Political leaders from both sides of the aisle in North Carolina are accusing each other of hurting the elections process after two Republican members of the state Board of Elections abruptly resigned this week.

The dispute comes down to the proposal to settle a lawsuit over absentee ballot rules. The two GOP members of the Board of Elections say they were misled about what would be in the settlement. But the chair of the board said they knew exactly what they were signing onto.

The three remaining members of the board, two Democrats and a registered independent, took the unusual step of releasing minutes from a closed-door session with lawyers that they say show the Republicans were fully informed.

What You Need To Know

  • The two Republican members of the NC Board of Elections resigned, saying they were misled about a lawsuit settlement

  • The remaining board members released confidential documents they say show the GOP members knew what they were voting on

  • The central issue involves witness requirements for mail-in absentee ballots

  • More than a million voters in North Carolina have requested mail-in ballots for the Nov. 3 election

The coronavirus pandemic has led to more than a million voters in North Carolina to request absentee ballots, an unprecedented number in the state.

What started all this?

The North Carolina Alliance for Retired Americans sued the state and the North Carolina Board of Elections in August to, among other things, get rid of the witness requirement for mail-in absentee ballots, extend the deadline for counties to receive the ballots, and give voters a way to fix any potential problems with their mail-in ballots.

The state Board of Elections met in a three-hour closed session with lawyers from the North Carolina Department of Justice on September 15 to discuss how to settle the lawsuit.

The board voted to release the minutes of that meeting Friday, along with a confidential memo from state DOJ lawyers about the suit.

The minutes show the five-member board voted unanimously to give the board’s executive director and attorneys the power to settled the lawsuit as long as the agreement achieved three things:

  • Ballots postmarked by election day have until September 12 to be delivered to county election offices.
  • “Witness and assistant requirement – must remain in effect and in full force and that the voter herself has the opportunity to cure any deficiencies in voter’s attestation or witness portions of container-return envelope. The assistant deficiencies may also be cured.”
  • “No unmanned ballot drop boxes allowed.  Maintain log – clerk asks for name of person returning ballot, and verbal acknowledgement of relationship to voter that they are voter or near relative. Then the clerk writes down CIV number on the log. Then if person returning is not near relative or voter, clerk will take down name, address, relationship to voter, and then we will accept receipt of the ballot and keep that info available for any investigation.”

What does the agreement say?

The settlement, which still must be approved by a judge, extends the deadline for mail-in ballots to be received by the counties to 5 p.m. on Nov. 12, nine days after the election.

The agreement would also change the way counties handle incomplete ballots, and what’s most at issue are the witness requirements.

According to a board of elections news release, “The State Board will allow a voter whose witness does not fill out required fields on the envelope to correct that mistake through an affidavit of the voter.”

If a voter did not sign, or signed in the wrong place, or if a witness or assistant did not complete the form by printing their name, address or sign the form, the voter can submit an affidavit to the county instead of casting a new ballot.

Republican leaders point to the changes to the witness requirement as a big problem, and they argue that this essentially eliminates the witness requirement for mail-in ballots. The state legislature already reduced the witness requirement from two to one as they were considering ways to make voting safer during the pandemic.

Why do the Republicans say they resigned?

The two Republican members on the board, David Black and Ken Raymond, say they were misled about what would be in the agreement.

In his letter of resignation, Raymond said, “Attorneys from AG Josh Stein’s office did not advise us of the fact that a lot of the concessions made in the settlement have already been denied in a prior case by a federal judge and another case by a state court three-judge panel.

“Secondly, we were led to believe that refusal to make a deal that included the extension of mail-in absentee ballots, past the legal acceptance date, would also result in the elimination of the one-witness requirement for residents voting absentee by mail.”

Both former GOP members on the board said attorneys told them that it would be better to settle now, because a judge could eliminate the witness requirement altogether.

The News & Observer reported the two Republicans resigned after a call with a lawyer for the state GOP who told them party leaders were “very unhappy.”

In a Facebook post, Black’s wife said her husband’s resignation was “not voluntary,” according to the N&O.

So, what happened in the closed session?

The closed session lasted about three hours. The three remaining board members voted to release the minutes of that meeting Friday.

In a statement read during a board of elections meeting Friday, chair Damon Circosta said, “All five members of the Board engaged in a robust and deliberate discussion about possible settlement options. 

“We were aided in our deliberations by a memo from the Attorney General’s office as well as a memo from our agency counsel. These documents laid out considerations –for and against – settlement of these cases.”

All five members agreed to settle the case. The minutes to show in-depth discussion on each point in lawsuit and appear to show consensus among the board members.

You can read the documents here:

What does the GOP say?

In a press conference Friday, top Republicans said the agreement went too far and allowed a legal settlement to rewrite the voting law.

State Senate Leader Phil Berger accused the attorney general and the governor, both Democrats, of “unethically colluding with national Democrats” to change the rules on voting by mail.

The agreement, Berger said, “subverts and effectively eliminates the witness requirement.”

What do the Democrats say?

“Voting is a sacred right and the state board is working to make it secure and accessible,” Gov. Roy Cooper told reporters Friday after making an appearance to get his flu shot.

“It’s wrong for politicians to try to use politics to undermine the election,” he said.

In a statement, Attorney General Josh Stein said, “These Republican leaders are lying about the consent decree to create mistrust in our elections. That’s disgraceful and un-American. They should care more about helping people stay safe, healthy, and have their vote count than they do about power.”

Why does this matter?

North Carolina has come into focus nationally as a battleground in the presidential election. Polls show Donald Trump and Joe Biden virtually tied for the state’s 15 Electoral College votes.

More than a million people of North Carolina’s more than 7 million registered voters have requested absentee ballots for the General Election. More than half of the absentee ballot requests are from registered Democrats.

President Trump has tried to sow doubt about mail-in voting. At one point he encouraged voters in North Carolina to vote twice, once my mail and again in person, which would be a felony.

Everyone involved agrees they want North Carolinians to have faith in the election system. But state GOP leadership pointed to the case of the 9th Congressional District, when a Republican operative was accused of illegally harvesting ballots in 2018 and the seat in Congress was left open for a year while the state investigated and ran a new election.

In his statement Friday, the chair of the elections board said, “Voters deserve to have full confidence in their election process. To ensure that voters have that confidence, they deserve all of the facts when the impartiality of their election administration and security are questioned in the public sphere.”

What happens next?

The settlement is not a done deal. A Wake County judge must still approve the deal.

Republican leaders in the state said they are looking at legal options before the judge considers the agreement, which could be as early as next week.

In the meantime, the North Carolina GOP still has two empty seats on the Board of Elections. Party leaders released their lists for both seats Friday.

“The North Carolina Republican Party has submitted our official list of nominees and fully expect Governor Cooper to quickly fill the vacancies on the North Carolina Board of Elections,” said NCGOP Chairman Michael Whatley.

For his part, the governor says he will appoint the two Republicans to the board as quickly as possible.