HomeMy WebLinkAboutHCBOE Board Meeting Minutes- November 24, 2020- Recount Cavass and Preliminary Consideration MeetingHARNETT COUNTY BOARD OF ELECTIONS
RECOUNT CANVASS/ PRELIMINARY CONSIDERATION MEETING
NOVEMBER 24, 2020
4:00 P.M.
Present were; Board Chairman Tony Spears, Secretary Lin Coker, Members: Steve Blackburn,
Jim Currin and Betsy McCormick via telephone.
Also Present were; Director Claire Jones, Deputy Director Claudette Williams and County
Attorney Chris Appel; also, see sign in sheet attached hereto.
Mr. Spears called the meeting to order at 5:00 pm (due to a delay with finishing the recount) with
a prayer and the Pledge of Allegiance.
Business:
The Board of Elections, recounted the Supreme Court Chief Justice, seat one contest on
November 23 and 24, due to a statewide recount request by Cheri Beasley. After the recount was
complete, Mrs. Jones prepared the recount canvass reports for the Board. The Board reviewed
the Recount Canvass, attached hereto. Beasley gained 3 votes in 3 precincts and Newby lost 2
votes in one precinct. After some discussion, Mr. Coker moved to approve the Recount Canvass.
Mr. Blackburn seconded. Approved without dissent.
Mrs. Jones submitted to the Board of Elections, an Election Protest filed by Cheri Beasley,
attached hereto. The Board reviewed the protest and after some discussion, Mrs. McCormick
moved that the protest did meet the criteria for an evidentiary hearing. Mr. Blackburn seconded.
Approved without dissent. Mr. Currin moved to hold the hearing on December 8 at 4:OOpm. Mr.
Blackburn seconded. Approved without dissent. Mrs. Jones stated that she would try to schedule
the meeting in the Commons Area.
With no further business to discuss, Mrs. McCormick moved to adjourn. Mr. Coker seconded.
The meeting was adjourned at 5:57 pm.
The next meeting of the Board will be a regular meeting on December 1, 2020 at 4:00 pm at the
Harnett County Commons Area.
Approved by:
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Tony %ears, airman
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Lin Coker, Secretary
Steve Blackburn, Member
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etsy McCo ck, Member
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im Currin, Member
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08 NCAC 02.0111 ELECTION PROTEST FORM
All persons bringing an election protest under Article 15A shall complete and timely file the following form. For the
purposes of this Rule, "timely" means within the time required by G.S. 163-182.9(b). Please note this form shall not
be used to challenge the registration -of an individual voter or to report an incident other than an irregularity affecting
the outcome of an election.
ELECTION PROTEST
(Use of this form is required by G.S. 163-182.9(c))
This form must be filed with the county board of elections within the timeframes set out in G.S. 163-182.9(b)(4).
Please print or type your answers. Use additional sheets if needed to answer the below questions fully. Number the
pages of all additional sheets. Please note that filings will be a public record. Please redact all confidential
information, such as date of birth, Social Security number, and driver's license number.
Respond to all prompts. Failure to complete this form as required may result in the dismissal of your protest. Attach
additional sheets as necessary, including all exhibits and supplemental documents. All attachments are deemed
incorporated and covered under the Protest Certification.
PROTESTOR
1. Provide your preferred contact information:
Name: Cheri Beasley County of Residence: Wake
Email: info chi f usticebeasle .corn Phone: 919-670-6706
Mailing Address: P.O. Box 28918 Raleigh. NC 21611
NOTE: You will be deemed to consent to service at all of the above addresses (including email), unless you
attach an addendum indicating otherwise.
2. Are you represented by counsel? X Yes ❑ No
NOTE: if you answered Yes, above, your counsel must complete and you must attach the Counsel
Certification Addendum.
3. Mark all that describe you:
X Candidate for the office of Chief Justice
X Registered voter eligible to participate in the protested election contest
o Neither of the above*
*If you select this option, you are not eligible to file a protest.
