NEW HANOVER COUNTY — The New Hanover County Board of Elections voted 3-2 to dismiss an election protest alleging the board violated state law.
READ MORE: NHC election protest to be heard at canvass, board begins counting remaining ballots
The protest, filed by incumbent commissioner Dane Scalise, was taken up at the board’s Nov. 15 canvass meeting, where the election results are to be certified. As of press, the meeting is ongoing.
After a short discussion — and the questioning of one board member’s potential conflict of interest — Democratic board members Derrick Miller, James Morgan Jr., and Natalie Hinton-Stalling voted to dismiss the protest. Republicans Bruce Kemp and Tom Morris dissented.
Had it moved forward, the canvass could have been delayed for the board to hold a hearing.
Scalise alleges the board broke North Carolina General Statute 163‑234 by not counting all early-voting absentee ballots on Election Day, as the state mandates. Only absentee ballots received on Nov. 5 are intended to be counted post-Election Day.
The local board of elections has maintained its decision cut off the count on Oct. 31 was done under the North Carolina State Board of Elections guidance. But the state board denies this and its legal counsel has said on the record those ballots should have been counted on Election Day.
Instead, all remaining absentee ballots and provisionals, more than 3,500, were counted on Nov. 14. The meeting ran until completion, around 1 a.m. on Nov. 15.
These uncounted votes kept two races with slim margins, the New Hanover County commissioners and school board, in limbo for 10 days. However, the absentee and provisional ballots were not enough to change the initial results in these two contests.
Unofficial results indicate the re-elected commissioners will be Republican incumbents Bill Rivenbark and Scalise, with newcomer Democrat Stephanie Walker coming onto the board; new school board members include Democrats Judy Justice and Tim Merrick and Republican David Perry.
Port City Daily has reached out to Jonathan Barfield Jr., a current Democratic commissioner seeking re-election, as well as school board candidates Jerry Jones Jr. (Democrat) and Nikki Bascome (Republican) if they will request a recount. Bascome confirmed she would not, but no one else responded by press.
According to state statute, a losing candidate has the right to demand a recount of votes if the disparity between the prevailer’s turnout is no more than 1% of the total vote. The recount would have to be submitted by 5 p.m. on Monday, Nov. 18.
As for Scalise, he has the option to appeal the BOE’s election protest decision to the State Board of Elections.
“I will discuss this issue with my legal team,” he told Port City Daily Friday. “No decisions have been made.”
The BOE’s decision came down to whether the administrative cutoff would change the outcome of the commissioner race, a requirement when determining probable cause to move forward to a hearing.
“The question is: Does it affect the results?” BOE member Morgan said. “And we just said that everybody agrees that it doesn’t.”
Kemp pushed back on the motion to dismiss, saying the ballots awaiting approval at the canvass, 243, could influence the outcome of the commissioners race, in which the winners and losers are separated by only 231 votes.
Miller didn’t deny the statement, but said the protest questions when the absentee ballots were counted, rather than if they will be counted.
Kemp also came under scrutiny for a discussion he had with Caleb Rash, an attorney representing Scalise — Scalise was not at the meeting. During a break at Friday’s board meeting, after the chair motioned for the board to be “at ease,” Kemp pointed at Rash, motioning for him to follow the board member outside the room. When Rash and Kemp returned, Chair Miller asked Kemp to put on record who he met with outside and what they discussed.
Kemp remained silent, despite Miller asking if the meeting conferred a conflict of interest.
Paul Cox, general counsel for the State Board of Elections, provided some guidance. Cox stepped in to represent the board in place of county representation, which recused itself from assisting the board of elections earlier this week.
Cox said a conflict of interest would occur if a board member has a “personal stake” in what’s being discussed. He said due process has to be observed during the protest’s preliminary hearing, which would be violated if a board member has pre-judged or is biased toward a certain outcome.
“I’m satisfied that that’s not the case,” Kemp said.
Per Dane Scalise’s 2024 campaign finance records released to date, Kemp is listed as a contributor of $2,703; it also shows the elections board member donated $1,400 to Republican commissioner candidate John Hinnant and $500 to school board candidate David Perry.
Kemp refused to answer PCD’s questions of why he thought his contribution to Scalise did not constitute a conflict of interest, nor would he provide details about his conversation with Rash.
PCD also requested Kemp’s text messages and emails regarding the protest on Friday, though public records requests take time to be fulfilled.
Rash did not return to the BOE meeting after leaving with Kemp.
The attorney spoke during the board meeting’s public comment, as the board did not take evidence, statements nor witnesses during the protest’s preliminary hearing.
“The rule of law matters,” Rash said. “State law is clearly violated, and in New Hanover County, it made a name for itself this election, but it’s not particularly flattering. So as the nature of the protest, I think voters should not have to wait 10 days after Election Day, until 1:30 in the morning, to know the results of elections.”
Present to counter his point and represent several absentee voters was attorney Will Robertson of Brooks Pierce Law Firm.
“As I understand, the request for releasing that protest is to ensure that voters’ votes were counted before Nov. 14,” Robertson said. “I understand that the board has counted the people’s votes as of the completion of y’all’s work last night. In large part, this protest is moot.”
Despite the protest dismissal, the board of elections still has not provided an explanation why the administrative cutoff was made. BOE Director Rae Hunter-Havens has said there was a large volume of ballots that came in during early voting, an influx of curbside voters and the multiple steps needed to complete verification, particularly due to the new voter ID law.
Several political leaders have claimed the board should have received more funding from the state and county commissioners, though the county has increased the BOE’s adopted budgets over the last three fiscal cycles. Additionally, Hunter-Havens told commissioners in spring budget talks that the BOE would have no issues staffing the entire length of early voting.
The BOE and staff also haven’t been specific what caused the misunderstanding between the local and state board regarding guidance of the cutoff. According to WECT, the guidance was taken from a phone call between the state and local board staff — meaning there is no public record of what was said.
However, PCD has filed public records requests for email correspondence between the two boards since September.
CATCH UP ON PCD NEW HANOVER COUNTY ELECTIONS REPORTING:
- NHC election protest to be heard at canvass, board begins counting remaining ballots
- Election update: Protest filed, uncounted ballots increase
- NHC elections board advised to seek legal counsel, Tuesday meeting moved to larger space
- Candidate files complaint against local elections board amid uncounted ballot confusion
- Absentee ballot count ticks up in NHC, county leadership and state elections staff at odds
- NHC commissioner, school board races hinge on 3,400 uncounted ballots, candidates talk results
Email journalist Brenna Flanagan at brenna@localdailymedia.com.
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