A thought experiment: What a do-over Durham primary could possibly accomplish — nothing
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An analysis of the Durham election snafu: It's about more than bad math. It's also the GOP legislature.

Durham County_Presentation_Page_16

Who and why, we don’t know, but what went amiss during the Durham primary in March has resulted in a state investigation, political gamemanship calling for a new primary, and a do-over for some people who cast provisional ballots. 

And arguably, the elections snafu is due in part to other factors: 

  • new voting regulations, including ID laws passed by the state legislature;
  • a new crew of election judges and poll workers who were poorly trained to deal with the changes;
  • and a baffling number of ballot styles, the result of gerrymandering by the state legislature.

First, the math: The total number of ballots in question is 1,039. The State Board of Election voted unanimously yesterday to allow 892 people to re-vote in the Durham primary because their provisional ballots were mishandled. This summer, those voters, who were flagged in the polling books as casting provisional ballots, will be mailed new ones.

The state counted 147 provisional ballots yesterday; those ballots were still in their envelopes with the voter information attached. 

Download Durham County_Presentation by the State Board of Elections.

Since the total number of provisional ballots in question —1,039 — would not affect the outcome, the state board rejected calls for a new election from Commissioners Michael Page and Fred Foster, challenger Elaine Hyman, and their supporters. Those included Lavonia Allison of the Durham Committee on the Affairs of Black People and Anita Keith-Foust; both are pro-development, particularly pro-751 South. Foster and Page have long supported that controversial development.

Even the local board, which consists of two Republicans and one Democrat, opened the door for a new primary, saying there was a “great deal of public anxiety” over the results. (Republican county board chair Bill Brian is a lawyer with Morningstar firm; he previously was with the land use and zoning law division of K&L Gates, which represented 751 South developers.) The board has had a 2-1 majority since Gov. Pat McCrory was elected; the governor's party determines the board majority. In turn, the board majority hires the chief election judges.

Download DBOE_STATE_5_29016 (Statement by the Durham board)

Download Protest(Hyman)-2016-5-13  (Protests filed by the commissioner candidates)

Download Protest(Page)-2016-5-09

Download Foster_(Protest)_2016-05-25

To gauge the extent of that anxiety and where it’s coming from, BCR has requested all emails from constituents to the commissioners about the provisional ballots.

Second, the blowback: In March, the local elections board had approved or partially approved the 1,039 provisional ballots that had then been entered into the state’s election management system, also known as the provisional module. However, during the March 22 count, also known as the official canvass, the board and staff noticed there were only 980 paper ballots, leaving 59 unaccounted for.

It appears that 59 ballots were not lost, but rather run through the tabulator twice, according to the state board’s investigation. In addition, a temporary elections employee had told Director Michael Perry that an elections staff member had instructed her to run some ballots twice in order to reconcile the numbers.

The staff member who gave that directive has not been publicly identified. BCR has requested under the open records law the public portion of the personnel files on all staff members who have left the elections department since January.

However, if even Page won all 1,039 votes, — unlikely, since those ballots were dispersed among the Republican, Democratic, Libertarian primaries and the nonpartisan races — that would still not be enough to win re-election. Page lost by 1,161 votes, coming in sixth in a five-person race. 

Screen Shot 2016-06-01 at 11.35.30 AM

Foster came in eighth. Both candidates, plus seventh-place finisher Elaine Hyman, had filed a protest and also called for a new election, charging that the entire process had been corrupted.

In Hyman’s official protest she noted that, “elections should be won, not stolen.”

Hyman told BCR on Monday that, “As painful as my loss was, I accepted the results and was willing to move on. The big question now is ‘What is the right thing to do for our citizens?’ I do not want to disenfranchise a single voter.”

However, the state investigation revealed no widespread fraud. And by holding a second primary in August, thousands of voters could be disenfranchised, including college students and voters who are out of town on their summer vacations. 

The state found no irregularities in the regular ballots during one-stop early voting and on Election Day. The absentee mail ballots did have problems; the local election board did not sign the tapes as required; and someone input the wrong number of ballots. The state counted 18 ballots that had been unaccounted for, and concluded the error did not alter any contest results.

Third, the state’s role: It’s clear, though, that the redistricting and the sweeping 2013 election law, both passed by the GOP-led legislature, did have some bearing on the provisional ballots and the election process.

