State elections board members resign over legal settlement, sparking controversy

Two Republican members of the North Carolina State Board of Elections resigned on Sept. 23. Sparked by a previous settlement, their decision comes at a critical time, as over 300,000 North Carolinians have already cast their votes for the November election. 

On Sept. 25, the N.C. Republican Party announced it had submitted its nominations for the replacement members and encouraged Gov. Roy Cooper to appoint them as quickly as possible. This has yet to occur.

The controversy began with a lawsuit filed by  the North Carolina Alliance for Retired Americans against the NCSBE in August. The alliance said it filed the lawsuit because it believed the state’s requirements for mail-in voting were burdensome and would force older voters to choose between protecting their health and casting ballots. 

The two members who resigned, Ken Raymond and David Black, both cited many issues with the settlement in their resignation letters.

Provisions of the settlement

The settlement includes three main provisions that would adjust the state’s approach to absentee voting in the upcoming election upon approval. 

In a statement, the board said the most common problem with absentee ballots is missing witness information. This was addressed by a measure to allow missing or incorrect witness and assistant information on an absentee ballot to be corrected by a sworn certification from the voter. The certification needs to affirm the voter returned their ballot for the November 2020 general election and will not vote more than once in the election. 

Raymond and Black both expressed distress that the voter witness requirement may be in jeopardy, and both cited that as a reason for their resignations. However, all board members agreed that the witness requirement should remain in place in the Sept. 15 meeting, and the settlement keeps it in place. 

The second key measure was the extension of the date by which mail-in ballots would be accepted for counting by the state from Nov. 6 to Nov. 12, provided they are postmarked on or before Election Day. The board said this mirrors the existing law for the acceptance of military and overseas ballots. 

The third key measure would require county board of elections staff to keep a log of who returns absentee ballots in person by orally communicating with those dropping off ballots and entering their information into a log. 

The NCSBE said this would not allow drop boxes for the return of absentee ballots. This would also require drop boxes for other items, such as voter registration applications, to have signage that indicates dropping off ballots is not allowed. 

Issues with the settlement and the board's response

Raymond and Black both claimed they were misled by the attorneys representing the Board of Elections, most notably when it came to proposed rule changes for witnesses of mail-in ballots. They also mentioned their distaste for the partisan nature of the board’s proceedings, on this matter and many others. 

“It is impossible to have true bipartisanship when both sides of the political aisle do not have the important and vital information needed to make the right decisions,” Raymond said in his letter. 

The settlement was approved unanimously by the board after the members spoke with lawyers from the office of N.C. Attorney General Josh Stein for nearly three hours in a closed session. Shortly after the resignations of Raymond and Black, the NCSBE held an emergency meeting. At the meeting, it released the minutes from the closed session, which show all members asking questions to the board's lawyers about what approving the settlement would mean. 

At the Sept. 25 emergency meeting, Damon Circosta, chairperson of the NCSBE, said claims made by Raymond and Black that they were misled, or did not have enough information on the settlement before they voted to approve it, were not true.

He said the discussion of the lawsuit was held in a closed session in order to preserve attorney-client privilege, which would be essential for the state’s abilities to reach the best possible settlement for the board and for the state’s voters. 

Circosta also said both Raymond and Black made unsubstantiated claims about what occurred during the closed session, which he said they did not have the right to do, since the attorney-client privilege in this case belongs not to individual members but to the whole board. 

He then provided a broader context to the board’s decision, saying the board made the decision to settle in order to provide voters with clarity on what the rules for casting their ballots are and with the certainty that their ballot will be received, tracked and authenticated.  

“As Chair, I sought consensus from all members and was pleased when we were able to unanimously agree to a motion that will help ensure the election process is secure, all eligible ballots will be counted, and that North Carolinians are safe when they are casting their vote,” Circosta said in a statement.

Ensuing partisan fallout 

The board’s decision to approve the settlement sparked a strong response from the N.C. GOP. In a statement, the party said the settlement would gut the absentee witness requirement, extend the acceptance of absentee ballots nearly a week past the statutory deadline and weaken protections against ballot harvesting. The NCSBE disputes these claims. 

State Republicans also claimed the measure was yet another attempt by Cooper to exercise complete partisan control over the board. 

There have been claims the state party applied significant pressure on Raymond and Black to resign. On Sept. 25, The News & Observer reported that in a Facebook post, Deb Black, the wife of one of the resigning members, said the party forced her husband David’s hand. 

“The GOP chairman neglected to mention that these resignations were not voluntary. They were told to resign,” she wrote in the post. “Sad times when republicans (sic) are firing intelligent and trustworthy republicans.”

This claim was refuted by Tim Wigginton, press secretary for the N.C. GOP, but the state’s Democratic Party said the Facebook post provides evidence that the state’s Republican leaders are acting in their own interests and not those of the voters. 

Dustin Chicurel-Bayard, director of communications for the N.C. American Civil Liberties Union, addressed concerns about how the settlement, the shakeup in the NCSBE and the resulting fallout will affect the November election. 

He said that though his organization could not comment on ongoing litigation, he believed there was a reasonable effort to reach a settlement quickly to provide voters with assurances about what the voting process in North Carolina looked like.

Chicurel-Bayard said the governor would likely fill the gaps on the board left by the resigning Republican members quickly, and that the NCSBE was not meant to be a partisan entity. However, he expressed concerns that rhetoric being exchanged may give voters pause in November. 

“The biggest fear is that political actors with partisan intent are trying to undermine people’s confidence in our elections, and that’s just dangerous for democracy,” Chicurel-Bayard said. 

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