L’état, c’est moi
We’re on-site, live-blogging commentary and background on the Board’s proceedings, on this page, beginning at 1:30 PM EST today.
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Our Story So Far
After the correction of a minor and far from unprecedented election night software glitch in Durham County turned North Carolina Governor Pat McCrory’s (R) early 50,000 vote lead into a late-night 5,000 vote loss, McCrory’s campaign and the NC-GOP activated a plan to call into question the integrity of the election they failed to win the right way. But the party’s more than fifty protests alleging voter fraud in as many counties were quickly set aside for lack of evidence, leaving only two standing.
The first surviving protest was an appeal for a recount in Durham County, brought by NC-GOP attorney Thomas Stark. Despite state election law’s clear requirement that such an appeal must present substantial evidence of irregularity (which all sides agree does not exist), the State Board of Elections exercised its self-proclaimed prerogative to order a machine recount of Durham County’s ballots. Ignoring experts’ estimates that the recount would require at least seven days to properly conduct, the State Board ordered it to be completed in just four (by 7 PM on Monday, Dec. 5th), prompting Durham County board chairman William Brian (R) to observe “The order that we received from the state board was an order that, it seems to me, was designed to cause us to fail.”
The other protest, to be heard today by the State Board, concerns roughly 200 absentee-by-mail ballots in rural Bladen County that a handwriting expert alleges were filled out and witnessed by a small number of individuals, later identified as get-out-the-vote (GOTV) canvassers for the African American political action committee, Bladen County Improvement Association PAC.
It is legal in North Carolina for an individual to assist a voter in filling out an absentee-by-mail ballot according to the voter’s instructions, and likewise legal for a single individual to sign as witness on any number of ballots. But some Bladen GOTV canvassers may have erred in failing to declare themselves in writing to have assisted the voters in question.
Along with the Bladen County protest hearings, today’s meeting agenda includes a recently-added and cryptic “Consideration of demands for mandatory recount.” We don’t yet know what this involves, as the board’s meeting materials are strangely silent on this topic.
Consequential as the subjects of today’s State Board meeting may (or may not) be, in the end this hearing is really no more than another pro forma step along the path to the NC GOP’s real end game: to give the Republican majority on the Board enough ammunition to enable it to invite the state’s legislative branch, the General Assembly, to determine the election’s winners and losers themselves by a simple majority vote of state House and Senate members. Both those chambers are controlled by Republicans, making the outcome of that vote a foregone conclusion.
Given that the State Board’s Republican majority has already taken every opportunity to signal that they are in the bag for McCrory, there’s little mystery going into this meeting regarding whether or not the Board will do the right things today. The only real question is whether hyper-partisan Board members Whitney, Amaroso and Baker have fully considered the inevitable (and terrible) consequences of nullifying a free and fair election, and scoffing at the rule of law, in favor of installing McCrory as Governor by decree.
7:33 PM EST: a state board staff member ducks in to report that the Durham recount is underway, 21,000 (of 94,000) are now counted. She expects the count will be completed some time Monday. It would be interesting to know whether Durham County board chairman Bill Brian agrees with that; no one asks.
And with that, the meeting is adjourned. So much for the mystery “mandatory recount” agenda item; it was simply a status update on the Durham count. We’re outta here. Thanks for staying woke.
7:32 PM EST: Executive Director Kim Strach discussing Durham County’s request for an extension of recount deadline from current 7 PM Monday. Board member Malcolm (D) says “there was no specific deadline in the order we approved the other day.” Chairman Whitney: “yeah, I stuck that in myself.”
7:26 PM EST: Motion to dismiss Register’s protest, seconded, unanimously carried. Thank you baby Jesus.
7:16 PM EST: Nice lady just presented me with a cheeseburger, onion rings, and a bottle of water. I ducked out into the parking lot and ate it in record time. Back again, and the Board is still gently attempting to show Mr. Register the door. But soon, very soon…hang with us.
