Judge approves NC absentee ballot lawsuit settlement – but another could block it

A Wake County Superior Court judge approved the settlement of a lawsuit that would change how absentee ballots are handled in North Carolina for the 2020 election.

Wake County Superior Court Judge Bryan Collins said Friday afternoon that the settlement was fair and reasonable and not illegal or a product of collusion. But a federal judge held a hearing later Friday in a lawsuit seeking to block the settlement, and he said he’ll issue a ruling “in due course.”

Collins said the agreement was a compromise between two parties — the State Board of Elections and a political group representing retirees that filed suit Aug. 18 over the state’s various rules for mail-in voting.

The agreement would allow the board of elections to accept mail-in ballots up to nine days after the general election, as long as they are postmarked before Election Day, Nov. 3.

The settlement also would allow North Carolina voters who are missing a witness signature or address on their mail-in ballot to fix the problem without filling out a new ballot.

Lastly the agreement instructs county boards to designate separate absentee ballot drop stations at all one-stop early voting locations and county board offices.

More than 1.1 million North Carolina voters have requested absentee ballots so far, and more than 300,000 completed ballots have already been returned. Elections officials expect record numbers of mail-in ballots this fall because of concerns about voting in person during the coronavirus pandemic.

All five members of the State Board of Elections approved the settlement last week, but the board’s two Republican members soon resigned in protest. President Donald Trump’s campaign committee, the Republican National Committee and Republican leaders of the state House and Senate filed lawsuits in federal court seeking to stop the changes.

Among their objections, Republicans say the process for fixing mistakes on a mail-in ballot could invite fraud by letting people ignore the requirements to have a witness signature and address.

Attorneys representing Senate Leader Phil Berger and House Speaker Tim Moore, North Carolina’s top Republicans, told Collins on Friday that lawmakers were left out of the settlement process and that the agreement circumvented decisions by the General Assembly to require a witness signature.

Attorneys for Berger and Moore requested to join the lawsuit as defendant intervenors and asked that the settlement hearing be continued. But Collins said the law did not require the defendant intervenors to be part of the settlement negotiations.

Berger’s office put out a statement seconds after Collins’ ruling saying they would appeal. In the statement, Berger said Collins’ ruling to allow “unelected Democrats” to rewrite election law was unsurprising.

“A bipartisan supermajority agreed on the law governing this election months ago,” Berger said in the statement. “The secretive effort by Attorney General Josh Stein and the N.C. State Board of Elections to rewrite that law while voting is underway is wrong, inappropriate, and creating chaos.”

Berger and Moore also filed a motion in the U.S. Eastern District of North Carolina asking for a temporary restraining order, saying that the State Board of Elections was trying to nullify legislation enacted for the 2020 general election.

In June, the legislature created a new law that dropped a requirement that a voter have two witnesses when casting an absentee ballot. Instead only one witness would be required.

Berger and Moore argue that the court settlement was an attempt by election officials to get what they originally asked for but didn’t receive: no witness requirements.

The settlement allows board of elections staff to call voters without witness signatures and have them sign an affidavit affirming that they cast the vote.

On Wednesday, U.S. District Court Judge William Osteen scolded the board of elections for using the settlement to try to the law. In a separate case, Osteen ruled in August that people who vote by mail should get a second chance to fix any problems that might keep their ballot from being counted, but said this week the settlement in the state case went too far.

Bobby Burchfield, who represented Moore and Berger, told Collins on Friday that the settlement was a one-party deal with the State Board of Elections.

“This is not a fair to everybody,” Burchfield said.

But Collins said that because the pandemic is considered a natural disaster, the Board of Elections could make this change without legislative oversight. He added that the law did not require that Burchfield’s clients be consulted on the settlement.

He declined a motion to continue the hearing and instead listened to argument from all parties about why he should accept or reject the settlement order.

Alexander Peters, a familiar face in election lawsuits, represented the Board of Elections and said in the 24 years he has never seen an election environment like the one happening now. Peters said “people in high positions” are using media ads and lawsuits to sow distrust in the electoral system by claiming fraud and problems with the electoral system that aren’t there.

“The proposed settlement in this case involves ... narrowly tailored changes to a handful of procedures that are under particular strain this year because of COVID-19,” he said.

Awaiting a federal judge

Hours after Collins ruled, the same attorneys appeared before U.S. District Court Judge James Dever, who’s handling the lawsuits by legislative leaders and the Trump campaign that seek to block the agreement and return to the previous absentee ballot rules.

David Thompson, a Washington, D.C.-based attorney representing legislative leaders, told Dever that the elections board’s rule changes are “zigzagging back and forth” and “it’s enough to leave the heads of the voters spinning.”

Dever said he’ll issue a ruling “in due course,” but he questioned why the “rules have changed again since 300,000 North Carolinians have voted.” He also asked why the form the state wants to use to resolve ballots without witness signatures doesn’t require some form of witness signature.

Attorneys for the elections board argued that the changes are necessitated by the COVID-19 pandemic, comparing it to past elections when a hurricane prompted some polling places to be moved at the last minute.

And they raised the question of which judge will get the final say on the absentee ballot issue. Sarah Boyce of the attorney general’s office, which is representing the elections board, said Dever doesn’t have the power to overturn Collins’ ruling approving the settlement.

“Federal courts are not the venue for state appeals,” she said.

And Dever isn’t the only federal judge reviewing the matter. Osteen, the judge who said this week that the settlement doesn’t follow the terms of his August ruling, has scheduled a hearing for Wednesday in Greensboro.

This story was originally published October 2, 2020 at 4:06 PM with the headline "Judge approves NC absentee ballot lawsuit settlement – but another could block it."