"The public has a right to know the truth about what happened during this closed session and about the contents of the documents provided to all members," Board chair Damon Circosta said Friday. "Let's not lose sight of the big picture. In the midst of a pandemic, the State Board of Elections voted to settle outstanding lawsuits so that voters have clarity on what the rules are, how they can cast a secure ballot, and the process by which their ballot will be received, tracked, and authenticated."
[Ads /]
In an Emergency Meeting on Friday, the Board voted to waive attorney-client privilege two days after board members David Black and Ken Raymond, both Republicans, resigned in protest.
"Attorneys from AG Josh Stein's office did not advise us of the fact that a lot of the concessions made in the settlement have already been denied in a prior case by a federal judge and another case by a state court three-judge panel," Black wrote in his resignation letter.
"Any assertion that a member was misled or not fully apprised of the issues at hand is incorrect," Circosta countered. "This outstanding litigation creates uncertainty for voters and election administrators about the election process. In an effort to see if settlement was possible, I contacted counsel at the Attorney General's office, as they represent the State Board in litigation matters."
The documents do appear to show discussions among all board members about the parameters of a potential settlement, including extending the deadline for mail-in ballots to arrive at county boards of elections from Nov. 6 to Nov. 12, though they still must be postmarked by Election Day. Another issue surrounds how mail-in absentee ballots returned to county boards missing information, like witness signatures, can be fixed without making voters request a new ballot altogether.
"What this settlement does is very simple," Attorney General Josh Stein said. "We thought, here are three things we have to do that will make all claims go away, will allow administration of an election in a pandemic to ensure every vote counts. We won't have to pay any money from taxpayer to the plaintiff. The fact that there are people out there trying to cast doubt on the validity of mail in ballots is reprehensible and it's heartbreaking as an American."
The plaintiff in the lawsuit is represented by attorney Marc Elias, a nationally recognized litigator who has filed suit in dozens of states--and won. Elias, moreover, has also represented Democrats in high profile cases, including Governor Roy Cooper in the 2016 election, and Dan McCready, the Democratic candidate for the Ninth Congressional District in 2018.
[Ads /]
"What we have is a pandemic and we've made three tweaks to election law to respect that and reflect that so people know they can vote safely and their vote will be counted," Stein asserted. "Put all this political noise and theater to the side."
Indeed, North Carolina lawmakers had already made several changes to election laws to accommodate concerns about voting in the pandemic; House Bill 1169 passed with overwhelming bipartisan support.
Much of the Republican outrage to the proposed settlement is because they argue it unfairly changes the law without due process.
"The courts should not be utilized to make law and set policy that is contrary to the law and policy of the General Assembly," Senate President Phil Berger (R-Rockingham) said Friday. "Other defendants in the case, including the Speaker and me, were kept in the dark while secret negotiations played out. Why?"
Speaker Tim Moore (R-Cleveland), echoed that sentiment.
"No judge has ever heard this case, no lawmakers had any input in this. It's unbelievable to think this is something they're really trying to do with a straight face. There is no excuse for that type of brazen partisan act upending our election when it's already underway. Our state courts are not for fake lawmaking."
[Ads /]
Besides having issues with the process, Republicans were also incensed at the very changes proposed in the agreement.
"All of these sabotage efforts go to the question of when someone doesn't follow the rules to send in their absentee ballot," Rep. Dan Bishop (R-North Carolina) argued. "Anytime fraudulent ballots are allowed to flow in and be counted, the people who are disenfranchised are the legitimate voters. Every single time."
The settlement still must be approved by a judge, but Republicans--in Raleigh and in Washington--are vowing to block it, including a counter suit in federal court.
"Elections that are tainted by fraud, tainted by inappropriate actions by the Board of Elections, will be met with whatever resources can be brought to challenge that," Berger said. "It's critically important once Election Day is over and the ballots have been counted, win or lose, folks agree what the result are. These are the sorts of things that have the ability of creating uncertainty as to whether or not the result was the right result."