7:07 PM EST: Nice lady at the Board of Elections front office, awaiting the end of this hearing so she can go home: “I’m so hungry, I’m so tired.” Yeah, there’s a lot of that going around. Thank Pat McCrory.
7:04 PM EST: Board members seem to be ever so gently explaining to Mr. Register that he has no case. They’re allowing him a huge amount of time complain. Amaroso: “Are you a sitting elected official?” Mr. Register: “If I wanted to I’d be sitting.”
6:56 PM EST: Mr. Register’s protest seems to involve no ado about nothing. Should be dismissed in a couple of minutes, whereupon we can get to the good stuff, the mysterious agenda item concerning “mandatory recount.”
— Kevin Bailey (@KevBaile) December 3, 2016
6:46 PM EST: The meeting is gaveled back into order. This should be a quick item: a protest of the Bladen count by a Mr. Register, who alleges witnessing “a memory stick problem” during the ballot count. Register’s protest was rejected by the Bladen County board; he’s seeking a hearing from the State Board, requesting a hand-to-eye recount of Bladen ballots. Mercifully, he has no attorneys with him.
6:43 PM EST: Listening in on McCrory attorneys Knight and Branch whining in the parking lot. “Why didn’t anybody try to cut [Board member] Malcolm off?” [during his withering questioning of protestor Dowless]. Uh…maybe because you don’t get to “cut off” a board member during a board hearing?
6:32 PM EST: Chairman Whitney calls for a motion. Malcolm (D) moves that the Bladen County protest be dismissed. Kricker seconds. Malcolm, Kricker, and Baker (R) vote ‘aye’. McCrory loses on his Bladen County gambit, on a (slightly) bipartisan vote.
Ten minute break before the next agenda item, “mandatory recount,” is heard.
6:27 PM EST: Board member Amaroso (R) helpfully reads us the Webster’s definition of the work ‘mark.’ “Sadly, voter fraud is not a high priority for the DA’s office, federal or state. In terms of the evidence presented here today, I would like to see the ballots for myself. The protestor didn’t see them either. Everything’s complicated. I think there is a problem here. I don’t know that anyone else is interested, but that’s where I’m standing now.”
6:21 PM EST: Chairman Whitney disagrees. He would like to see the 167 contested ballots kept out of the canvass (the final vote tally) from Bladen.
6:21 PM EST: Board members Kricker (D) and Malcolm (D) both agree with Baker. Looks like McCrory is fast losing his bid to get 400 African American ballots from Bladen County thrown out.
6:18 PM EST: Baker (R): “I really don’t see how we can deprive these voters of all their votes because we have some concerns about the Soil & Water Conservation race.” Seated next to him, Board member Kricker (D) is smiling and nodding her head. I’ve never seen her do that in response to a Baker statement before.
6:09 PM EST: Chairman Whitney (R) opens the matter to discussion among the Board members. Baker (R): “What we have before us is evidence of improper handling of ballots in the Soil and Water Conservation race. I wonder if the main problem here was that the assistants didn’t provide certifications. I’ve heard nothing here regarding the signatures of the voters being invalid. That’s certainly something I’d want to hear before I’d go throwing out ballots.”
6:09 PM EST: Cooper campaign atty Hamilton making his summation.
6:01 PM EST: Atty Joyner making his summation. “There is absolutely no evidence, not a scintilla of evidence, for a violation of election law. So the question of whether there is substantial evidence is way above the level that we’re at today.”
“Fraud deals with intentional conduct that is designed to deceive. And there is absolutely no evidence that speaks to that here.”
It’s a great argument, but it’s important to remember that in the Board hearing earlier this week (re: Durham County) the Board purposefully ignored the statutory requirement that there be “substantial evidence” in order to uphold an election protest. We’ll say it again: the Republican majority on this Board is here to do what they’re here to do. Lack of substantial evidence be damned.
5:54 PM EST: Rep. atty Branch arguing that if the Board finds fraud with respect to a write-in for Soil and Water Commissioner then the entire ballot should be discounted. Because let’s face it: this is about McCrory, who is paying attorney Branch’s fee.
