Will elections boards permit “Cheri-mandering” of early and provisional ballots?

As of November 19, NC Supreme Court Chief Justice Cheri Beasley lost her reelection bid to Justice Paul Newby by 406 votes. Not taking “no” for an answer, Beasley has requested a recount (as is her right). She has also filed protests in numerous counties to get them to change their vote tallies.

Beasley’s protests, however, are a witch’s brew of incompetence and malice.

False claims mar Beasley protest

As seen on the NC State Board of Elections’ (SBE) 2020 protest filings page, the Beasley campaign has issued cookie cutter protests with numerous county boards of elections. Here we’ll review the Beasley campaign’s protest to Bertie County that was entered on the morning of Friday, November 19.

The Beasley campaign subcontracted supervision of data gathering and analysis to Oliver Ho in New York. Ho testified several times in his affidavit attached to the protest that the “Data Team” under his supervision made a “good faith effort” to match the lists of provisional ballots and absentee ballots that were not accepted with voter files.

However, the results of that effort are comically bad, as pointed out in a report by WRAL:

"The 76-page affidavit accompanying the protest listed the ballots in question, but it wasn’t difficult to find problems with it in our look at just a handful of ballots listed in Wake County.

"Garner resident Starr Goins was upset to hear that Beasley’s protest said her ballot was rejected. The affidavit stated that her address – a newly built home – wasn’t recognized by the county elections office…

"But Goins’s ballot, and two others WRAL News found listed in the affidavit as rejected were actually counted, according to Wake County elections director Gary Sims.

"WRAL News cross-checked the addresses of six other “Wake County” voters listed in the affidavit with county property tax records. All six actually live at addresses outside Wake County, making them ineligible to vote in Wake County.
If one spot check of a single county revealed several false complaints for ballots that were actually accepted and for ballots that were rightfully rejected, it is a safe bet that the rest of Beasley’s complaints are similarly riddled with false claims."

Beasley’s protests started on the wrong foot.

And that is before we get to malice.

Data indicates that Beasley campaign protests discriminate against some voters

The Beasley campaign claims their protests are to ensure that “every single vote has been counted” and that they filed the protest to “ensure over 2,000 absentee and provisional ballots that were wrongfully rejected are included in the final tally.”

However, a review of election data provided by the SBE finds that there were 23,604 provisional ballots that were not counted and 11,947 absentee ballots that were either missing witness information, returned after the deadline, or otherwise had illegalities that were not fixed (or “cured”) before the November 12 deadline.

What this means is that Beasley’s team sorted through those 35,551 ballots, and possibly a few more, to come up with their list of 2,000+ ballots that were submitted with their protests.

How did they narrow those lists? They publicly stated several criteria for inclusion, such as the claims noted above that a ballot was wrongfully rejected because the county board did not recognize a voter’s address, or that the county board wrongfully believed that a voter did not live in the county (see “Factual Basis and Legal Argument” on pages 5-9 of the complaint for a full list).

None of those publicly stated criteria indicate a partisan bent in the searches. Democrats account for 13,441 of the pool of roughly 35,551 ballots that were not counted, or 37.8% of those ballots.

If the Beasley campaign is actually seeking to “ensure over 2,000 absentee and provisional ballots that were wrongfully rejected are included in the final tally,” the number of Democrats in the list of about 2,800 ballots submitted in their protest should be roughly proportional to the number of Democrats in the list of 35,551 people whose ballots were not counted. If it is not proportional, that would suggest that the Beasley campaign is also using a secret criterion for picking ballots to protest that they are hiding from the public.

Analysis of the Beasley campaign’s protests by the Raleigh News & Observer indicates that they did secretly use just such a partisan criterion:

"In their submissions to county election officials, the Beasley campaign did not include data on individual voters’ party affiliation.

"But an N&O analysis that matched more than 2,800 names on the campaign’s list with public election data shows that about 70% identify as Democrats. Another 800 are unaffiliated.

"Only nine voters matched from Beasley’s list were members of the GOP – less than 1% of the total."

How likely was it that the Beasley campaign ballot protests are an honest attempt to protect the rights of all voters and not a partisan hack job? Pretty low (News & Observer):

"Regardless, the rough percentages indicate 'a list that is bereft of Republicans,' said Chris Cooper, professor of political science and public affairs at Western Carolina University.

 “There is no way it is an accident that you are getting fewer than 20 Republicans out of over 2,000 matched voters. There’s just no way,” Cooper said. “Davidson football has a better chance of defeating Ohio State – and they don’t even have a football team…”

“This is data pulled to make a point. These are not data that are pulled to be fair,” Cooper said. “These are data pulled to try to get Beasley elected. Let’s call it for what it is.”

Lest you think this is just normal partisan hackery, the N&O article points out that protests from the Paul Newby campaign (mostly about county boards counting ballots from people who died before election day) do not have such a partisan skew.

So what?

The Beasley campaign’s list of protested ballots is biased in favor of Democrats. Beasley is a Democratic candidate, so why should this be a concern? There are two reasons. The first is that it makes plain that the Beasley campaign’s claim that they are seeking to ensure that “every voice is heard” is a lie.

The second reason is that, if county boards of elections accept large numbers of previously not counted ballots from Democrats based on the Beasley campaign’s protests while not accepting previously not counted ballots from Republicans that have similar problems, those boards run the risk of not affording voters equal protection of the law based on their political affiliation (a claim at the heart of two successful redistricting lawsuits last year).

The Beasley campaign’s claim of wanting to make sure that “every single vote has been counted” is false and malicious. Also, Chief Justice Beasley cannot claim that she did not know what was being done in her name; she signed the protest form herself:

 NC Supreme Court Chief Justine Cheri Beasley’s signature on the protest form filed in numerous county boards of elections. Source: Beasley campaign protest to Bertie County Board of Elections