Court battle over disputed ballots could determine outcome of chief justice race

Photo: Forsyth County Board of Elections Chair Susan Campbell delivers ballots to a staff member for tabulation. (screenshot)

As counties across North Carolina report final voting numbers, the contest for chief justice of the NC Supreme Court remains too close to call, and on Tuesday Democrat Cheri Beasley — trailing Republican opponent by less than 500 votes — requested a recount.

On election night, Newby led Beasley by about 365 votes. As counties reported their provisional and late-returning absentee ballots beginning Nov. 12 and moving into the weekend, the lead flipped three or four times, with Newby winding up about where he started.

During an election in which Democratic governor Roy Cooper won re-election and Republicans fended off Democratic efforts to flip control of the General Assembly, the outcome of the chief justice election remains a crucial prize in the contest over North Carolina’s political future. The chief justice is the leader of the judicial branch of state government. In addition to administering the state court system, the chief justice presides over a body that is often the final arbiter of legal challenges to administrative decisions made by the executive branch and laws enacted by the legislature.

The two candidates’ stark differences on institutional accountability for continuing racial disparities in the court system is one measure of their differing approaches.

Days after protests erupted across North Carolina in response to the death of George Floyd, Beasley, the sitting chief justice, made a public statement acknowledging that the protests were highlighting disparities that “continue to plague Black communities” and “policies and institutions; racism and prejudice [that] have remained stubbornly fixed and resistant to change.” She referenced a state judicial commission that found “too many people believe that there are two kinds of justice” as a result of “their lived experience.”

“The data also overwhelmingly bears out the truth of those lived experiences,” said Beasley, a former public defender from Cumberland County who was appointed to the chief justice seat by Gov. Cooper in 2019. “In our courts, African-Americans are more harshly treated, more severely punished and more likely to be presumed guilty.”

A former federal prosecutor who grew up in Jamestown, Newby maligned his opponent during a Federalist Society candidate forum as adopting “an accusatory manner that would question the impartiality of people who have participated” in the system.

“Justice is blindfolded,” said Newby, who has served on the Supreme Court for 16 years. “Justice treats everyone the same. So, where’s the evidence that we’re not treating everyone the same?”

Also reflecting the candidates’ differences on systemic racism, Newby cast the lone no vote among his six colleagues when the supreme court ruled in June to restore the Racial Justice Act. The law, which allows defendants to have the death penalty removed if they can show racial discrimination was a factor in their prosecution, had been repealed in 2013, after Republicans took control of both the executive and legislative branches of government.

When results finally arrived from Robeson County on Monday evening, 1,843 votes were added to Newby’s column, compared to 1,727 to Beasley, with a net gain of 116 for Newby. Robeson County had to resubmit results after staff discovered they neglected to upload results from the Pembroke Fire Department one-stop early voting site to the state results database, according to the State Board of Elections. The Robeson County votes included 1,951 ballots from the Pembroke Fire Department early voting site, along with 700 provisional ballots and 30 absentee ballots.

By Monday night, with about a dozen counties finalizing their reporting, Newby was back where he started, more or less — leading Beasley by 285 votes.

On Sunday, the State Board of Elections announced that Washington County had inadvertently double-counted its absentee-by-mail votes in the election night reporting system. When state election workers submitted the corrected results from the Democratic-leaning county on Monday, Beasley’s tiny lead evaporated. An analysis by Triad City Beat also shows that the Durham County Board of Elections subtracted out 71 votes from Beasley and seven votes from Newby on Nov. 13. The Mecklenburg County Board of Elections likewise deducted nine votes from Beasley and one from Newby. Bigger adjustments came on Monday night, with Sampson County deducting 920 votes from Newby and 863 from Beasley.

State election law allows the runner-up to request a recount in any statewide race with a margin of 10,000 votes or less. The chief justice race is the only statewide race that is likely to fall within that margin.

State house candidates concede while close calls continue in Guilford county races

As Guilford and Forsyth, the third and fifth most populous counties respectively, finalized their results last week, two Democratic candidates in closely watched House races conceded.

“All ballots have been counted and there is a close but clear decision in NC House District 74,” said Dan Besse, a Winston-Salem City Council member, adding that he had congratulated Jeff Zenger, his Republican opponent.

Nicole Quick, a Democrat who challenged Republican incumbent Jon Hardister in Guilford County’s District 59, followed suit.

“With all the votes now submitted, I humbly acknowledge the will of the majority of the voters and concede to my opponent,” she said.

The Associated Press called North Carolina for Donald Trump on Nov. 13, as widely expected. The decision came six days after the AP and other media organizations declared Biden the winner of the US presidential contest, following the vote count in the crucial swing state of Pennsylvania. The final additional absentee and provisional ballots in North Carolina narrowed Trump’s lead from 76,479 votes on election night to 74,443 votes, or 1.3 points on Tuesday morning. In contrast, during the 2016 election, Trump held a 3.7-point lead over Democratic opponent Hillary Clinton in North Carolina.