PROTEST SCOPE
4. List all election contests subject to your protest and calculate the margin of votes separating the apparent winner
from the runner-up as of the date of filing. Your response does not waive your right to contest the validity of the
current vote count. If your protest concerns all contests on the ballot, you must include the vote margin for each
contest.
Protested Contest(s) Current Vote Margin
[subtract runner-up totals from apparent winner's
Chief Justice 367
PPAB 59556541
5. This protest alleges (select a1 least one):
X A defect in the manner by which votes were counted or results tabulated sufficient to cast doubt on the
apparent results of the election.
X A violation of election law, irregularity, or misconduct sufficient to cast doubt on the apparent results of the
election.
FACTUAL BASIS & LEGAL ARGUMENT
6. Provide all factual allegations in support of your protest. If any fact you allege is outside the scope of your
personal knowledge, you may attach affidavits fiom those who have personal knowledge of that fact. All facts you
allege in connection with this protest must be true and accurate to the best of your knowledge, and brought in the
sincere belief that the facts alleged form a good faith basis to protest the conduct and results of the election.
See attachment, including exhibits and affidavit.
7. List all individuals, if any, you may call as witnesses to substantiate facts listed in Prompt 6. If there are multiple
individuals, summarize the facts of which the individual has personal knowledge.
See attachment to item 6.
8. Cite any statute or case, administrative rule or decisions, and election policy or procedure that supports your claim
set out under Prompt 5.
Citations are included in the attachment to item 6.
RELIEF
9. What effect do you believe the facts alleged in response to Prompt 6, if proven, will have on the electoral outcome
in the protested contest(s)? Your response should account for the current vote margin calculated in response to
Prompt 4.
o The electoral outcome of the protested contest(s) will change.
❑ The electoral outcome of the protested contest(s) will not change.
X I am uncertain whether the outcome of the contest(s) will change.
❑ Other
10. What relief do you seek?
X Correct the vote count
❑ A new election
X Other: Investigate any_irregularities noted.
PPAB 5955654YI
ASSISTANCE
11. List all persons who assisted you in preparing the contents of this protest and indicate the nature of the assistance
provided:
Counsel
Note: For protestors represented by an attorney, this protest is the initial filing in a proceeding as defined by N.C.
State Bar Rules. See 27 N.C.A.C. 02 Rule 1.00(n).
12. Has any candidate, political party, organization, or person acting on behalf of the same requested that you bring
this protest?
o Yes
X No
13. Have you received any financial or other benefit or promise of future financial or other benefit in exchange for
filing this protest?
o Yes
X No
AFFECTED PARTIES & SERVICE
You must serve copies of all filings on every person with a direct stake in the outcome of this protest ("Affected
Parties"). Affected Parties include every candidate seeking nomination or election in the protested contest(s) listed
under Prompt 4, not only the apparent winner and runner-up. If a protest concerns the eligibility or ineligibility of
particular voters, all such voters are Affected Parties and must be served. Address infonnation for registered voters
is available from the county board of elections or using the Voter Lookup at www.ncsbe.gov.
Materials may be served by personal delivery, transmittal through U.S. Mail or commercial carrier service to the
Affected Party's mailing address of record on file with the county board of elections or the State Board, or by any
other means affirmatively authorized by the Affected Party. If you know the Affected Party is represented by an
attorney, service must be made on his or her counsel. Service must occur within one (1) business day of filing
materials with the county board of elections. If service is by transmittal through the U.S. Mail or commercial carrier
service, service will be complete when the properly addressed, postage -paid parcel is deposited into the care and
custody of the U.S. Mail or commercial carrier service. It is your responsibility to ensure service is made on all
Affected Parties.
