Update: N.C. State Board of Elections announced just before noon Tuesday Supreme Court Justice Cheri Beasley requested a recount. All 100 county boards will recount votes in this race, which exceeds five million statewide.
NEW HANOVER COUNTY — The New Hanover County Board of Elections was the last of eight county boards to dismiss Republican N.C. Supreme Court Justice Paul Newby’s election protest in the close race for Chief Justice against Democratic incumbent Cheri Beasley.
At a preliminary hearing Monday, the elections board voted 3-2 down party lines to throw out Newby’s complaint, which alleged absentee by-mail irregularities.
Related: N.C. Supreme Court justice files election protest in New Hanover County, hearing Monday
Submitted late Thursday evening to meet the state deadline before local boards finalized their canvasses, Newby filed a protest for his race, then separated by 842 votes, and the N.C. Attorney General’s race, then separated by 13,748 votes.
Among other issues flagged, the board’s dismissal seemed to hinge on the majority’s determination that Newby’s complaint did not establish probable cause. Deputy county attorney Kemp Burpeau said while the assertions of evidence in the protest were minimal, the elections board could, in its reasonable discretion, schedule an evidentiary hearing.
N.C. State Board of Elections guidance directs local boards to host a preliminary hearing when election protests are filed to determine whether it establishes probable cause and complies with filing requirements. If a board determines both merits are met, the protest may then move on to an evidentiary hearing. At that stage, the challenger must provide substantial evidence that voting irregularities occurred and whether they were outcome-determinative.
The state board defines probable cause as a nontechnical probability that incriminating evidence is present.
“Probable cause does not require a showing that the protest ‘be correct or more likely true than false.’ Rather, it is a relatively low bar that simply indicates the possibility of a protest’s truthfulness,” according to state guidelines on election protests.
Brian LiVecchi, attorney for Newby and the North Carolina Republican Party, implored the board to recognize they were still at the preliminary hearing phase, and likened determining probable cause to a cop smelling marijuana before searching a vehicle.
“Is there a whiff of something that gives us a reason to look more deeply at it?” LiVecchi asked.
Later in an interview, LiVecchi said he felt the protest was dismissed on partisan grounds. “That’s sworn testimony from a sitting justice of the Supreme Court,” he said. “So, if that’s not compelling evidence, I don’t know what is.”
Alleged ABM irregularities
In his filing, which the GOP assisted him in preparing, Newby alleged: at least three New Hanover County absentee by-mail ballots were received and approved after the statutory deadline of Nov. 6, an unspecified number of ballots were approved without a postmark, and at least 49 ballots were contained in envelopes with deficiencies, including missing witness signatures.
The protest stated additional documentation and evidence would be made available upon request. LiVecchi explained the choice to withhold additional documentation was intentional, arising out of objections raised in 2016 to election protest filings for violating voter confidentiality. Anticipating the board may take issue with this, he supplied the elections director with a full list of names and addresses related to the contested ballots in an email the evening before the hearing.
State guidance directs local boards to only consider a filing “on its face” at the preliminary phase when determining probable cause. The board may not consider any new evidence at this stage.
“The protest itself is deficient because on its face, it does not present any evidence,” said Kathleen Glancy, attorney for Attorney General Josh Stein, Beasley, and the N.C. Democratic Party. “And the promise to introduce evidence upon request or at a later date — that promise is not sufficient to alleviate the protest to a matter of having clear evidence of wrongdoing.”
Democratic elections board member Derrick Miller read aloud the portion of Newby’s protest that alleged irregularities, subbing in “unicorns,” “garden gnomes,” and “pots of gold at the end of a rainbow.”
“My point is, when I change those wordings, there’s exactly as much evidence in the protest for violations of election law, as there are for ballots by mythical creatures — which is to say none at all,” Miller said.
Later, he apologized for being flip and said he intended to be illustrative. “Is there a whiff of something?” he said. “No, there’s no whiff of anything in here. There’s only the allegation.”
Democratic chair Thomas Pollard said he was hesitant to allow the protest to move beyond the preliminary phase because it contained unsupported allegations and failed to include evidence. Should it have moved to an evidentiary hearing, Pollard said he imagined the challenger would file a public records request and expand the review from the 50 or so flagged to the 27,000 absentee by-mail ballots approved.
“God forbid,” LiVecchi said under his breath.
Last week, the New Hanover County GOP highlighted an issue with the review process after its public records request was granted two months later — after the deadline to challenge individual votes had already passed. Both GOP chair Will Knecht and Republican elections board member Russ Bryan described the issue as a system failure.
Related: GOP flags hundreds of absentee ballots, review still uncertain
After swapping leads several times in the last few days, Newby is ahead of Beasley by just 285 votes Tuesday morning. The state GOP congratulated Newby on a win, however, a recount may be in order, given the razor-thin margins of the race.
After the hearing, LiVecchi explained each of the other county’s dismissals were handed down by local boards with a Democratic majority. “When we come before a Democrat-controlled board, that’s what we expect. And that’s played out across the state in a lot of ways,” he said.
In N.C., the State Board of Elections appoints two Republicans and two Democrats to each county board. The governor appoints each chair.
“To say that all eight have been dismissed is not a shock from where we sit,” he said. “I think they’ll find any sticking point they can get in order to justify dismissing it.”
At the hearing, Pollard — who served as the City of Wilmington’s attorney for 26 years — said the filing’s inclusion of two allegations rendered it nearly void: the statutory absentee by-mail receipt deadline of Nov. 6 was already extended by a state settlement and approved by the U.S. Supreme Court to Nov. 12; the lack of a postmark was rectified by the settlement, permitting scanned ballot-tracking information as sufficient.
LiVecchi said this was an erroneous interpretation, as the U.S. Supreme Court denied granting injunctive relief to Republicans but did not issue a final ruling on the remaining issues. Because Newby had inched out a lead, LiVecchi said appealing these local decisions may no longer be necessary but is still on the table.
“I’m not sure exactly what evidence they wanted to see, but they would have seen it at the evidentiary hearing and the state board will see it because I’m fairly certain it will be appealed if it needs to be,” he said.
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