by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
This article is Part One of a series of articles highlighting the findings from a forthcoming report from the Civitas Center for Public Integrity at the John Locke Foundation, “What Happened In 2020? How 2020 Altered North Carolina Elections and What We Can Do to Fix It.” Part Two will cover how the North Carolina State Board of Elections (SBE) and county elections boards suppressed election observers. Part Three will examine the surge of mail voting in 2020. Part Four will review voting irregularities, post-election audits, and what those audits do not cover.
The State Board of Elections (SBE) and its executive director, Karen Brinson Bell, did several things to undermine election security before and during the 2020 election. They approved problematic voting technologies, sought the power to loosen election security laws, and joined a collusive lawsuit settlement that undermined two of those laws.
North Carolina has struggled with touchscreen voting systems, in which voters choose their candidates on the machine’s interactive screens.
In 2002, touchscreen voting machines in two North Carolina counties lost 436 early voting ballots due to a software glitch. A touchscreen voting system lost 4,530 ballots in Craven County in 2004. In 2018, voters in Guilford County reported that the touchscreen voting machines altered their votes.
To address those problems, the General Assembly passed a law requiring all election systems to produce a paper ballot. In response, the SBE moved to certify a ballot marking device (BMD), a touchscreen voting system that prints a receipt-style paper ballot that is then fed into a tabulator.
There are several problems with BMDs. First, official tabulated votes are not the choices printed on the ballot but are embedded in a QR code that a human being cannot read. Relatedly, voters are unlikely to notice errors made by or on BMDs. A University of Michigan study found that “voters missed over 93% of errors on ballots that they filled out using BMDs.” BMD systems make it more difficult to audit election results and detect problems within the election systems.
Despite those problems and what one elections board member called the “submission of inaccurate and misleading information” by the system’s manufacturer, the board approved the use of the company’s BMD on a 3-2 vote in 2019.
SBE Executive Director Karen Brinson Bell used the Covid-19 pandemic to push for changes in North Carolina’s election process. In a pair of memos to the General Assembly in the spring of 2020, she requested increased funding and several changes in election law.
The General Assembly provided the money and granted most of Brinson Bell’s requests for the 2020 election in bipartisan legislation. The changes included reducing the witness requirement for mail ballots, easing rules for requesting mail ballots, and making it easier for county election boards to hire election day workers who would otherwise not be qualified to serve.
Brinson Bell also sought the power to alter election laws unilaterally by expanding her emergency powers. Emergency powers are designed for the SBE to respond quickly to events that happen so suddenly that the General Assembly cannot react in time with changes in law, such as a hurricane flooding voting places. However, the legislature was still in session while Brinson Bell sought those powers.
Fortunately, the attempt was stopped by the Rules Review Commission (RRC), the regulatory body tasked with making sure that proposed regulations follow the law. The commission unanimously rejected the attempted change, with Commissioner Tommy Tucker harshly critiquing the attempt:
“There is a gross misunderstanding of what the RRC purview is … or it is a devious stunt by the Board of Elections. I’m concerned this is an end-run around the public, the General Assembly, and the courts.
In the meantime, North Carolina was subjected to a host of election-related lawsuits. Most never made it to the trial phase. One federal case from Democratic attorney Marc Elias made it to a judge’s decision, however. The court ruled against Elias on almost every challenge to North Carolina election law and procedures except that the judge ordered the state to create a uniform process for fixing problems with mail ballot return envelopes, such as a voter’s signature in the wrong place.
Within a few weeks of that decision, the SBE and the North Carolina Department of Justice (NCDOJ) gave Elias the win he could not achieve in the courtroom through a collusive lawsuit settlement.
In a memo to SBE board members ahead of a September 15 meeting, the NCDOJ recommended settling several lawsuits, including five from Elias. The NCDOJ claimed, on scant evidence, that the SBE would likely lose at least some of those lawsuits. The state board then voted to authorize Brinson Bell and her staff to settle with Elias.
The settlement resulted in the deadline for mail ballots being pushed back to nine days after the election. Another part of the settlement, which effectively ended the witness requirement for mail ballots, was later reversed by a federal judge.
Judge Bryan Collins cut the legislature out of the process when he approved the settlement on October 2, even though they were also defendants in the case.
There is some good news about those problems. The Rules Review Commission worked as intended to prevent an executive agency (the SBE) from overstepping its legal boundaries. Also, Gov. Roy Cooper signed a budget in 2021 that included a provision that should prevent collusive lawsuit settlements like the one between the SBE and Marc Elias in the 2020 election.
That leaves the matter of BMDs. The General Assembly should pass legislation phasing out their use at least by the end of the decade, except as required by the Americans with Disabilities Act. The legislature could affect a faster phaseout by including grants to the eleven counties that use BMDs to help them replace their recently purchased machines.