Gerry Cohen, formerly the special counsel for the state legislature, analyzed the breakdown of the 759 Democratic primary provisional ballots; the remainder were for other parties. He noted that 13 percent, roughly 98 ballots, were listed as provisional because of Voter ID issues. State law now requires voters to present a form of valid, state-approved photo identification when showing up to the polls. Some voters used the “reasonable impediment affidavit,” and others brought their ID to the county board of elections office before the canvass.

Without the Voter ID law, these would have been regular, not provisional ballots.

Three-quarters of the ballots were listed as out of precinct. These voters went to a precinct other than the one they were registered in. Cohen pointed out that the 2013 state legislation disallowed this category of provisional ballot, but a stay by federal circuit court has allowed them. If that stay is overturned, then those ballots could be invalidated.

Two percent of the provisionals were classified as unreported move, voters who had relocated but not reported an address change. They voted at their old or new precinct. 

The dizzying number of ballot styles can be traced directly to the rejiggering of the Congressional district lines. As result of the state’s action, Durham was carved into four U.S. House districts (in recent elections, there no more than two). This resulted in eight ballot styles for the Republicans, seven for the Democrats, and three for Libertarians. 

There were also  two nonpartisan ballot styles, which included the bond referendum and school board races.

Screen Shot 2016-06-01 at 11.35.17 AM

To make matters worse, those congressional votes didn’t count — for anyone. The reason we’re voting in June is because the Congressional redistricting was ruled unconstitutional by the federal courts. The March ballots had already been printed and some absentees mailed when the decision came down.

We’re also voting in June because a three-judge panel ruled that a so-called election retention law regarding the N.C. Supreme Court was also unconstitutional. That law, passed in 2015, was also spearheaded by the Republicans. It would have required voters to decide only if a judge should be retained. Only if voters said no could another candidate challenge him or her.

So yes, this election was most certainly a “major screwup” as Bill Brian, Durham County Board of Elections chairman, told state officials. Inexcusable, for sure. And the investigation isn’t over. But these irregularities were due in part to bad state laws — laws that were designed to erode faith in the election process. Mission accomplished.



Gerry Cohen

The number of ballot styles in the primary were doubled because 17 1/2 year olds could vote in the primaries but NOT in the school board or connect NC bond issues. So every ballot had s counterpart for those under 18. Probably no one voted the under-18 Libertarian presidential ballot. If there had been two congressional districts instead of four there would have also been half the ballot styles. In the General election with two congressional districts, four state house and two state senate there are likely to be 14-16 ballot styles.

Lisa Sorg

Thanks for your insight as always, Gerry. If Durham has 14-16 ballot styles in the fall, then the election folks really need to get their act together. Every election has its stakes, but this one in particular.

Gerry Cohen

on Election Day I think this fall there will only be a handful of Election Day precincts with more than one ballot style. It's early voting sites that will have all 14-16 but early voting sites WONT have out of precinct provisionals because early voting you can vote at any site. So the early vote election process will be very different than Election Day.


so, are people allowed to vote provisionals if they come to vote at the wrong precinct on Election Day? thanks for any info.

Lisa Sorg

@Page: Yes, if you go to the wrong precinct on Election Day, you'll be asked to fill out a provisional ballot. The county board of elections will then review your ballot to see if it can be counted in full or in part. For example, if you voted in the wrong precinct, your vote for president would be counted because it's not tied to your precinct. However, if you voted for a statewide or local candidate that is tied to your precinct, that would not count.

Gerry Cohen

Here are the 20 ballot styles for the March 15 primary:

There were 25 for the 2012 presidential election in Durham

Gerry Cohen

I think that encouraging people to vote out of precinct is a lousy strategy. It is time consuming and labor intensive for the voter and the election official at the precinct and it increases line length for everyone else. I view it as an important protection for individual voters. IT IS A TERRIBLE GET OUT THE VOTE STRATEGY FOR GROUPS TO USE.


Gerry, I have never heard of anyone urging a voter to vote out of precinct, for the reasons you list. do you know groups that use this as a strategy?

