Election law roundup

Published May 11, 2021

By Rick Henderson

House Bill 782, a measure changing the deadline voters could submit their absentee ballots and have them counted, has gotten better with revision.

But it wouldn’t meet a (stated) goal of its sponsors, and would take away a benefit North Carolina voters have enjoyed for more than a decade. It certainly breaches the “do no harm” standard I’m using to view election reforms.

As a general rule, election reforms should make it easier to vote and harder to cheat. While this phrase has become a mantra among Republicans and conservatives, even my progressive counterpart Bob Hall used a version of it in the op-ed we co-authored a couple of months ago about H.R.1, the “For the People Act.”

Along with ease of voting, policymakers should value comfort with voting. Convenience. They should avoid ending or revising familiar habits — unless those processes seemed to welcome irregularities, ambiguity, or fraud. (Think of the Florida punch card ballots in 2000 that led to such turmoil. Voters may have loved punch card ballots. But they could be … problematic. The state wisely scrapped them.)

It’s my main beef with H.B. 782, “Election Certainty Act.”* The version that passed the House elections committee Wednesday would require absentee ballots to be filed with or received by the local elections board no later than 5 p.m. the day before Election Day.

The goal, sponsors stated, was to provide voters confidence that they’d know the winners on election night. It also would limit the prospect of ballot harvesting and end any uncertainty over whether late-arriving absentee ballots had been postmarked in time — if at all. People who failed to return an absentee ballot before the deadline would have to vote on Election Day.

Rep. Destin Hall, R-Caldwell, said the bill would prevent “this media frenzy where ballots are being counted after Election Day and people are seeing that on TV and wondering if hijinks are going on.”

Maybe. But if the bill becomes law, it would change nothing about election results. Zero. Nada. Zilch.

For starters, elections aren’t official before they’re certified — 21 days after the election. County election boards canvass ballots and conduct audits a few days after the election, but (barring recounts, lawsuits, or other challenges) the results remain unofficial until certification.

Moreover, in close races, voters still wouldn’t know the outcome on election night. Most late-arriving absentee ballots wouldn’t be counted until the day after the election. It’s in the bill.

The committee added this revision after sponsors reportedly got an earful. Gerry Cohen, a Wake County elections board member and the General Assembly’s former staff lawyer who vetted legislative language, told me he — and probably other elections officials — contacted committee chairman Rep. Gray Hall about a big problem with the original version of the bill.

In the first version, county elections boards would meet at 5 p.m. Election Day and start counting absentee ballots. All of them. Including the most recent ones submitted. While polls were open.

This would have posed a logistical (and potentially legal) nightmare. While polls are open, board members are monitoring potential problems with voting machines, poll watchers, poll workers, and voters. Spiriting them away to count ballots would undermine election integrity when the clock is running out. Lines at the polls are often the longest, voters are most harried, and technical problems can cause delays and other hassles.

The current version is better. It says county boards will meet at 5 p.m. the day after the election to count any late-arriving absentee ballots. Board members could get a little sleep before they handled the final batch of ballots.

Even with that change, I’m not a fan of H.B. 782. Since 2009, state law gave voters who had their ballots postmarked on Election Day or before a three-day grace period. Their postmarked ballots counted if they’d arrived at the local elections board within three days of the polls closing.

Ending this grace period would require voters who relied on mail service to cast ballots long before Election Day, or pay FedEx or some other express-delivery service to get ballots to the county on time. People couldn’t account for last-minute scandals or other irregularities before they voted absentee.

Ending the grace period also would remove a convenience voters appreciate. Katelyn Love, the State Board of Elections’ general counsel, told the committee more than 11,600 ballots were received between Nov. 4 and Nov. 6, 2020. 

Clearly, if voters had known they had to get their ballots in by 5 p.m. Election Day, many if not most of those ballots would have been cast earlier and counted. But not all of them would have arrived on time. More than 2,000 additional ballots wound up at county elections boards between Nov. 7 and Nov. 12. The election for chief justice of the Supreme Court was decided by 401 votes. Late-arriving ballots (and the voters they represent) mattered.

The bill passed the committee along party lines. If it passes the House and Senate with no Democrat support and Gov. Roy Cooper vetoes it, then it won’t matter. 

Except, once again, Republican lawmakers seem determined to mess with elections in a way that would inconvenience voters — and wouldn’t fix the problem they’ve targeted.