'Problems in our elections'? NC Republicans say bill will fix them. Democrats aren't convinced

The North Carolina House passed major changes Tuesday to the rules for elections — and how election results could be audited. Both could go into effect for the 2024 elections if they become law.

One bill was celebrated for earning bipartisan support. The other was decidedly partisan and could strengthen Republican control over election rules for years to come.

At issue were two bills: House Bill 770, which would make people’s ballots a public record, and Senate Bill 749, which would overhaul the makeup of the state and county election boards.HB 770 would allow individuals or private groups to request to see all of the state’s ballots after an election, to conduct their own audit in addition to the audits the state government already does. It was originally filed by a group of far-right lawmakers, raising concerns that it was based on false claims of a stolen 2020 election pushed by former President Donald Trump. But GOP lawmakers worked with Democratic colleagues and state elections officials to make changes in recent days. It passed Tuesday with broad, but not unanimous, support. Nonetheless, bill sponsor Red. Ted Davis, R-New Hanover, declared it a bipartisan effort on Tuesday.

"It’s a significant, marked improvement from the first draft," Paul Cox, the top attorney for the State Board of Elections, said during a committee hearing earlier in the day.

SB 749 would remove the governor’s ability to appoint members of the State Board of Elections — as well as all 100 county election boards — and instead transfers that power to the legislature. It also would end the process of the governor’s political party getting the edge over the other party with a 3-2 majority on each of the five-member boards, and would instead create evenly tied boards. In effect, it would end the Democratic Party’s control over election rulemaking ahead of the 2024 elections.

It’s highly similar to other failed proposals to make similar changes, which Republicans have tried passing at a near-constant basis ever since voters elected Gov. Roy Cooper, a Democrat, in 2016. One of the changes was struck down in court as an unconstitutional power grab. Then when lawmakers suggested changing the state constitution to let it happen, voters overwhelmingly rejected the idea at the ballot box in 2018. Every living ex-governor, Democratic and Republican alike, banded together that year to publicly denounce the idea.

But Republican lawmakers are trying again, brushing aside the 2017 court ruling and the 2018 referendum defeat, saying they hope that a new GOP majority on the state Supreme Court will allow the changes to happen this time around.

Rep. Destin Hall, one of the top Republican leaders in the House, said he thinks the Supreme Court got it wrong before. It’s his personal opinion, he said, that the legislature can remake the elections boards and seize the power of appointing board members from the governor.

“The people act through their elected leaders in the General Assembly,” Hall said. “Therefore, we have the ability to make these appointments.”

Chaos in Electoral College, early voting?

There are two main concerns critics of SB 749 have with the bill’s potential consequences, both stemming from the fact that it would create a politically even board.

If county and state boards found themselves deadlocked by ties, it could mean no early voting sites could be approved, for example, and the county in question would only be allowed a single site at the county elections office.

Such a change would affect the state’s urban, heavily Democratic counties to a greater extent than the more rural Republican-leaning areas. In 2020, for example, Wake County had 20 early voting sites to serve the 374,000 locals who chose to vote early. That’s more early voters than there are total people in 96 of the 100 counties statewide.

Rep. Maria Cervania, D-Wake, is a former Wake County Commissioner. On Tuesday she urged changes to the bill, given the possibility that Republican-aligned election board members could use a tied elections board under SB 749 to slash early voting sites in Wake County — where Trump won just 36% of the vote in 2020 — as well as in other large counties.

“I cannot even imagine” the chaos it would cause, Cervania said.

Hall dismissed that concern, saying it probably won’t be an issue and noting that a handful of small states elsewhere in the country don’t offer early voting at all.

The other concern among opponents is that politically motivated election board members could simply refuse to certify the election victory of a candidate their party opposes. There’s a particular concern for the 2024 presidential election, and other future presidential races. If the elections board doesn't certify a presidential winner, the state legislature gets to decide who should receive North Carolina's votes in the Electoral College —and lawmakers would not have to abide by the popular vote.

Motivations for the change

Hall said he and other GOP leaders are pushing hard for the changes in part because of a legal settlement the state elections board approved in 2020 elections to extend the grace period for mail-in ballots to arrive after election day. Republican lawmakers have since voted to entirely eliminate the normal three-day grace period, and have also taken away the election board’s ability to approve legal settlements without legislative approval.

But going a step further and completely overhauling the board’s political structure, Hall said Tuesday, is needed because of that 2020 settlement — something he called the result of political collusion by Democrats. What he didn't mention, however, is that the vote to approve the settlement was 5-0. It won unanimous support among the election board’s Democratic and Republican members, even if GOP state lawmakers opposed it.

Republican legislators have for years called that settlement an example of partisan collusion, despite its unanimous bipartisanship. Now, they say, they need to overhaul the elections board because people have less faith in the process.

“We don’t want folks to look at it and think that fraud occurred, that something improper occurred,” Hall said Tuesday. “But it’s not hard to see how folks might think that there are problems in our elections, when the very entity that’s overseeing them has a partisan lean.”

Democrats say that’s all clearly a pretense: “It’s not about governing,” said Rep. Marcia Morey, D-Durham. “It’s about politics.”

Post-election audits

The idea behind the other bill, HB 770, is to make ballots a public record. Voters' names and other identifying information would be removed to protect voters' privacy. The general goal is to let individuals or private groups do their own audits of election results, in addition to the audits the state already conducts.

Democrats and the State Elections Board lawyer said Tuesday they appreciated recent changes but wanted one more. They urged lawmakers to make some final changes before Tuesday's vote to more solidly protect people's privacy.

They said that even though ballots would have people's names redacted, there are still privacy concerns about identifying voters’ identities in races or areas where only a few ballots would be cast — such as in very rural areas of the state, or a Republican primary in a heavily Democratic area.

“Transparency is great, but we don’t want to disclose the specific voters’ information," Rep. Pricey Harrison, D-Guilford, said, urging more changes to the bill to address those concerns.

For example, Durham's city limits extend into a small sliver of northern Wake County. Election records show that in 2019, eight Wake County residents voted in the Durham mayoral race, splitting their votes 5-3.

Privacy advocates are concerned that in any situation with a small numbers of voters in a certain precinct, someone who knew that their neighbor supported one or two candidates could, in theory, use that information to narrow down the ballots and figure out which ballot probably belongs to their neighbor — and then look at everyone he or she voted for.

Rep. Allison Dahle, D-Wake, proposed an amendment making some changes along those lines. It was voted down in committee.