In Guilford County, three candidates have requested recounts in local races. In Guilford County Commission District 4, Republican incumbent Alan Branson trails Democrat Mary Beth Murphy by 70 votes, or 0.16 percent. In Guilford County School Board District 3, Democrat Blake Odum trails Republican incumbent Pat Tillman by 101 votes, or 0.20 percent. And in the District 5 contest to replace outgoing school board member Darlene Garrett, Republican Michelle Bardsley trails unaffiliated candidate Deborah Napper by 147 votes, or 0.20 percent.

Beyond state and local recounts, the results in close races could easily be shaped by court battles, as well as a report about inappropriate conduct by a candidate’s spouse in Anson County.

WBTV reports that security video shows the husband of a Democratic candidate for register of deeds in Anson County walking in with voters, filling in their ballots or standing while they vote, after the local board of elections warned campaigns against that conduct. State law says voters can only receive assistance from persons who are not family members if they have specific disabilities.

WBTV has reported that the state board is investigating more than a dozen complaints filed on the matter and reviewing the video.

Disputed ballots

Republican members of the local elections boards in Guilford and Forsyth raised objections to counting absentee ballots that came in after the statutory deadline of Nov. 6, as well as absentee ballots cast with so-called “cure certificates,” in which a voter who fails to include required information like a witness signature may sign an attestation confirming the authenticity of their ballot after the fact. In both cases, Democratic majorities overruled their Republican counterparts in 3-2 party-line votes.

Guilford County Elections Director Charlie Collicutt said the disputed ballots include “a couple hundred” involving cure certificates and a dozen that came in past the Nov. 6 deadline. In Forsyth County, Republican board members challenged 42 ballots that came in after the Nov. 6 deadline and 42 ballots subject to the cure certificate.

Despite their objections to counting the ballots received after Nov. 6 and those subject to a cure certificate, Republican members joined their Democratic counterparts in voting to certify the results in both Guilford and Forsyth counties.

“You should have confidence that all the votes that were cast were counted and tabulated correctly; there were no irregularities that I observed in Guilford County,” Gene Lester, a Republican member of the Guilford County Board of Elections, told Triad City Beat.

Stuart Russell, also a Republican board member, made a similar declaration in a statement emailed to TCB.

“I have the highest confidence that our board, with the tireless and professional assistance of its staff, accurately counted what we were directed to count,” he said.

As justification for their decision to count the disputed ballots, the Democratic members cited an Oct. 29 US Supreme Court decision. The high court declined to hear a GOP appeal that challenged deadline extensions in North Carolina and Pennsylvania.

But Republican election officials, echoing the arguments of Republican lawmakers in Raleigh, note that the Supreme Court decision is at variance with state law, which sets a deadline of Nov. 6 to receive absentee ballots and requires a witness signature for mail-in ballots. The State Board of Elections, a division of the executive branch, agreed in a settlement to extend the deadline to Nov. 12 and to provide a “cure” remedy for mail-in ballots that were missing information such as witness signatures and addresses.

“My issue in this election is a legal one about how the State Board of Elections in Raleigh directed us to count certain ballots that were not authorized to be counted by our election statutes,” Russell said in an email to TCB. “In my opinion, the General Assembly decides what qualifies a ballot to be counted and codifies those requirements in our election statutes. However, in this election, a controversial lawsuit settlement and various memos from the state board director in Raleigh purported to dictate that certain ballots should be counted even though the election statutes did not authorize that they be counted.”

Lester, his counterpart in Guilford, said, “There’s an argument, which has to be decided by the judicial branch about whether the executive branch has usurped its authority. That’s for another day. You state the challenge by saying the changes are unlawful, so therefore those ballots are unlawful.”

Lester clarified that he in no way is implying that there’s evidence any of the disputed ballots are fraudulent.

Newby, who currently leads Beasley in the race for chief justice, filed protest petitions with the local elections boards to challenge ballots received after the Nov. 6 deadline and mail-in ballots with various deficiencies in New Hanover and Duplin counties. The candidate cited three ballots that missed the deadline and 49 with various deficiencies in New Hanover, along with an unspecified number of ballots that missed the deadline and 44 ballots with deficiencies in Duplin. The local boards convened on Monday to hear the challenges. Lester said the Guilford County Board of Elections also received a protest filing from Newby, but his Democratic colleagues declined to hear it, citing no probable cause.

Noting that the Democratic-dominated state board and its local counterparts across North Carolina’s 100 counties are unlikely to grant Newby relief, Lester said he expects the Republican chief-justice candidate to take his case to the state courts.

Even with the extended deadline of Nov. 12, there’s evidence that voters who made good faith efforts to cast their ballots before Election Day are being disenfranchised due to delays by the US Postal Service.

“We got a ballot today that was postmarked Oct. 28,” Guilford County Elections Director Charlie Collicutt told TCB on Monday. “There’s someone who paid $7 for priority mail that was guaranteed delivery on Nov. 7. We got it today. In Maryland, someone took a ballot to the US Postal Service and paid $7 for priority mail. The expected delivery was Oct. 31. He had a receipt showing he did the transaction on Oct. 28. The postmark on the ballot is Nov. 5.”

This story was updated on Nov. 17 at 1:49 p.m. to reflect that Democratic chief justice candidate Cheri Beasley has requested a recount.