14. List all Affected Parties, including their service address:
Affected Parry Service Address
Paul Newby clo Roger KnigbL counsel rroger(i4ro eg rknitlaw.com
PROTESTOR CERTIFICATION
15. By signing this protest application, you affirm the following:
I, Cheri Beasley (full name), swear, under penalty of perjury, that the information provided in this protest filing is
true and accurate to the best of my knowledge, and that I have read and understand the following:
PPAB 5955654v1
VI have reviewed the statutes and administrative rules governing election protests, including all deadlines.
c4Q My protest must originate with a filing at the county board of elections.
c4O I must timely serve all Affected Parties.
O-ed I must prove by substantial evidence either the existence of a defect in the manner by which votes were
counted or results tabulated or the occurrence of a violation of election law, irregularity, or misconduct,
either of which were sufficient to cast doubt on the apparent results of the election.
It is a crime to interfere unlawfully with the conduct and certification of an election.
�0 It is a crime to interfere unlawfully with the ability of a qualified individual to vote and to have that vote
counted in the election.
The facts I. allege in connection with this protest are true and accurate to the best of my knowledge, and -I
have a good faith basis to protest the conduct and results of the election.
Submitting fraudulently Vr falsely completed declarations is a Class I felony under Chapter 163 of the
General Statutes. T nis prgxidg'Ec suant to S.L. 2013-381, s. 5.4.
Signature of Protest r: " Date: November 172020
(This signature must r ed in the presence of a notdr))
State of North Carolina, County of Wake
Sworn to (or affirmed) and subscribed before me this the 17th day�vember, 2020.
A•••1•pN1111NQ41y1��, 1"
(NCa C. �-} �+ r
Official Sea ' bacial Signature of Notary
NOTARY
PUBLIC V
......................................................................................
DatetTime Filed with County Board
(mmpleted by the county board)
InM- C - Notary Public
Printed Name
My commission expires: 3 1 4d-L—
NOTE: The county board must provide the State Board with a complete copy of a filed protest within one business
day after it is filed. in addition, the county board shall provide a copy of the election audit with this copy of the
protest.
Please direct any questions to your county board of elections or the North Carolina State Board of Elections &
Ethics Enforcement, PO Box 27255, Raleigh, NC 27611-7255,
PPAB 5955654vl
FACTUAL BASIS & LEGAL ARGUMENT
6. Provide all factual allegations in support of your protest. If any fact you allege is outside
the scope of your personal knowledge, you may attach affidavits from those who have
personal knowledge of that fact. All facts you allege in connection with this protest must be
true and accurate to the best of your knowledge and brought in the sincere belief that the
facts alleged form a good faith basis to protest the conduct and results of the election.
Absentee Mail Ballots
Commencing on September 4, 2020 each North Carolina county board of elections ("County
Board") transmitted absentee ballots and ballot applications (in the form of container -return
envelopes) to registered voters who had requested them. The applicable provisions of N.C.G.S.
§ 163, as amended by House Bill 1169, and the Numbered Memos promulgated in accordance
therewith provided certain guidance with respect to the burdens imposed on voters seeking to
vote by absentee ballot. Upon receipt at each County Board, such applications were to be
examined for compliance with applicable laws and guidance provided by the North Carolina
State Board of Elections ("State Board"). In addition, several court orders provided additional
guidance to the County Boards. The process of review and approval of absentee ballot
applications resulted in the occasional wrongful denial of voter applications for absentee ballots.
The protestor alleges that these wrongful denials have deprived voters of their right to cast
absentee ballots, thus, casting doubt on the apparent results of the election.
A. Wrongful Reiection of Absentee Ballots — All Required Information
Democratic Party volunteers reviewed absentee ballot container -return envelopes ("absentee
envelopes") in counties throughout the state. Some counties denied the Democratic Party its
right to inspect absentee envelopes under North Carolina law and Numbered Memo 2016-25,
thereby denying the Party and the protestor an opportunity to identify other absentee envelopes
that would have met the criteria for Exhibits A-1 and A-2.
The absentee envelopes associated with the voters listed in Exhibit A-11 appear to have all
required fields completed and should have been approved by the Board for counting. Based on a
review of data uploaded to the State Board website (hereinafter, "SEIMS data"), these voters'
ballots were not accepted. These ballots should be approved and counted.
