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ROBESON COUNTY FACTUAL BASIS & LEGAL ARGUMENT 6. Provide all factual allegations in support of your protest. If any fact you allege is outside the scope of your personal knowledge, you may attach affidavits from those who have personal knowledge of that fact. All facts you allege in connection with this protest must be true and accurate to the best of your knowledge and brought in the sincere belief that the facts alleged form a good faith basis to protest the conduct and results of the election. Absentee Mail Ballots Commencing on September 4, 2020 each North Carolina county board of elections (“County Board”) transmitted absentee ballots and ballot applications (in the form of container-return envelopes) to registered voters who had requested them. The applicable provisions of N.C.G.S. § 163, as amended by House Bill 1169, and the Numbered Memos promulgated in accordance therewith provided certain guidance with respect to the burdens imposed on voters seeking to vote by absentee ballot. Upon receipt at each County Board, such applications were to be examined for compliance with applicable laws and guidance provided by the North Carolina State Board of Elections (“State Board”). In addition, several court orders provided additional guidance to the County Boards. The process of review and approval of absentee ballot applications resulted in the occasional wrongful denial of voter applications for absentee ballots. The protestor alleges that these wrongful denials have deprived voters of their right to cast absentee ballots, thus, casting doubt on the apparent results of the election.1 A. Wrongful Rejection of Absentee Ballots – All Required Information Democratic Party volunteers reviewed absentee ballot container-return envelopes (“absentee envelopes”) in counties throughout the state. Some counties denied the Democratic Party its right to inspect absentee envelopes under North Carolina law and Numbered Memo 2016-25, thereby denying the Party and the protestor an opportunity to identify other absentee envelopes that would have met the criteria for Exhibits A-1 and A-2. The absentee envelopes associated with the voters listed in Exhibit A-12 appear to have all required fields completed and should have been approved by the Board for counting. Based on a review of data uploaded to the State Board website (hereinafter, “SEIMS data”), these voters’ ballots were not accepted. These ballots should be approved and counted. The absentee envelopes associated with voters listed in Exhibit A-2 appear to contain all required voter and witness information, except that some of the information was entered outside the prescribed field, and some of the witness address omit city, state, and/or zip codes. 1 To the extent these denials resulted from the failure of your county board to individually review and vote on each absentee ballot recommended by staff for disapproval, that would provide an additional basis for a protest under the State Board’s directive that “the board must individually review all ballot envelopes that: (1) have been recommended for disapproval by staff ….” Numbered Memo 2020-25 at 5. 2 For ease of transmission, the Exhibits are provided in PDF format. Counsel will provide the native Excel files upon request. PPAB 5959292v1 State law does not require a container-return envelope to be deemed deficient if a voter, witness, or assistant provides information or a signature outside of the prescribed field.3 The only requirement is that the voter and witness supply the required information on the envelope itself, and that the County Board be able to identify which signature belongs to the voter and which signature belongs to the witness/assistant, respectively. Based on a review of the SEIMS data, however, these voters’ ballots were not accepted. Moreover, state law and State Board guidance are clear that if an absentee envelope is missing the witness’s city, state, or ZIP code, the County Board cannot invalidate the envelope and should, instead, determine the correct address.4 Even if both the city and ZIP code are missing, a County Board must determine whether the “correct address can be identified” before rejecting the ballot.5 Specifically, County Board staff must use a tool—such as SEIMS, a county GIS website or office, or a similar tool—to look up the witness’s or assistant’s name and partial address and find a match. These ballots, therefore, should be counted. B. Wrongful Rejection of Absentee Ballots – “Received After Deadline” Numbered Memo 2020-22 requires County Boards to “conduct research to determine whether there is information in BallotTrax that indicates the date [the ballot] was in the custody of the USPS” and, further, to “conduct research with the USPS or commercial carrier to determine the date it was in the custody of USPS or the commercial carrier.”6 Exhibit B-1 