5:50 PM EST: Just spoke briefly with a nice lady who was reading this liveblog at home and said to herself “I’ve got to get down there and see this for myself!” Sure wish she had brought a cheeseburger, onion rings, and chocolate shake with her. Haven’t eaten yet today, and it looks like this hearing could continue to go on for some time.
5:43 PM EST: McCrory atty Branch: “What we’re asking for here is for the Board to take these absentee ballots into evidence, and to determine itself on a ballot by ballot basis whether there was fraud going on here.”
5:39 PM EST: Dem atty Joyner makes a motion that the McCrory/Dowless protest of Bladen’s absentee ballots be dismissed, for the protestor’s failure to meet his burden to offer any substantive evidence. McCrory atty Branch now arguing against that motion.
5:38 PM EST: Dowless is excused. Dem atty Hamilton says he does not intend to ask any questions.
— Bill Harnsberger (@BillinPortland) December 3, 2016
5:20 PM EST: It’s important to bear in mind that as juicy as the Dowless testimony has been, it is virtually certain to have no impact whatsoever on the State Board’s Republican majority. They’re here to do what they’re here to do. All the rest is so much bread and circuses.
5:12 PM EST: Atty Joyner asks Dowless whether, in prior elections, he has been endorsed by the Bladen County Improvement Association. “Yessir, they had me on their sample ballot in 2012, and I gived them no money.” “And in 2016 were you endorsed by the Bladen County Improvement Association?” “No sir.”
5:10 PM EST: There’s blood in the water here right now, as attorney Irv Joyner begins his own joyful cross-examination of protestor Dowless.
5:08 PM EST: In case you’re finding this hard to process, we have just learned that the McCrory campaign’s willing citizen-protestor, Leslie McCrae Dowless, the winning candidate for Bladen County Soil and Water Conservation Supervisor, who has alleged ballot-harvesting by the Bladen County Community Improvement group…was himself paying folks to go door-to-door to collect absentee ballot applications. He received those forms from those canvassers, initialed them, and “passed them on.” Pior to the election State Board of Elections investigators contacted him, discussing we don’t know what with him. Subsequently a McCrory campaign attorney reached out to him, prepared a protest statement for him which he appears to be largely unfamiliar with. He signed it, and the attorney submitted it. We also know that McCrory’s star protestor has taken the 5th in response to some questions put to him today.
4:59 PM EST: Malcolm: “Have you ever met with investigators from the State Board of Elections?” “Yessir, but that was a past election.” “Have you spoken with them on the phone?” “Yessir, about six weeks ago.” So is it your testimony that in this election you never handled, filled our, or completed anyone’s ballot other than your own?” “Yessir. Never nobody’s but my own.”
4:54 PM EST: Malcolm (D): “How many absentee ballot request forms came to you through this process?” “I’d say ’bout a hundred and sixty-four.” And you initialed every one of them in one corner before sending them on?” “Yessir.” “And how many voted ballots came to you through this process?” “I couldn’t say, sir.” But when Malcolm asked for confirmation, Dowless says “No sir, I never saw nobody’s ballot but my own.”
4:47 PM EST: Whoa. Board member Malcolm: “Do you know Caitlyn Croom?” (one of the get-out-the-vote canvassers charged with wrongdoing in Dowless’s protest).” “Yessir, I know her. She helped me with my campaign.” “Did you pay her?” “Yessir, I paid her for bringing in completed absentee ballot forms.”
This is starting to become bizarre. Sounds like Dowless, who filed a complaint that GOTV canvassers were harvesting ballots in Bladen County, was himself paying some of these same people to…what? Yeah: harvest ballots. And taking the 5th to avoid prosecution for it. And a McCrory campaign attorney is behind his protest, and the McCrory campaign is exceedingly eager to prevent Dowless from discussing what transpired between that attorney and Mr. Dowless. Shakedown, maybe? Jeebus.
There are a lot of good people in the audience chuckling and shaking their heads right now.
4:37 PM EST: Dowless takes the 5th regarding who provided him with the campaign finance report documents appended to his protest filing.