The absentee envelopes associated with voters listed in Exhibit A-2 appear to contain all
required voter and witness information, except that some of the information was entered outside
the prescribed field, and some of the witness address omit city, state, and/or zip codes.
To the extent these denials resulted from the failure of your county board to individually review and vote on each
absentee ballot recommended by staff for disapproval, that would provide an additional basis for a protest under the
State Board's directive that "the board must individually review all ballot envelopes that: (1) have been
recommended for disapproval by staff ...." Numbered Memo 2020-25 at 5.
_ z For ease of transmission, the Exhibits are provided in PDF format. Counsel will provide the native Excel files
upon request.
State law does not require a container -return envelope to be deemed deficient if a voter, witness,
or assistant provides information or a signature outside of the prescribed field.3 The only
requirement is that the voter and witness supply the required information on the envelope itself,
and that the County Board be able to identify which signature belongs to the voter and which
signature belongs to the witness/assistant, respectively. Based on a review of the SEIMS data,
however, these voters' ballots were not accepted.
Moreover, state law and State Board guidance are clear that if an absentee envelope is missing
the witness's city, state, or ZIP code, the County Board cannot invalidate the envelope and
should, instead, determine the correct address.' Even if both the city and ZIP code are missing, a
County Board must determine whether the "correct address can be identified" before rejecting
the ballot.' Specifically, County Board staff must use a tool —such as SEIMS, a county GIS
website or office, or a similar tool —to look up the witness's or assistant's name and partial
address and find a match.
These ballots, therefore, should be counted.
B. Wrongful Rejection of ,Absentee Ballots — "Received After Deadline"
Numbered Memo 2020-22 requires County Boards to "conduct research to determine whether
there is information in BallotTrax that indicates the date [the ballot] was in the custody of the
USPS" and, further, to "conduct research with the USPS or commercial carrier to determine the
date it was in the custody of USPS or the commercial carrier."6
Exhibit B-1 lists voters who have a BallotTrax scan on or before November 3 but are marked as
"Received After Deadline." Under Numbered Memo 2020-22, these voters' ballots must be
counted.
Exhibit B-2 lists voters whose ballots were received no later than November 5, including some
received by November 3, which are also marked as "Received After Deadline." A ballot that is
received by November 3 must be counted. Moreover, it is implausible that a ballot received on
November 4 or November 5 was not sent by November 3. Please re -review the ballot envelopes
for any indicia of when the ballots were sent and, pursuant to Numbered Memo 2020-22, please
"conduct research to determine whether there is information in BallotTrax that indicates the date
[the ballot] was in the custody of the USPS" and "conduct research with the USPS or
commercial carrier to determine the date it was in the custody of USPS or the commercial
carrier." 7
C. Wrongful Rejection of Absentee Ballots — "Self -Reported Having Submitted Cure
Certifications"
s See Numbered Memo 2020-19 (Aug. 21, 2020, rev. Oct. 17, 2020).
a G.S. § 163-231(a)(5); Numbered Memo 2020-19 (Aug. 21, 2020, rev. Oct. 17, 2020) at 2-3 n. 3; Numbered Memo
2020-29 (Oct. 4, 2020).
'Numbered Memo 2020-29 (Oct. 4, 2020) at 1.
'Numbered Memo 2020-22 (Sept. 4, 2020) at 2.
Numbered Memo 2020-22 (Sept. 4, 2020) at 2.
-2-
Exhibit C lists voters who told Democratic Party volunteers that they had submitted cure
certifications. Based on a review of the data, these voters' ballots were not accepted. These
ballots should count, provided that the voter submitted a valid cure certification.
