County Board of Elections risks violating state law to send message to ‘frivolous’ protestor

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Chairman Jonathan Washburn swears in John Christian Anderson.

UPDATE: The New Hanover Board of County Commissioners rescinded this vote just after 3:30 p.m. in an emergency meeting. The stated reason was that the acting Counsel for the State Board of Elections said the decision was in violation of state statutes.

WILMINGTON — Accusations of conspiracy and voter fraud was at the heart of today’s New Hanover County Board of Elections hearing, which ultimately made the determination that the election protest of John Christian Anderson was, in secretary Jamie Getty’s words, “not only frivolous but in bad faith.” The Board went on to certify all county results over the cautions of the legal council.

Anderson, who filed his protest on Monday, Nov. 28, claimed that there was both voter fraud and conspiracy to commit that fraud. Anderson’s complaint states he had witnessed someone entering the Senior Resource Center on S. College late at night – long after the polls had closed – and alleged that this person had tampered with “ballots cast and/or voting machines used One-Stop Absentee Voting in New Hanover County.”

Anderson’s complaint also made a more serious charge of conspiracy, mirroring one made in Bladen county, that suggested state-level political organization had been behind the alleged voter fraud.

The Board allowed Anderson to plead his case, but proceedings grew tense as Anderson’s allegations were refuted.

Director Derek Bowens gave testimony about the security at the Serious Resource center, telling the board that the building has late-night staff – including cooks and cleaning staff – but those staff members had no access to voting machines.

Bowens enumerated the security protocols for the voting machines, which were locked and electronically secured, and stated that flash-drives contained no data at the time of Anderson’s alleged tampering. Bowens said categorically that the Board had received no complaints or reports of tampering.

After admitting he had no evidence of fraud or conspiracy, Anderson turned to a further complaint, claiming the Constitution prohibits new residents to a state from voting in any race but the presidential election. Getty asked Anderson why he had waited long so file his protests. Anderson, who had filed a public information request on Nov. 17, claimed the county was “stonewalling” his request to see the ballots. Bowens responded that all the ballots Anderson was legally allowed to see had already been redacted and prepared for his review (they were made available at 9 a.m. on Nov. 30, Anderson had not yet looked at them).

At this point Thomas C. Pollard, board parliamentarian, told Anderson:

“I’ll tell you two things right now. First, you have absolutely not excuse for waiting until now. Second, the Supreme Court has already decided, in 1972, that durational residency laws were invalid if the last longer than 30 days.”

Pollard continued, “you have just admitted that you have no factual base.”

The Board voted unanimously to reject Anderson’s complaints. Washburn called them “frivolous” and Getty added “they’re not just frivolous, they’re in bad faith.”

The Board then turned to the issue of certifying the results on the election canvass, a process delayed several times by election protests. Washburn expressed his desire to see the “county get back to business.” Bowens informed the board that a statewide recount is expected next week, if not for the gubernatorial race, then for the much closer State Auditor race between incumbent Beth Wood (D) and Charles Stuber (R).

The crucial issue that was prolonging the county election, the Board emphasized, was Anderson’s opportunity to appeal. Secretary Getty said, “he has five days to appeal, but that appeal goes to the bottom of the list. It could take weeks to get to. And he can appeal again, after that – we could be in late January before we get this settled.”

Getty said that their report on the protest, which they have sent to the State Board of Elections, states unequivocally that Anderson’s protest “was for the purpose of delay. It was a political move was no basis in fact.”

Both Getty and Washburn expressed their desire to send a message to election protests made in bad faith. Washburn said he would not delay county business any longer for such protests, “even if they are brilliant political strategy.”

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Deputy County Attorney Kemp Burpeau.

After a terse debate with Deputy County Attorney Kemp Burpeau – who argued that state law appeared to tie the county’s hand until Anderson’s appeal opportunities were exhausted –  it became apparent that interpretation of state law was not at the root of the issue. Instead Washburn and Getty said they were both willing to risk breaking state law in order to preserve the election process.

“If we don’t send a message here,” Getty said, “it won’t stop. [Anderson] has done this before, in 2014. He’ll do it again. And it will signal that this is an effective way to derail our electoral process. It will happen every election.”

The Board then voted 2-1 to immediately certify the canvass results, with Pollard voting against.

Washburn acknowledged that a statewide recount – which will satisfy calls from Derrick Hickey (R) and Julia Boseman for a recount in the county Board of Commissioners race – could force them to rescind their certifications. He said after the meeting had adjourned that there was a “moral obligation” to send a message, saying, “if it happens, okay, let’s get some precedents on the books.”