Gerry Cohen

Page I know that in other counties there have been election day efforts to get groups of voters to the nearest poll (not their correct one). I'm not saying anyone in Durham used this as a strategy. I've never worked election day GOTV in Durham

Will Wilson

A party might use it as a vote suppression technique -- create long lines in strongholds of the other party.


thanks, Gerry. Those of us doing GOTV in Durham will have to double down on making sure people know where to vote. I agree that there are many ways to suppress the vote this fall.

Will Wilson

Page...if they're intention is to create long lines, vote suppressors know exactly where to try and vote. But you're right, it makes getting mistaken voters to the correct location all the more important.

Todd P

The GOTV emphasis should be on early voting and vote by mail. With early voting, there are no precincts and any site will do. With vote by mail, there's no precinct and no voter ID requirement either.

If 13% of the March provisionals were due to ID issues and 75% due to out of precinct, early voting and vote by mail would eliminate about 90% of the provisional ballots.

Holly Francis

I voted on June 1 and was given a ballot with ONLY the judge candidates, no Congressional candidates - was this correct? I was previously in District 1, Ward 1, Precinct 7 but with all the changes I have no idea where I fall now.

Also, since I've been having some hip problems I parked in the handicapped area right in front of the BoE entrance and thought someone would bring voting materials to my car. There was a man sitting in the shade of trees right in front of my car but after several minutes of having him ignore me, I finally got out of my car and limped into the building to vote. Are only folks with Handicapped hangtags allowed to vote from their cars (I don't have one since my problem is very recent)?

Thanks for your helpful info above!

Gerry Cohen

Holly there are no Democratic Congressional primaries in Durham. Republicans in six south Durham precincts do have a congressional primary. Everyone gets Supreme Court

Gerry Cohen

If you want to track early voting and mail in voting for the June 7 primary go here, it's updated each morning at 10 am with previous days early vote and mail ins. It will likely include the election day ballots sometime in July:

I will try to also post the March 15 primary and 2012 general election Durham data

Gerry Cohen

March 15, 2016 Durham election data http://www.carolinatransparency.com/votetracker/prim2016/county/DURHAM

Gerry Cohen

November 2012 Durham County voting http://www.carolinatransparency.com/votetracker/gen2012_final/county/durham

Joseph Fedrowitz

@ Holley: There is supposed to be a Curbside Voter sign outside each polling place, whether Early or Election Day. And no handicap sticker nor explanation is required to vote Curbside.

@Todd: Well, since Absentee voting does *not* require ID, your solution would work even better. But until then there is a dynamic and opposing situation building. After years of freely allowing out-of-precinct voting on Election Day, it will be difficult to explain to folks why they now cannot. It's made worse by the proliferation of Early One-Stop sites now required because of the shorter early voting period.
Say that you and your husband both work at NCCU or at/nearby any other site that is both an Early Voting site and an Election Day precinct site. But you live on the other side of the county. Your husband votes on the Friday before election day and it's quick and easy. You go to vote there on Election Day. But now *you* have to vote a provisional ballot. A ballot that the NCLeg. wants to invalidate.
Another consequence of out of precinct voting seldom addressed is the inability to vote for all offices you may be eligible to vote for. On Election Day, precincts do not have all ballot styles...just those for that precinct. So if you are voting out of any of the NC or US districts, which is very likely, your candidates will *not* be on your ballot, but others will. And remember, when the BOE workers go thru those ballots they then have to decide what races to count. Say you are in Cong. District 2, but vote in Dist. 4. Then your ballot goes in the "do not count US Cong. race" pile. Add in NCLeg, multiply.....and you end up with all sorts of piles of provisional ballots.
It is a horrible system, made to fail.

Gerry Cohen

I've gotten the May 31 revised provisional spreadsheet, it has 683 approved Democrats and unaffiliated voters, and excludes the 147 that were approved for counting last week. (I can't tell if the unaffiliated voted a Democratic ballot, GOP ballot, or stuck with just bond issue/school board, but I include all of them here. There are 501 Democrats and 182 unaffiliated. It being Durham probably most of the Us voted in the Democratic primary.

Reason for provisional:
Out of precinct 83%
ID issue 5%
other 12% (mostly registration found)

Black 61%,
White 26%
Asian 2%
11% blank, other, or unknown

This is likely the universe getting Democratic primary ballots mailed to them

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