D. Wron ful Reiection of Absentee Ballots — "Voters' Status Changed from `Acce ted' or
'Accepted -Cured' to a Re'ected Status"
Some County Boards appear to have engaged in the impermissible practice of re -reviewing
absentee ballot container -return envelopes after they had been accepted. Section 163- 230.1(e)
provides the procedure for a County Board's review and acceptance of absentee ballot
envelopes:
At its next official meeting after return of the completed container -return envelope with
the voter's ballots, the county board of elections shall determine whether the container -
return envelope has been properly executed. If the board determines that the container -
return envelope has been properly executed, it shall approve the application and
deposit the container -return envelope with other container return envelopes for the
envelope to be opened and the ballots counted at the same time as all other container -
return envelopes and absentee ballots.
(emphasis added). The law provides no mechanism for the County Board to rescind an absentee
envelope acceptance, and a decision to accept is thus final. Id.; see Arnett v. North Carolina St.
Bd. of Elections, No. 20 CVS 12454 (Wake Co. Super. Ct., filed Oct. 5, 2020) (Order Denying
Temporary Restraining Order) at 6 ("The decision of the board on the validity of an application
for absentee ballots shall be final." (citing N.C.G.S. § 163-230. 1 (f))); Id., State Board Brief at
12-13. The only time such a decision may be reviewed is in the event of an election contest, not
a voter challenge. N.C.G.S. § 163-230.1(f) ("The decision of the board on the validity of an
application for absentee ballots shall be final subject only to such review as may be necessary in
the event of an election contest."); see Arnett at *6 (review of absentee envelope acceptance
decisions is only proper "in the event of an election contest" (citing N.C.G.S. § 163-230.1(0));
N.C.G.S. § 163-278.300 (defining "an election contest filed under Article 3 of Chapter 120 of the
General Statutes or G.S. 163-182.13A").
A County Board's decision to rescind acceptances of absentee ballot envelopes and issue cure
certifications and new ballots any number of days or weeks after a voter has been informed their
ballot has been accepted and counted runs afoul of State Board directives and threatens to
disenfranchise voters. Numbered Memo 2020-25 makes clear: "voters must be contacted within
one business day of when staff identify the deficiency. It is not permissible to wait for the
absentee board meeting to contact the voter about a deficiency." Id. at 4. Numbered Memo
2020-25 further directs elections officials to follow Numbered Memo 2020-19 in reviewing
absentee ballot envelopes. Id. That Memo reiterates: "[i]f there are any deficiencies with the
absentee envelope, the county board of elections shall contact the voter in writing within one
business day of identifying the deficiency to inform the voter there is an issue with their absentee
ballot and enclosing a cure certification or new ballot." Numbered Memo 2020-19 at 3. A
County Board would violate these explicit requirements by taking absentee envelopes that
already received final approval and then rescinding that decision.
-3-
Exhibit D lists voters who returned mail ballots, had those ballots listed as "Accepted" or
"Accepted -Cured," but had that status changed to a status that resulted in their mail ballot not
being accepted. To the extent that these voters had their ballots approved by the County Board at
a meeting and then had that approval rescinded, these voters' ballots should be counted for the
reasons described above.
Provisional Ballots
The exhibits below describe voters who cast provisional ballots that are listed as "Pending" or
"Not Counted," according to the most recent data on the State Board's website. For the reasons
set forth below, these voters' provisional ballots should be "Approved" or "Partial" counted.
E. Wron f�jection of Provisional Ballots
Exhibit E-1 lists provisional voters who reside in and are registered to vote in your county,
according to information reflected in the Provisional Ballot Application. These ballots should be
approved and counted in all statewide races and any other races for which they are eligible. See
Numbered Memo 2018-05 §§ 1 ("In determining whether to count a provisional ballot in full, in
part, or not at all, county boards should be guided by the following ... 1. The applicant must be a
registered voter in the county."); 1.4 ("A registered voter who has moved within the same county
but had not previously updated his or her registration may vote in the new precinct, the old
precinct or a central location designated by the county board."); 1.5 ("If a voter submits a
Provisional Voting Application simply because he or she presented in a precinct other than his or
her proper precinct, the county board should approve the application and count all votes cast in
contests for which the voter is eligible."); 1.6 ("If it can be determined after Election Day and
before the canvass that the applicant had properly registered ... before the voter registration
deadline, the county board shall approve the application and count all votes cast in contests for
which the voter is eligible." (internal citation omitted)).
