (or up to three days later, based on current law) aren’t counted immediately, he said. They’re tallied when the ballots are canvassed, 10 days after the election. (Military and overseas ballots also are counted at the canvass.)
County boards and election workers don’t and haven’t counted absentee ballots on election night, Cohen said. They’re busy securing voting machines and paper ballots; dismantling election equipment from polling sites, and returning it to the local board’s headquarters; and reporting results from early and in-person Election Day voting to the State Board of Elections.
Between Election Day and the canvass, officials are checking postmarks on mail ballots, ensuring provisional ballots are legitimate, and handling other administrative duties. The lengthy and sophisticated process of integrity checks—sometimes called ballot reconciliation—can often run through the night before canvass.
There’s a public aspect here as well. Much of this process for late-arriving ballots has to be done in a public meeting, so that stakeholders can scrutinize. For obvious reasons, no public counting could possibly happen pre-Election Day.
In other words, advancing the deadline wouldn’t speed up the results. At all.
But moving up the deadline would affect voters who are voting by mail. Sen. Natasha Marcus, a Mecklenburg County Democrat, argued that the changes could lead to votes not being counted.
At the committee meeting introducing SB326, Marcus asked about postal delays. What about the person who had mailed an absentee ballot a week or so before Election Day and, for whatever reason, the postal service failed to deliver it on time?
Newton’s response: Send it earlier. Use overnight delivery. Turn in the ballot at an early voting site or get a friend to do it.
It’s a flawed argument. Newton seems to presume that every voter is a decided voter—that no one splits ballots or makes 11th-hour decisions on races up and down the ballot.
Recent elections show that’s untrue. Not only are there more unaffiliated voters than Republicans in North Carolina (and unaffiliated voters may eventually pass Democrats), in two straight elections Donald Trump has won the state’s electoral votes while Roy Cooper was elected governor.
Just because our state offers some of the nation’s most liberal voting access—no-excuse absentee voting, early voting, the earliest date to request mail ballots—doesn’t mean that every voter will decide weeks or months before the election how to vote in every race.
Nor should we want them to! Informed voters should be listening to final arguments from candidates and making tough decisions late in the game.
Even for those who have decided weeks in advance, the earlier deadline makes voting less convenient. And it fuels the argument that Republicans and conservatives don’t want every eligible voter to cast a ballot.
It’s bad politics to make voting harder. Legally, the General Assembly could scrap no-excuse absentee voting and early voting and make just about everyone cast ballots on Election Day. If it did, the leaders of that General Assembly would be sent packing.
People value convenience. They develop habits and patterns of behavior. They love early voting—more than 3.6 million of the 7.5 million ballots cast. They love voting by mail—almost 1 million more.
Taking away or limiting that convenience suggests a lack of trust in the people you serve. It also makes it easier for Democrats to hint at a nefarious agenda by Republicans to suppress votes, genuine or not.
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At the national level, Congressional Democrats are intent on their own changes. The sweeping HR1, or the “For the People” Act, would impose new rules for registrations, early voting, redistricting, mail voting, and funding disclosure.
Writing in The Atlantic, David Graham painted a somewhat colorful picture of HR1’s challenges, saying the bill “doesn’t present a single theory of how to reform the electoral system, but is instead a palimpsest of Democratic freak-outs, with more recent ones piled atop older ones.”
Bob Hall, the former head of the progressive group Democracy NC, and I used fewer ten-dollar words in our analysis in The News & Observer, but similarly had critiques of the large-scale grab-bag approach at a national level. State legislatures, we argued, are the proper places to make many of the changes outlined in HR1. Local officials are more responsive to and aware of their own circumstances. The proper number of drop boxes for absentee ballots, for instance, or how to handle early voting in rural counties versus congested suburbs or packed cities. Hall and I differ on our politics and we disagree on what we like in the bill. But we agree that in its current form it’s too big and tries to do too much.
HR1 passed the House along partisan lines but is unlikely to move through the Senate, just as Republican bills in the North Carolina General Assembly will almost certainly fail to get past a likely veto by the Governor.
That leaves North Carolina in a partisan standoff. Can we stumble through it?
The 2019 redistricting process gives a hint to how we might. The redistricting plan—mandated by court order, to be sure—included committee meetings streamed online, a web portal allowing real-time public comments, and a map-drawing room open to the public. People other than lawmakers and staff could enter the rooms and watch the process in person.
Both Senate President Pro Tempore Phil Berger and House Speaker Tim Moore, as well as Senate Democrats including Minority leader Dan Blue, have said the process was one to emulate. Leaders have indicated it will be a model for the next round, which will take place when the 2020 census data arrive.
Nobody would say the redistricting debate has been mild. But the process itself has improved. The same can be true for the nuts and bolts of our election laws.
The alternative is ugly. Weaponizing election management for partisan gain leads to distrust in government. It can fuel conspiracy theories. A recent Locke-Civitas poll of likely 2022 general election voters asked if they believed next year’s elections in North Carolina would be “free and fair.” Only 49 percent said yes; 40 percent said no.
A mere 27 percent of Republican respondents expect free and fair elections next year. A slight plurality of unaffiliated voters were confident in the outcome—45 percent yes, 43 percent no. And a hefty 73 percent of Democrats thought the elections would be well-run.
We can’t maintain a healthy civic culture if large chunks of voters generally fear that the game is rigged for whomever pulls the levers of power. Elected officials in the Tar Heel State, at times under duress, have shown how to build an election system that encourages participation and deals with bad actors. Turning down the rhetorical temperature just a bit could make North Carolina a national model for running competent elections in an intensely purple state.
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Rick Henderson publishes a North Carolina-focused subscription newsletter at Deregulator.net. He was editor of Carolina Journal from 2009-2021 and spent the previous two decades as a reporter, editor, and columnist at newspapers and magazines around the country. Follow him on Twitter @deregulator.
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