John Locke Update / Research Brief

Why are the Democratic Party’s lawyers trying to stop a county election board from following the law?

posted on in City & County Government, Civil Society, Law & Regulation, Legal Update, Local Government
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On Oct. 28, attorneys representing the North Carolina Democratic Party sent a letter to the New Hanover Board of Elections. The Democrats’ attorneys told the board they learned the board had rejected 26 absentee ballots because they had been handed in by third parties.

In other words, the ballots were handed in by persons other than the voter or an authorized person under the law. The lawyers told the board that those rejected ballots “should be counted immediately,” according to a “Numbered Memo” from Karen Brinson Bell, director of the North Carolina State Board of Elections (SBOE).

Ballot harvesting

In 2018 North Carolina learned that voter fraud is real. While many had expected it for a long time, the race for the U.S Congressional seat from the 9th District was embroiled in a scandal. Mark Harris, the Republican candidate, had won by some 900 votes after the election ended, but evidence soon came out that someone had “harvested” Absentee Ballots (ABs) in the race.

Harvesting refers to any of a number of techniques whereby a third party manages control over a voter’s ballot. Examples of ballot harvesting include:

  • Ballot harvesters go door-to-door and to nursing homes, hospitals, etc., first making sure ABs are requested, and then offering the voters assistance in filling out the ballots. The most important part is for these third parties to take possession of the ballots, because at that point they can then control whether they are delivered or not.
  • In other instances, the ballot harvesters simply pay voters to fill out their ballots the way the harvesters prefer — and in their presence, as they watch. Then these third parties take possession of the ballots to ensure their delivery.
  • Other instances of ballot harvesting occur in a workplace or university environment or anywhere in which control or pressure is exercised against voters as they fill out their ballots.

Many instances of ballot harvesting have been reported. The instances surrounding the 9th Congressional race illustrated some of these techniques. The perpetrator in that case was McCrae Dowless, who appeared to have been a bipartisan ballot harvester.

The case against Dowless centered on the inappropriate handling of ABs. As news reports pointed out, “North Carolina law makes it illegal for anyone other than the voter or a close relative to handle a mail-in ballot.”

An “agreement” to ignore protections in state law against ballot harvesting

Thanks to lawsuits brought against the NC SBOE by the law firm that Gov. Roy Cooper used in his 2016 election litigation with former Gov. Pat McCrory (and which handled former Secretary of State Hillary Clinton’s false Steele Dossier that she paid for), a “settlement” was agreed to that upended longstanding laws in North Carolina designed to protect against ballot harvesting. But it appears that at least one county board of elections “didn’t get the memo.”

All 100 county boards of elections in North Carolina, including the New Hanover County Board of Elections under director Rae Hunter-Havens, are five-member boards comprising three Democrats and two Republicans. Board employees, however, are professionals who typically work through administration changes. Hunter-Havens is such a professional, having worked for the board since 2011 in a lower capacity. She could hardly be expected to understand Raleigh-speak, when the law says one thing but a memo from an unelected bureaucrat says the opposite.

State law in NC General Statute §163-226.3(a)(5) declares it a felony for anyone other than the voter (or other authorized person) to take possession of another voter’s ballot for delivery or return to a county board.

How do the NC Democratic Party’s lawyers account for that law? Their letter explained:

According to observers, 26 ballots have been rejected in New Hanover County because the ballots were returned by a person who is not a member of the voter’s family. Based on the law and guidance described below, these ballots have been rejected incorrectly and should be counted immediately.

The State Board is clear that the “county board shall not disapprove an absentee ballot solely because it was delivered by someone who was not authorized to possess the ballot,” such as someone other than the voter’s near-relative delivering the ballot. Further, failure to comply with the “delivery of an absentee ballot by a person other than the voter, the voter’s near relative, or the voter’s legal guardian [] is not sufficient evidence in and of itself to establish that the voter did not lawfully vote their ballot.”

The Democrats’ lawyers admit those ballots that were possessed by “someone who was not authorized to possess the ballot” — a clear violation of the law, and a Class I felony to boot — but demand under a memo signed by an unelected bureaucrat that those ballots should still be counted, immediately.

Of course, Brinson Bell’s memo allowing unauthorized third parties delivering ballots they are not allowed by law to possess is part of the tangled election litigation brought by Gov. Cooper’s former lawyer.

McCrae Dowless, it turns out, was ahead of his time. Had he simply plied his trade in 2020 instead of 2018, he would have been operating entirely consistent with the “memo” (though not the law).

Other state election protections overturned by a bureaucrat’s memo?

For a larger listing of North Carolina’s election laws that appear to be contradicted by recent memos from SBOE director Brinson Bell, see the table below (click for a larger size).

Dr. Donald van der Vaart earned a B.S. in Chemistry from UNC Chapel Hill, an M.S. in Chemical Engineering from N. C. State University, a Ph.D. in Chemical Engineering from Cambridge University and a J.D. from N. C. Central University. ...

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