Exhibit E-2 lists voters who have maintained continuous residence in your county since
registering to vote, even though they were removed from the voter rolls. These voters signed
attestations, which were provided to your County Board. Some County Boards refused to
consider this information, in contravention of Numbered Memos 2016-25 and 2018-5.
Given this corrective information, these ballots should be approved and counted. See Numbered
Memo 2018-05 § 1.3 ("If the voter has maintained continuous residence in the county, the voter
remains eligible to vote ... The voter's written or verbal affirmation regarding their continuous
residency is sufficient to confirm ongoing eligibility, absent evidence to the contrary, and the
county board must approve the provisional application."); Numbered Memo 2016-25
("Corrective information may be delivered by mail, email, facsimile, commercial carrier, or
private carrier (including attorneys, campaign staff, relatives, etc.)."). If you need an additional
copy of the attestation, Counsel can provide it.
Exhibit E-3 lists provisional voters who changed their names since registering to vote but who
are nonetheless registered to vote in your county. These voters signed attestations, which were
provided to your County Board. Some County Boards refused to consider this information, in
contravention of Numbered Memos 2016-25 and 2018-5.
-4-
Given this corrective information, these ballots should be approved and counted. See Numbered
Memo 2018-05 § 1.6 (advising election officials to check whether the voter is "registered in a
different name"); Numbered Memo 2016-25 ("Corrective information may be delivered by mail,
email, facsimile, commercial carrier, or private carrier (including attorneys, campaign staff,
relatives, etc.)."). If you need an additional copy of the attestation, Counsel can provide it.
Exhibit E-4 lists provisional voters who self -reported timely registering to vote or attempting to
register with your County Board or another government agency. Given this corrective
information, these ballots should be approved and counted. See Numbered Memo 2018-05 § 1.1
("If... the provisional applicant made an attempt to register to vote at the DMV ... on or before
the voter registration deadline, the provisional application must be approved ...."); id. § 1.6
(requiring approval if the applicant "timely attempted to register before the voter registration
deadline"). If you need information from another government agency to verify a provisional
voter's registration status, you should immediately obtain that information.
Exhibit E-5 lists provisional voters who live in your county who voted provisionally due to an
"Unrecognized Address." Look -up tools have verified that these addresses are in your county.
Given this corrective information, these ballots should be approved and counted. If you need
information from another source in order to verify a provisional voter's address, you should
immediately obtain that information. See Numbered Memo 2018-05 (advising that "county
boards are encouraged to keep in mind the core objective is to research the applicant and
ultimately count votes cast in races for which the voter was eligible, if any").
Exhibit E-6 lists voters who were required to cast provisional ballots during the one -stop
absentee period, for reasons other than "ID -required" or "voter already voted." These voters
should have been provided an opportunity to register or re -register (to update an address).$ The
failure to do so was an error of the election official, not the voter. And election official error is
not a basis to reject an otherwise valid vote.
Lastly, please find attached an affidavit attesting to the research and the processes of examining
data published by the State Board of Elections from which the affiant, acting in behalf of the
North Carolina Democratic Party, concluded that such errors and irregularities deprived voters of
the ability to have their votes cast and counted and thus casts doubt upon the apparent results of
the election. The protestor does not contend that there are errors in counting or result tabulation
of votes as such described in Numbered Memo 2020-25 September 22, 2020. Numbered Memo
2020-25 defines tabulation or counting as that which "occurs on Election Day and is the result of
the scanning that has taken place."
8 N.C.G.S. § 163-82.6A; N.C.G.S. § 163-166.11(3); N.C.G.S. § 163-227.2(g).
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