4:35 PM EST: Malcolm (D): Mr. Dowless, are you familiar with your protest? How do you know the assertions in it to be true?” “Well, sir, it come out in the papers.”
4:29 PM EST: Malcolm (D): “Who informed you of these ‘irregularities?'” “A feller named Steve.” “Steve who?” GOP atty Branch objects: ‘Steve’ Roberts is an attorney with the McCrory committee, and also a member of Mr. Dowless’s legal defense, therefore, Dowless/Steve information is attorney/client privilege. Atty Branch is throwing one objection after another: “Mr Dowless, do not reveal any content of your conversations with Steve Roberts.”
4:25 PM EST: Malcolm questioning Dowless: “Is it true that you are the apparent winner in the Bladen County Soil and Water Conservation District contest?” “Yessir.” “Then why are you bringing this protest?” “I just think it ain’t right.”
4:23 PM EST: Board member Malcolm (D) now grilling McCrory atty Knight regarding why the heck the protestor, Dowless, is not present. “Does Mr. Dowless, the individual who brought all these people here today…does your client intend to answer questions today without being immunized?” Atty Knight: “He is present, and will testify today unless advised otherwise by his counsel. He is not waiving his 5th Amendment right to not incriminate himself.”
Wow. Just wow. Dowless is now taking the stand.
4:16 PM EST: And those of us who were permitted to use the bathroom of our choice are now back.
— Eve Ryone (@TheyWhoSay) December 3, 2016
— Old_ResistFascists (@WhizChem) December 3, 2016
4:08 PM EST: We are reaching the conclusion of the Governor McCrory Memorial Bathroom Break. Our coverage of the hearing should resume shortly.
3:57 PM EST: Board member Malcolm (D) drops a minor bombshell just as chairman Whitney is about to declare a bathroom break. It’s Malcolm’s understanding that the original protest filer in this matter, Bladen County voter Leslie McCrae Dowless (R), is not present at today’s hearing. Malcolm instructs Board director Kim Strach to prepare a subpoena for Mr. Dowless. Malcolm is definitely not amused by the fact that the feller who stirred up this hornet’s nest isn’t present, and the McCrory campaign’s attorneys didn’t think to bring him along to this quasi-judicial hearing.
Side note: having myself spoken (by phone) to Mr. Dowless, I’m not at all surprised that McCrory’s attorneys don’t have him here. Nuff said on that subject.
3:41 PM EST: Hamilton is striving to emphasize that handwriting analyst Ware is not certain regarding her findings, and not even as confident as she often is in other cases. This would probably be an effective argument in front of a jury of civilians. But in front of a 5-member Board controlled by 3 hyper-partisan Republicans who already know how they’ll decide this matter, it seems like rather less than a knockout punch. But here’s the place to add: I am not an attorney.
3:38 PM EST: “So you’re not offering an opinion on whether the McCrory campaign or the Cooper campaign had anything to do with the marking of these ballots?” “Correct.”
The point Hamilton is driving toward here is that even if the person(s) who provided assistance completing these ballots erred or even broke the law by not signing the assistance certification, nonetheless there’s no reason to believe that the voter’s intent was anything other than what the tabulator reads when scanning the ballots, and therefore the ballots should not be discounted.
3:29 PM EST: Cooper campaign atty Hamilton now cross-examinging witness Ware. “Who hired you?” “The McCrory campaign.” “You also work for the federal government?” “Yes.” “How much are you making today?” “Eleven hundred dollars, plus $145 per hour.” “Your training teaches that you should examine original documents, you should take your time, you should have good lighting?” “Yes sir.” “You mentioned that this was not by any means a typical document examination because you lacked all those things?” “Correct.” “And you didn’t have an opportunity to examine the witness signatures on the ballot envelopes?” “Correct.”
3:23 PM EST: “I found six groups of ballots where in each there were indications of a single handwriting: 71 ballots in one hand, 46 in another, 18, 10, 11, 6, 5 ballots in the rest.” Board member Malcolm (D) asks why she didn’t assign a confidence level to each of her ‘matches.’ “You’re 51% sure? One hundred percent?” “It’s more likely than not.”