lists voters who have a BallotTrax scan on or before November 3 but are marked as “Received After Deadline.” Under Numbered Memo 2020-22, these voters’ ballots must be counted. Exhibit B-2 lists voters whose ballots were received no later than November 5, including some received by November 3, which are also marked as “Received After Deadline.” A ballot that is received by November 3 must be counted. Moreover, it is implausible that a ballot received on November 4 or November 5 was not sent by November 3. Please re-review the ballot envelopes for any indicia of when the ballots were sent and, pursuant to Numbered Memo 2020-22, please “conduct research to determine whether there is information in BallotTrax that indicates the date [the ballot] was in the custody of the USPS” and “conduct research with the USPS or commercial carrier to determine the date it was in the custody of USPS or the commercial carrier.”7 3 See Numbered Memo 2020-19 (Aug. 21, 2020, rev. Oct. 17, 2020). 4 G.S. § 163-231(a)(5); Numbered Memo 2020-19 (Aug. 21, 2020, rev. Oct. 17, 2020) at 2-3 n. 3; Numbered Memo 2020-29 (Oct. 4, 2020). 5 Numbered Memo 2020-29 (Oct. 4, 2020) at 1. 6 Numbered Memo 2020-22 (Sept. 4, 2020) at 2. 7 Numbered Memo 2020-22 (Sept. 4, 2020) at 2. - 2 - C. Wrongful Rejection of Absentee Ballots – “Self-Reported Having Submitted Cure Certifications” Exhibit C lists voters who told Democratic Party volunteers that they had submitted cure certifications. Based on a review of the data, these voters’ ballots were not accepted. These ballots should count, provided that the voter submitted a valid cure certification. D. Wrongful Rejection of Absentee Ballots – “Voters’ Status Changed from ‘Accepted’ or ‘Accepted-Cured’ to a Rejected Status” Some County Boards appear to have engaged in the impermissible practice of re-reviewing absentee ballot container-return envelopes after they had been accepted. Section 163- 230.1(e) provides the procedure for a County Board’s review and acceptance of absentee ballot envelopes: At its next official meeting after return of the completed container-return envelope with the voter’s ballots, the county board of elections shall determine whether the container-return envelope has been properly executed. If the board determines that the container-return envelope has been properly executed, it shall approve the application and deposit the container-return envelope with other container return envelopes for the envelope to be opened and the ballots counted at the same time as all other container-return envelopes and absentee ballots. (emphasis added). The law provides no mechanism for the County Board to rescind an absentee envelope acceptance, and a decision to accept is thus final. Id.; see Arnett v. North Carolina St. Bd. of Elections, No. 20 CVS 12454 (Wake Co. Super. Ct., filed Oct. 5, 2020) (Order Denying Temporary Restraining Order) at 6 (“The decision of the board on the validity of an application for absentee ballots shall be final.” (citing N.C.G.S. § 163-230.1(f))); Id., State Board Brief at 12- 13. The only time such a decision may be reviewed is in the event of an election contest, not a voter challenge. N.C.G.S. § 163-230.1(f) (“The decision of the board on the validity of an application for absentee ballots shall be final subject only to such review as may be necessary in the event of an election contest.”); see Arnett at *6 (review of absentee envelope acceptance decisions is only proper “in the event of an election contest” (citing N.C.G.S. § 163-230.1(f))); N.C.G.S. § 163-278.300 (defining “an election contest filed under Article 3 of Chapter 120 of the General Statutes or G.S. 163-182.13A.”). A County Board’s decision to rescind acceptances of absentee ballot envelopes and issue cure certifications and new ballots any number of days or weeks after a voter has been informed their ballot has been accepted and counted runs afoul of State Board directives and threatens to disenfranchise voters. Numbered Memo 2020-25 makes clear: “voters must be contacted within one business day of when staff identify the deficiency. It is not permissible to wait for the absentee board meeting to contact the voter about a deficiency.” Id. at 4. Numbered Memo 2020-25 further directs elections officials to follow Numbered Memo 2020-19 in reviewing absentee ballot envelopes. Id. That Memo reiterates: “[i]f there are any deficiencies with the absentee envelope, the county board of elections shall contact the voter in writing within one business day of identifying the deficiency to inform the voter there is an issue with their absentee ballot and enclosing a cure certification or new ballot.” Numbered Memo 2020-19 at 3. A County Board - 3 - would violate these explicit requirements by taking absentee envelopes that already received final approval and then rescinding that decision.

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