It Is About Time To Certify the NC Chief Justice Race | Eastern North Carolina Now

Publisher's Note: This post appears here courtesy of the Civitas Institute. The author of this post is Andy Jackson.

    After much acrimony and protest, Paul Newby still stands about four hundred votes ahead of incumbent Cheri Beasley in the race for chief justice of the North Carolina Supreme Court. Once the final few counties complete their recounts today, the State Board of Elections must consider protest appeals from both campaigns before certifying the election.

    The News & Observer's unjust protest against Newby's protest

    As seen in this appeal of a rejected protest to the Duplin County Board of Elections, the Newby campaign is seeking to have ballots that they believe have critical failures (such as missing no voter or witness signature or missing voter or witness information) removed from the vote totals.

    The Raleigh News & Observer took issue with one aspect of the Newby campaign's protests:

• He noted that outside the challenge process, white and Black voters already see disparities. State election data, in fact, show that Black voters statewide have had their ballots rejected for this election at more than three times the rate of white voters.
• But that doesn't explain why Black voters are also bearing the brunt of the campaign's challenges once they're accepted.

    The N&O is wrong. The difference in the ballot rejection rate by race by boards of elections does explain why there would be a similar difference by race in similarly problematic ballots that county boards of elections eventually decided to accept. In fact, the N&O notes in another part of the article that the variance by race in the Newby challenges is 2.7, which is obviously less than the "more than three times" the difference between the rate at which elections officials rejected of the ballots of black voters compared to white voters.

    You would expect the results of Democrat-controlled county BOEs not accepting problematic ballots and the Newby Campaign protesting the counting of problematic ballots to be so similar if either both were discriminating against black voters or if neither were discriminating against black voters. I dealt with the accusations that the State Board of Elections (SBE) was irredeemably racist in its handling of absentee ballots from black voters in late October, finding that the difference was not due to racial discrimination, but how often ballots were being submitted without the required information needed to legally count a ballot.

    Catawba College political science professor Michael Bitzer attributed that difference to some voters not being familiar with the mail voting process (theGriot):

• We're seeing already a lack of familiarity with the process, whether it's signing the ballot or having the witness information completed. There tends to be a greater number from voters who were previously in-person voters. If you look at the numbers [from Sept. 14], the ballots denied due to incomplete witness information, 55 percent of those voters had voted in person in 2016.

    So, with data indicating that there is no variation based on race between Newby campaign protests and board of elections rejections of ballots, and no evidence that the Newby campaign was targeting the ballots of black voters, the N&O's implication that it was targeting black voters is irresponsible at best.

    What would change if protests from both campaigns were honored? Not much.

    I wrote on November 23 about problems with the Beasley campaign's protests seeking to get county boards of elections to reverse their decisions on ballots they had not counted:

• The Beasley campaign's list of protested ballots is biased in favor of Democrats. Beasley is a Democratic candidate, so why should this be a concern? There are two reasons. The first is that it makes plain that the Beasley campaign's claim that they are seeking to ensure that "every voice is heard" is a lie.
• The second reason is that, if county boards of elections accept large numbers of previously not counted ballots from Democrats based on the Beasley campaign's protests while not accepting previously not counted ballots from Republicans that have similar problems, those boards run the risk of not affording voters equal protection of the law based on their political affiliation (a claim at the heart of two successful redistricting lawsuits last year).

    As noted above, there is no similar equal protection problem with the Newby protests.

    But what would happen if county boards of elections agreed to review all their rejected and problematic accepted ballots? Would that change enough votes to affect the race?

    The Forsyth County Board of elections did just that last week (Winston-Salem Journal):

• But [director of elections Tim] Tsujii said that once it was determined that there were provisional ballots that should have been counted, the elections staff re-checked all of the hundreds of rejected provisional ballots, not just the ones identified by the Beasley campaign.
• Tsujii said the cases of double voting were discovered on Sunday as workers tried to finalize voting history records.
• That check found that 11 voters had voted twice: In 10 cases, the voter had both voted in person and had turned in an absentee ballot...
• ...With 11 ballots subtracted from the totals and 18 added on Monday, the needle didn't budge much on the Beasley-Newby contest in Forsyth County. The revised numbers found that Beasley improved her margin by only one vote in Forsyth, although both candidates picked up a handful of votes.

    Forsyth is one of the most populous counties in North Carolina, so it is highly unlikely that similar reviews in other counties would alter the outcome enough to overturn Newby's 400+ vote victory.

    As appeals of the Beasley and Newby campaigns' complaints reach the SBE, the board has three choices:

• Accept one set of appeals and reject the other, almost guaranteeing a lawsuit from one of the campaigns.
• Order a full review of rejected ballots and problematic accepted ballots in every county, consuming county board of elections resources for a marginal change in the outcome like we saw with the Forsyth County review.
• Reject the appeals from both campaigns and certify the outcome of the recount.

    With the recount so far expanding Newby's lead and evidence indicating that overturning prior county board of elections decisions on not counting some ballots would not impact the outcome of the election, the SBE should certify the election after the recount is completed.