3:17 PM EST: Called in by the McCrory campaign, she examined redacted copies of ballots, comparing the handwriting of the write-in votes for “Franklin Graham (in the Soil and Water District Supervisor race).” “Now, I was under an incredible time-crunch, the lighting wasn’t good, I was examining photocopies instead of the original handwriting.”
3:08 PM EST: Handwriting analyst Charlotte Ware now testifying. She has considerable training, experience, certification, and also works for the Postal Service Investigation unit.
3:00 PM EST: Atty Joyner cross-examining witness Held. “Do you think it’s illegal for one person to assist multiple voters to complete ballots?” McCrory atty objects. Witness Held: “I have no problem answering that question. I’m for people voting, I don’t care whether you’re Republican, Democrat, or Liberatian.” In short, he doesn’t answer the question, and gets away with it because Board chairman Whitney is conveniently asleep at the switch.
2:51 PM EST: It’s interesting to this humble scrivener that at the State Board of Elections hearing earlier this week (regarding Durham County recount) there were eight TV news cameras in the board room and four or five satellite trucks with dishes raised in the parking lot. Today’s meeting: just two cameras, and zero active satellite trucks. Both hearings are equally important. But election chaos is fast becoming normalized here in NC; it is becoming yesterday’s news as far as the media are concerned. This plays nicely into the GOP’s game.
2:49 PM EST: The board will be lenient with regard to hearsay, “but tell us what you know, not what you think.” This testimony continues, boils down to a history of how the Bladen County board first became aware of handwriting similarities on the ballots. One voter complained to the board that s/he was told on election day that s/he had already voted an absentee ballot. The board decided that they should look at all absentee ballots, and Held noticed handwriting on a few of them that appeared “in my opinion” similar.
2:35 PM EST: Witness Held is relating what other people told him. Atty Joyner objects to this as hearsay. Raucous discussion ensues regarding whether or not this board can consider hearsay. Substantial argle-bargling going on.
2:32 PM EST: McCrory witness Brian Held (Bladen County Board of Elections member) sworn in, relating how he discovered “irregularities” in these absentee ballots and “problems with get-out-the-vote efforts”.
2:27 PM EST: Hamilton talking about ‘strict compliance’ states and ‘intent of voter’ states. Strict compliance states’ statutes require a ballot to be discounted if it is not in strict compliance with voting regulations. Hamilton points out that North Carolina is, instead, an ‘intent of voter’ state; the ballot cannot be discounted unless the voter’s intent cannot be discerned.
2:22 PM EST: Hamilton points out that Board chairman Whitney (R) stopped in mid-sentence when reading to the Board the statute governing the giving of assistance to a voter. The first part of the statute says only a close relative or guardian can provide such assistance. The second part of the statute, which chairman Whitney left out, says that if a close relative or guardian is not available, some other person my assist the voter in filling out the ballot. Chairman Whitney leaving that part out of his reading was pretty telling.
2:19 PM EST: Cooper campaign atty Kevin Hamilton (the pro from Dover) now up.
2:14 PM EST: Here’s the deal with this odd turn. The absentee ballot envelope has a space for a person to sign if he/she assists the voter in “marking” the ballot. Numerous ballot envelopes were not so signed. McCrory campaign’s case is based on a handwriting examiner finding many write-in votes for a county office all in the same hands, but without a signed certification of assistance on the envelope. Joyner’s argument is that if the assistants wrote the write-in name, but did not fill in the oval beside it, then the assistant did not “mark” the ballot, and therefore properly did not sign the envelope certification.
2:07 PM EST: Atty Joyner is insisting that writing-in a name on the ballot is not, legally, “marking” the ballot – “marking” requires filling in the oval beside the name (and thus does not require the assistant’s certification of assistance). Board member Malcolm (D) verifies that “on every board of elections I’ve ever served on, the interpretation is always that if the oval is not filled in, the ballot is not voted.”
