State Board sets 5 pm Monday deadline for Durham recount

Published December 2, 2016

by Dan Way, Carolina Journal, December 2, 2016.

The State Board of Elections has set a deadline of 7 p.m. Monday for a machine recount of more than 90,000 disputed ballots that were not tabulated by voting machines on election night. The state board issued its order late Thursday after meeting much of the day with Durham election officials.

The action follows a 3-2 Republican majority party-line vote by the State Board of Elections on Wednesday night overturning the Durham board’s decision two weeks ago to deny a recount protest by Durham attorney Thomas Stark.

Republican Gov. Pat McCrory has suggested he would not seek a statewide recount of votes if the Durham recount were allowed to proceed and it showed no massive problems.

As of 3:30 p.m. Thursday, McCrory trailed Democratic challenger Roy Cooper by 10,257 votes. By state law, a candidate seeking a recount in a statewide race must trail his opponent by no more than 10,000 votes. Given the 94,000 last-minute absentee ballots in contention, Durham County is McCrory’s best hope for finding a large miscounted vote, and to move back within the 10,000-vote range.

“The State Board of Elections Office is working diligently to complete the statewide canvas by Dec. 9, which is a week from Friday. There’s obviously moving parts still, but that’s the hope,” board spokesman Patrick Gannon said on Thursday.

Stark, who filed his petition as an individual, not in his role as counsel for the North Carolina Republican Party, said Wednesday night the Durham board “could do it by the end of the week.”

During his testimony before the board Stark said in discussions with Durham Elections Board personnel, he concluded that the recount could be wrapped up in seven hours.

Kate Cosner, interim director of the Durham board, testified she was not as confident of Stark’s projection, but said it might be possible to complete the recount in eight hours.

“The county board will have to set up the procedure for it. The state board is required to give them some procedures, and they will go through that process,” Stark said. “It will involve deciding the time frame, and deciding how many tabulators they’re going to use.”

“In terms of the timeline and stuff like that, we don’t know yet,” Gannon said. “Durham County elections will have to notice a meeting once they get the order, and then they’ll approve a process, I assume, and start the recount after that.”

The state board will offer Durham officials guidance, which likely will include what machines to use, and the procedures for setting them up. Results of the recount will be sent to the state board.

Partisan divides surfaced early in Wednesday’s appeal hearing, and followed through to the very end.

Democratic board members Joshua Malcolm and Maja Kricker objected at the outset to allowing any evidence or testimony that was not heard during Durham’s preliminary and evidentiary hearings. Republican chairman Grant Whitney, and GOP board members James Baker and Rhonda Amoroso, said they wanted to air all available evidence in order to bring the matter to a close.

As it turned out, both sides evoked new information and material from witnesses during the hearing.

In closing comments preceding their vote, state board members issued sharp jabs at one another, and disagreed whether what happened in Durham on election night rose to the legal definition of an irregularity, which allows for a recount, or there was substantial evidence that it cast a cloud over the outcome, another recount criteria.

Baker said there were irregularities in the conduct of the vote because more votes were cast than election machine software with limited storage capacity were able to record, making it necessary to switch from electronic counts to paper recording.

He also cited McCrory’s 50,000-vote lead at 11:30 p.m., with 99 percent of all precincts reporting, which evaporated “in the blink of an eye” when the last-minute Durham absentee vote gave Cooper a 5,000-vote lead.

“Now that is the way that Madison County — no offense to my home county — used to do elections back in the 1940s and 1950s. You saw how many votes you needed, and then you got that many votes with a switched box,” Baker said. “And I’m not saying that’s what happened here, by any means.”

He said he believes “the perception by the public is it was a mammoth problem” in Durham County on election night, and neither gubernatorial campaign or the public should be left wondering after the election if something was amiss. Nor should the board open itself to speculation that it was trying to hide something by not ordering a recount.

Baker said he sees no harm in rescanning the ballots to ensure electoral integrity. He even used Cooper attorney Kevin Hamilton’s own testimony against him to classify a recount as a reasonable path.

“I think as has been presented by the Democratic/Cooper side, they don’t expect it to change anything. They have great confidence in the way the election proceeding was run.  As Mr. Hamilton said a minute ago that’s what’s so great about our system,” Baker said.

But Malcolm vehemently argued a recount lacked legal basis because what happened in Durham was not an irregularity, but simply a process that relied on backup procedures. He told Baker anyone who understands how elections run would know a backup plan is not an irregularity, and explained why he believes a recount is harmful.

“Every day men and women put on uniforms, and protect our Constitution. The people that interpret that Constitution are the people who sit in the General Assembly,” who write the laws, Malcolm said, and the board is “duty-bound” to them by their oaths of office. “The Constitution talks to me through the statutes.”

In one heated back-and-forth, Malcolm demanded of Baker, “Tell me where the line of irregularity stops.”

“I don’t have to do that, sir. We don’t have to play that game,” Baker shot back.

Kricker agreed with Malcolm that the way in which Durham handled the machine problem was not an irregularity.

“I think it’s a tragedy that we are not upholding the Durham County board,” which had a careful hearing and deliberation, and conducted the election with best practices, Kricker said. “This sets a precedent, and I don’t think it’s a precedent we should set.”

But Amoroso said there is “a taint” over the election that statutes allow the board to act on in demanding a recount.

And she said the board precedent in the past several years is “we’ve ordered several new elections where it was way less than what we’re seeing here just in terms of the irregularity of it.”

“But what I’m also concerned about here is what I’m calling a dark cloud over Durham County,” Amoroso said. “Durham County in the last six months, I guess since the primary, has had some issues. People have been let go, fired, there was a system error there in Durham County.”