NC’s 2020 election defined by legal battles over absentee ballot rules

Final state of rules decided by U.S. Supreme Court less than a week before Election Day

Marc Elias questions a witness during a public evidentiary hearing on the 9th congressional district voting irregularities investigation Tuesday, Feb. 19, 2019, at the North Carolina State Bar in Raleigh, N.C. (Travis Long/The News & Observer via AP, Pool)

RALEIGH — From early in election season to the very last week, North Carolina’s State Board of Elections, run by Democratic Gov. Roy Cooper’s appointees, and the state’s legislature, run by Republicans, have fought a battle over multiple voting rules, leading to confusion for Tar Heel citizens trying to figure out how to vote during an already confusing election.

After a ballot-harvesting scandal in the 2018 N.C. Ninth Congressional District elections, a bipartisan majority agreed to rules that tightened up absentee ballot rules in the state. In late October of 2019, the legislature passed S.B. 683, Combat Absentee Ballot Fraud, 49-0 in the Senate and 111-1 in the House.

The law increased penalties for violations of absentee-voting rules and added more restrictions on who could request absentee ballots and how they were to be filled and returned.

Marc Elias, a lawyer who represented Democratic candidate Dan McCready in the Ninth Congressional race, ultimately helping get the election results tossed out because of ballot harvesting by Republicans, ironically then sued the state in May of 2020 to loosen the rules that were put in place because of that harvesting.

Elias most notably demanded that no witness signatures be required on absentee ballots and that the provision that ballots need to arrive at boards of election by Nov. 6, three days after voting has ended, be extended to nine days after the election.

“North Carolina’s election officials continue to enforce unnecessary and burdensome mail ballot restrictions that threaten to disenfranchise many North Carolina voters, and are especially ill-suited to meet the unique challenges posed by the ongoing public health emergency,” Elias and the other attorneys in the case stated in the introduction of their lawsuit.

Apart from the lawsuit, legislative leaders of both parties agreed that the rules in S.B. 683, as well as previous absentee laws on the books, may be too onerous for an election where a large percentage of voters would mail in their ballots. So another bill, H.B. 1169, Bipartisan Elections Act of 2020, was then put together to specifically address the unique issues faced in the 2020 elections. H.B. 1169 was passed on June 11, 2020, 37-12 in the Senate and 105-14 in the House. The compromise loosened some rules, like instead of two witness signatures for an absentee ballot, H.B. 1169 only required voters to provide one witness.

Elias’ lawsuits seeking further loosening of absentee rules proceeded, but on Aug. 4, a federal judge, William Osteen, shot down the suit.

“These partisan lawsuits undermine trust in elections by seeking to legalize ballot harvesting and make it easier to commit absentee ballot fraud,” Sen. Ralph Hise (R-Mitchell), who co-chairs the Senate Elections Committee, said at the apparent legal victory. “We’re glad a federal judge drew the line on these dangerous attempts to undermine election security.”

But this was not the end. On Sept. 22, the Democrat-run board announced they had reached a settlement in the lawsuit with Elias — a settlement that gave Elias and the left-leaning activist groups he worked for exactly what they were after by striking the witness requirement and extending the absentee ballot receipt date to Nov. 12. The NCSBE immediately put forward new guidelines that complied with this negotiated settlement, and the two Republican members of the board, claiming they were tricked into voting for the changes, resigned in protest.

Legislative Republicans just as quickly filed federal and state lawsuits, claiming a conflict of interest with a Democrat-run board “negotiating” with a Democrat Party lawyer to change state election law without having to go through the Republican-run N.C. General Assembly.

“Roy Cooper and Josh Stein are attempting to gut the integrity of North Carolina voting laws by colluding with partisan Democratic attorneys from Washington D.C. while ballots are already being cast in this Presidential Election,” Speaker Moore said at the time. “These actions are utterly lawless and we are reviewing them to assess all of our legal options.”

In subsequent court decisions, Republicans appeared to be winning the legal battle, getting the witness requirement reinstated and having a judge denounce the settlement by the NCSBE. But then an Oct. 20 Fourth Circuit loss on the ballot receipt deadline, resulted in the Republicans immediately needing to take the case to the U.S. Supreme Court, which they did on Oct. 22.

On Oct. 28, the Supreme Court voted 5-3, however, to allow the NCSBE’s decision, extending the ballot deadline from three to nine days after the election, to stand. Chief Justice John Roberts and Associate Justice Brett Kavanaugh, seen as the new swing voters on the court, both sided with the more-liberal justices, and newly sworn-in Justice Amy Coney Barrett sitting out the case. 

“A huge win tonight for NC voters at SCOTUS, which upheld the state board elections effort to ensure that every eligible vote counts, even in a pandemic,” tweeted North Carolina Attorney General Josh Stein on hearing the decision. “Voters must postmark their ballots by Election Day but now have certainty their vote will be counted. Let’s Vote!”

While the battle over the rules governing the 2020 election was decided less than a week before Election Day, the Republicans are not done fighting, and appear ready to continue the battle in the coming weeks. They are especially focused on how the negotiated settlement with Elias was reached and want Stein to provide documents they’ve requested on the meetings.

“Our state’s top law enforcement officer [Josh Stein] secretly negotiated a settlement to change the rules of his own election after voting started, and his continued obstruction makes it clear that he never intended to provide any responsive records until after Election Day.” said Sen. Warren Daniel (R-Burke), Senate Elections Committee co-chair, in a press release.

The NCSBE website reflects the current (and final) state of both rules that were battled over until the final moments of the election, with one victory for each side evident.

Under, “How many witnesses do I need for my absentee ballot?”, it reads, “For the 2020 general election, only one witness is required for an absentee ballot. The voter is required to mark the ballot in the presence of the witness. The witness should not observe so closely that they can see how the voter votes. Instructions will come with your absentee ballot.”

For the question, “When is the ballot return deadline for the November 3, 2020 election?”, it reads, “For civilian absentee voters, the container-return envelope with the voted ballot enclosed must be returned to the county board of elections no later than 5 p.m. on Election Day, November 3. Absentee ballots received after 5 p.m. on Election Day will be counted only if they are postmarked on or before Election Day and received by mail no later than 5 p.m. November 12. Ballots without a postmark must be received by Election Day.”