Board member Amaroso (R) jumps in “doesn’t that sound crazy to you?” Joyner: “Oh my God is it crazy. But that’s y’alls rules; that’s always been your rules.”
2:03 PM EST: Board member Baker, a retired judge who ought to know better, says “The problem is when one person completes multiple ballots.” There is, in fact, no proscription against one assistant helping multiple voters complete their ballots.
2:01 PM EST: African American NCCU law professor and attorney for the Bladen County Association, Irv Joyner: “I’m kind-of stunned by the creative story-telling we’ve heard here, and the ingenious strategy that they are attempting to merge separate complaints into one. In my community, GOTV is not a crime. Contrary to popular opinion, the law allows for individuals to assist any number of people in completing absentee ballots. This is not only not a crime, it is and ought to be encouraged.”
1:55 PM EST: Knight’s opening statement concludes. We wonder if this facility has showers?
1:53 PM EST: Knight introduces the alleged boogeyman under the bed: the Bladen County Improvement Association. “This is no johnny-come-lately organization; they’ve been in business since 1984.” He’s reading a list of GOTV canvassers the Association each paid a couple hundred bucks in food and mileage expenses for their GOTV field work. He says the word “paid” like there’s something wrong with that. We find ourselves wondering how he deals with the fact that the McCrory campaign “pays” him.
1:52 PM EST: Knight discussing handwriting analyst Charlotte Ware’s finding that numerous ballots have a write-in vote all in the same handwriting.
1:47 PM EST: Board member Malcolm (D) closely questioning atty Knight. “You want the ballots invalidated because the ballot envelopes lack the signature of the person assisting the voter?” Knight: “Yes.”
Knight takes every opportunity to repeat the word “scheme.”
1:42 PM EST: GOP atty Knight reviews the complaint (illegally cast ballots). “Inspection of about 400 absentee ballots in Bladen County reveal a scheme by GOTV workers to fill out ballots for voters.” Knight seeks to have all such ballots discounted because the voters’ intent is impossible to determine.
1:42 PM EST: Each side will get 15 minutes for opening statement, plus 10 minute rebuttal. Witness testimony outside of that limit. This will be a loooong hearing.
1:38 PM EST: Attorneys Knight and Branch representing McCrory, Hamilton for NC-Dems, Irv Joiner and Caitlyn Swain for the Bladen County Improvement Association PAC. Joiner objects to board’s summary finding of probable cause without any review of the evidence. That’s going nowhere.
1:36 PM EST: First up: a probable cause hearing on the Bladen County ACORN-lite affair (see Backgrounder above).
1:32 PM EST: Board chairman Whitney (R) calls the meeting to order, reads the required ethics statement, does a brilliant job of keeping a straight face.
1:22 PM EST: While we wait for the sound checks to finish, the lawyer-shmoozing to peter out to whispers, and the Board members to appear, it’s useful to point out here that this course of proceedings is not the NC-GOP’s only democracy-defying gambit to cling to power despite the will of the state’s voters. An Indy Week article today (read it!) elaborates upon long-rumored NC-GOP plans to undermine Democrats’ win of a majority on the state Supreme Court by calling an emergency session of the General Assembly later this month, theoretically dedicated to flood recovery efforts post Hurricane Matthew, to pack the state Supreme Court with two additional justices to be appointed by (ex)Governor McCrory (R)…thereby restoring the GOP’s iron grip on the court. Our confidential source within the Legislature confirms that planning for this is indeed underway atop Mount Doom.
Between that court-packing gambit and the State Board of Elections’ efforts here today to magically turn a McCrory loss into a win, GOP pols are conspiring to steal back control of the two branches of state government they lost in the Nov. 8th election. Still to be revealed: how they plan to respond to the violence that, historically, is always the outcome of a brazen coup d’état.
1:10 PM EST: And we’re live, here in the board room at the NC State Board of Election as the room rapidly fills to overflowing. You can’t swing a dead cat in here without hitting an election law attorney.