Durham News

Appeal planned after Durham County dismisses demand for hand recount

A series of decisions Friday by local elections boards dealt a setback to Republican Gov. Pat McCrory’s hopes of challenging results that have left him trailing in his bid for re-election. Now his campaign is putting its hopes in the N.C. State Board of Elections.

Protests have been filed questioning alleged irregularities in 52 of the state’s 100 counties. The first county elections boards that began deliberating those protests on Friday overwhelmingly rejected them.

McCrory’s campaign on Friday evening asked the state board to take the protests out of the hands of county boards and decide the issues itself, in order to ensure consistent decisions and a quicker resolution. The state board has not yet responded.

Both state and county elections boards are controlled by Republicans.

The most votes were at stake in Durham County, whose election board on Friday denied a protest by Thomas Stark, the N.C. Republican Party’s general counsel, calling for a hand count of paper ballots.

“We are going to file an appeal,” Stark said Friday afternoon.

About 94,000 Durham County votes came in late on election night after local officials had to manually enter vote tallies from five early voting locations and one Election Day precinct.

Stark, who said he filed the protest as a county resident, contends the Durham County Board of Elections engaged in “malfeasance” with regard to ensuring the accuracy of votes counted election night. Durham County officials have defended their work, which involved entering information from ballot tabulators’ paper tapes after they were unable to read data from six memory cards that also came from the tabulators.

Election software couldn’t aggregate data from five cards because the number of votes per race exceeded the software’s memory limitation, according to testimony taken in the case. A sixth card may have had a battery problem.

The three-member board, which like all county elections boards has two Republicans and one Democrat, voted unanimously Friday to dismiss the protest, saying there wasn’t any substantial evidence of irregularity or misconduct.

Cooper leads

The State Board of Elections, which had not yet entered all the data from counties that are sorting through provisional and absentee votes, on Friday afternoon showed Democratic Attorney General Roy Cooper with a 6,600-vote lead over McCrory.

Wake County alone added about 2,000 votes to Cooper’s lead on Friday.

Cooper’s election law specialist says the lead is now greater and told reporters on Friday that internal calculations tell the campaign it is insurmountable.

“This race has simply gotten away from Pat McCrory,” Marc Elias said. “More North Carolinians voted for Roy Cooper than Pat McCrory, and did so by a close but significant margin. There is nothing Gov. McCrory or his legal team are going to be able to do to undo what is just basic math.”

Elias did not predict that Cooper would pad his lead enough to prevent the governor from calling for a recount. That margin is 10,000 or fewer votes.

McCrory’s campaign and legal team have been arguing that the number of complaints demonstrates widespread voter irregularities, if not outright fraud, although that pattern has not yet emerged in the protests that county boards of election are considering.

Even if all those protests were upheld, which would entail as many as 200 ballots, it wouldn’t change the outcome, Elias said.

McCrory campaign spokesman Ricky Diaz disagreed.

“More than 80 counties have postponed their canvas meetings until next week, so let’s be clear: The counting is not complete and there is still no certified outcome,” Diaz said. “Roy Cooper is making presumptuous statements based on piecemeal results from a handful of Democrat-leaning counties in order to deflect attention away from serious voter fraud concerns that are emerging across the state.

“The real question people should be asking is, why is Roy Cooper fighting to count the votes of dead people and felons?”

Cooper’s campaign spokesman, Ford Porter, said Friday’s rulings “make clear that these complaints are nothing more than dishonest efforts from the McCrory campaign to undermine the results of an election they have lost.”

Around the state

The Mecklenburg County elections board approved 1,106 provisional ballots Friday that gave Cooper a net gain of 374 votes.

The board delayed until Monday a review of about 500 more provisional ballots. Board members are waiting for a ruling from the state board before reviewing around 2,000 others tied to a court ruling that North Carolina must count the votes of people who tried to register to vote at N.C. Division of Motor Vehicles offices and other public agencies.

As counties grapple with how to implement the court ruling, dozens of boards also must deal with questions about absentee ballots and about the eligibility of voters who complaints said were dead, convicted felons, or voters who’d cast ballots in other states.

The Mecklenburg board dismissed two complaints Friday.

The board in Halifax County on Friday also threw out two complaints, voting unanimously that there was “no probable cause” for the complaints.

Wake County’s Board of Elections threw out a complaint Friday that several voters had illegally cast ballots in multiple states.

The protests in Wake turned up one voter recently convicted of a felony and two voters who recently died. Those three votes won’t count.

But the three-member board said there was not sufficient cause to hold an evidentiary hearing on allegations of duplicate voting. Republicans presented the board with a spreadsheet showing 22 people who might have voted in Wake and in other states. That list was trimmed to 18, and ultimately rejected.

The vote was 2 to 1 to deny the protest, with Republican Eddie Woodhouse opposing denial, and Democrat Mark Ezzell and Republican Chairman Ellis Boyle voting yes.

Boyle said the vote didn’t mean the concerns weren’t justified, only that it might be a decision for the State Board of Elections to consider. The denial could be appealed to the state.

Boyle said it wasn’t clear what the consequences would be of someone voting first in Wake and later in another state. It could be that the first vote would count and not the second; if that is the case then the county election board would have no jurisdiction, although it would likely be a criminal matter for law enforcement.

“It troubles me greatly to think that there might be people voting twice in this election, any election,” Boyle said.

Durham hearing

In Durham, Stark pointed to a state review comparing the results from five of the cards with the county’s reported results that found some minor discrepancies in a handful of races, but not the tight governor’s race.

“Every vote should count in an election,” Stark said during his closing arguments Friday. “The process should be clear and honest. We have paper ballots for those machines. It is a simple matter to count those.”

During the two-hour hearing Friday, the board seemed to focus on testimony that the information pulled from the memory cards and the information on the paper tapes appear to be reliable. That testimony came from witnesses including State Board of Elections analyst Brian Neesby and officials from Election Systems & Software, which provides election equipment and software across the state.

Stark introduced witnesses who questioned whether elections officials and the cards were reliable.

John Lloyd, a former Durham City Councilman who said he worked in IT, testified it’s difficult to maintain the security of the old memory cards.

Lloyd said that a software or virus could be loaded onto the card that would affect the outcome, but he didn’t have any evidence that had happened.

“In the name of open, transparent elections, my concern is that I don’t have any evidence that it didn’t happen,” he said.

John Posthill, who observed the Durham County board on behalf of the McCrory campaign on election night, contended he heard a Durham County employee or board member say then she had been talking to Attorney General Roy Cooper — McCrory’s Democratic challenger — during the day and she thought she could get a job in Raleigh.

Posthill couldn’t identify the individual. That section of Posthill’s testimony was stricken on an objection of hearsay. 

During closing arguments, Kevin Hamilton, a Seattle-based attorney representing the N.C. Democratic Party and the Cooper campaign, said Stark presented “empty accusations and speculation” that seeks to undermine public confidence in the process.

It’s unclear exactly how and when the appeal process will move forward in the Durham case.

Once Stark receives written notice of the board’s Friday decision, he has 24 hours to appeal to the Durham County board, which has five days to send it to the State Board of Elections. The state board, however, could expedite the process by taking jurisdiction sooner. Once the case is in the state’s hands, the time frame could depend on whether board members want to await transcripts from the Durham hearing or depend on briefs from interested parties.

“There are lots of different variations on protest hearings depending on the need of the moment,” said Josh Lawson, general counsel for the state board.

Jim Morrill of the Charlotte Observer contributed to this report

Virginia Bridges: 919-829-8924, @virginiabridges

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