State board waits on Durham County election appeal

Rachael Riley; rriley@heraldsun.com

North Carolina’s Board of Elections will wait on an order, records and transcripts, before deciding to act on an appeal related to the Nov. 8 election in Durham County.

The state board held an emergency meeting Sunday and discussed an appeal filed by Thomas Stark, a Durham County resident and attorney, asking for a vote recount here.

Board members Joshua Malcolm and James Baker questioned news reports from Gov. Pat McCrory's campaign suggesting it would withdraw other protests statewide if Durham County recounts, and produces the same results.

Josh Lawson, legal counsel for the state BOE, said he has not received anything from the campaign, and that Stark, who said he is not a representative of the campaign, is not aware of the matter.

As of Sunday, Democrat Roy Cooper led McCrory by more than 7,700 votes.

"We all understand that there will be a governor, whoever it is, in the next couple of weeks, and everything's been on a compressed timetable," Lawson said.

Lawson said he received an expedited appeal relating to Stark’s first protest after 4 p.m. Saturday.

The Democrat Party’s counsel indicated “he believes no reason to expedite” the process, and statute provides adequate means,” Lawson said.

Durham County’s BOE held a Nov. 18 evidentiary hearing on Stark’s first protest, which alleged more than 94,000 ballots were unreliably tabulated when memory cards did not load into the state’s system.

Durham County’s board denied Stark’s petition, after hearing both manufacturers of the voting machines and a state board of elections employee testify that the cards exceeded the machine’s limit of 65,525, but votes recorded on tape are accurate.

Although the 94,000 ballots were manually entered, Brian Neesby, a business systems analyst for the North Carolina Board of Elections, said there were small tabulation errors in uncontested county races and Durham County's four bond referenda, but none affected the race for governor or president.

Stark’s appeal alleges the same card from the tabulators was discussed at the hearing.

“At this point, it cannot be determined whether the number of ballots in the sealed boxes from the several tabulators equal the reported results or not,” Stark said. “That determination cannot be made until the ballots are counted.”

State board members questioned if Stark’s appeal takes into account allegations of an “absentee ballot mill situation.”

“There is a vague reference to additional protests in this appeal,” Lawson said.

Lawson said Stark asked the state to extend its jurisdiction to take up “some pieces” of the protests that were dismissed.

Lawson said Stark indicated similar filings will be “forthcoming,” relating to protests filed by John Posthill, who witnessed Durham County’s input of data into the state board’s system.

Posthill’s first protest questioned if provisional ballots were counted twice, both during the tabulator process and separate provisional counts.

Since the protest, county representatives said they found only one provisional ballot that was counted entered into the tabulator.

The board voted Nov. 21 to defer making a decision related to Posthill’s allegation that seven ballots were cast by residents who are guilty of a felony.

Marie Inserra, assistant county attorney, said her office checked the allegations and determined four of the individuals have a felony conviction and voted by mistake.

The Durham County BOE denied Posthill’s petition alleging 17 individuals cast ballots both in Durham County and another state. One of those voters told the board she recently moved to the area but did not vote anywhere else but Durham County.

The board denied Posthill’s fourth petition, based on lack of evidence, which alleged a scheme in the state to operate an absentee ballot mill and cited Bladen County as an example.

Kim Strach, executive director of the state BOE, said although the state is looking into allegations relating to absentee ballots in Bladen County, there is “no knowledge” of “criminal wrongdoing,” in Durham County.

Another request was since filed asking the county to provide access to more than 6,000 Durham County absentee ballots, which officials said they need to redact identifying information.

Lawson said he believes Stark’s appeal is related to the first protest and 94,000 ballots.

Secretary Rhonda Amoroso said Stark’s appeal seems to “be rolling everything into one general” request.

“He’s asking to hand count the ballots and he does kind of bring in the whole kitchen sink if you will -- imagine 94,000 ballots,” Amoroso said.

Amoroso questioned how the State Bureau of Investigation’s look into Durham County’s March primary allegations of mishandling provisional ballots, which Stark referenced in his appeal, relates to the matter.

Lawson said it’s a separate incident and the employee in that matter no longer works for Durham County, and it is not related to the technical glitches from the November election.

State officials said they would need transcripts and documents from the Nov. 18 hearing to determine if Durham County’s BOE acted appropriately, before considering Stark’s appeal.

Board Chairman Grant Whitney Jr. directed state staff to check with the county.

“We need some certainty in our political processes here,” Whitney said.

Durham County’s BOE is expected to meet Tuesday relating to the protest that felons allegedly voted in the election.