An analysis of the Durham election snafu: It's about more than bad math. It's also the GOP legislature.
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)
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.
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.
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.