STATE OF NORTH CAROLINA WAKE COUNTY BEFORE THE STATE BOARD OF ELECTIONS IN THE MATTER OF: PROTEST OF ) ELECTION IN THE CONTEST FOR ) THE DEMOCRATIC NOMINATION ) ORDER FOR DURHAM COUNTY BOARD OF ) COMMISSIONERS BROUGHT BY ) MICHAEL PAGE, ELAINE HYMAN, AND ) FRED FOSTER, JR. ) THIS MATTER CAME BEFORE THE STATE BOARD OF ELECTIONS (“State Board”) following the filing of protests of election brought by candidates Michael Page, Elaine Hyman, and Fred Foster, Jr. (collectively, “Protestors”) regarding the Democratic nomination contest for the Durham County Board of Commissioners held on March 15, 2016. The State Board assumed jurisdiction over these matters on May 13, 2016 following an investigation into irregularities or misconduct affecting the tabulation of votes by staff at the Durham County Board of Elections (“Durham Board”). The State Board considered these protests on May 31, 2016 at a hearing in Raleigh, at which the Protestors Page and Hyman appeared pro se, and the Durham Board was represented by Chairman Bill Brian, Interim Director Samuel Gedman, and Durham County Senior Assistant Attorney Marie Inserra. Protestor Fred Foster, Jr. was not present. Candidates Wendy Jacobs and James Hill appeared pro se, and the State Board took comments from the public. The State Board conducted a hearing to review irregularities or misconduct affecting the canvass of certain ballots cast during the March 2016 statewide primary election to determine whether there was substantial evidence that a violation of election law or other irregularities or misconduct occurred and was sufficiently serious to cast doubt on the apparent result of the election. After reviewing written submissions and hearing argument from the parties, a report from agency staff, and the Durham Board, the State Board finds, concludes, and orders the following: FINDINGS OF FACT 1. Protestors were candidates in the Democratic nomination contest for the Durham County Board of Commissioners held March 15, 2016 (“Primary Contest”); and 2. On March 22, 2016, the Durham Board canvassed results for the Primary Contest in which voters could select up to five candidates, as follows: Candidate Votes Candidate Votes Wendy Jacobs 33,323 Michael Page 24,563 Ellen Reckhow 32,988 Elaine Hyman 23,776 Heidi Carter 29,747 Fred Foster 21,168 Brenda Howerton 27,084 Glyndola Massenburg-Beasley 19,762 James Hill 25,656 Tara Fikes 15,095 3. On April 8, 2016, the State Board was informed of certain irregularities known to the Durham Board, including that staff at the Durham Board had been unable to reconcile following canvass, that staff had reported that a number of ballots had been run through tabulators multiple times, and that staff had observed a “tote of unopened and uncounted ballots” that could not be found after canvass; and 4. Staff from the State Board opened an investigation into the matter, which included interviews with staff from the Durham Board, and extensive review of voting systems data, provisional and absentee ballots, and associated records obtained with the cooperation of the Durham Board and pursuant to a subpoena issued April 22, 2016 that possible irregularities and/or improprieties had affected a known group of voters; and 5. On May 9, 13, and 25, 2016, Michael Page, Elaine Hyman, and Fred Foster, Jr. respectively filed protests with the Durham Board, requesting a new election in their Primary Contest; and 6. On May 13, 2016, the State Board voted unanimously to assert jurisdiction over any and all protest originating in Durham County and arising out of the March 15, 2016 primary election pursuant to pursuant to N.C. GEN. STAT. § 163-182.12; and 7. Records produced by the Durham Board indicate that the Durham Board approved 1,039 provisional ballots prior to their canvass. An investigation by State Board staff concluded that canvassed results did not reflect the actual votes cast by those provisional voters, and that canvassed provisional results were unreliable due to manual edits and the double-counting of certain provisional ballots; and 8. State Board staff reported that they could not cure the inaccurate canvass and re-count all provisional ballots despite their best efforts because ballots that should count entirely and those that should count partially had become commingled at the Durham Board, because a number of 17-year-old voters had been issued improper ballot styles by county officials, and because the majority of provisional ballots could not be positively identified with particular voters; and 9. State Board staff reported that county elections officials had improperly affixed unique identification codes to 147 approved provisional ballots that had the positive effect of tracing those 147 ballots to particular provisional voters; and 10. The State Board tabulated 147 provisional ballots during its meeting on May 31, 2016. The ballots were counted fully or only partially to reflect the decisions of the Durham Board regarding the eligibility of those provisional voters. However, the Durham Board had voted to count 892 ballots during its canvass that State Board could not identify or recover; and 11. The identities of each of the uncounted 892 provisional voters is known; and 12. State Board staff reported that irregularities or misconduct affected the canvass of absentee votes, which did not include 18 absentee ballots discovered among documents produced by the Durham Board. The State Board tabulated the 18 absentee ballots during its meeting on May 31, 2016; and 13. State Board staff reported that no known irregularities or misconduct affected the canvass of votes cast a one-stop absentee locations or at precincts on Election Day; and 14. No known irregularity or misconduct affected the outcome in any contest in Durham County during the March 15, 2016 primary election. CONCLUSIONS OF LAW 1. Jurisdiction over this matter is proper pursuant to N.C. GEN. STAT. §§ 163-22(a), 163-22(d), 163-22(h), 163-182.6(b) and 163-182.12; and 2. Adequate notice of the State Board’s hearing was provided to all necessary parties; and 3. The State Board possesses authority to authorize a county board of elections to open voting “where a known group of voters cast votes that were lost beyond retrieval,” though “the recasting of those votes shall not be deemed a new election.” N.C. GEN. STAT. § 163-182.12. The two-week deadline described in the statute does not bar the State Board from facilitating voting under the provision when the defect was discovered by the State Board more than two weeks after the Durham Board conducted its canvass; and 4. A re-voting opportunity by mail, limited to the 892 provisional voters affected by known irregularities or misconduct, is appropriate in this case. 5. A new election is not appropriate when the effect of irregularities or misconduct is known and would not change the outcome of any contest. N.C. GEN. STAT. § 163-182.13 It is, therefore, ORDERED: 1. State Board of Elections Executive Director Kimberly Westbrook Strach shall supervise the Durham Board, which shall mail to all 892 provisional voters whose votes were unable to be counted due to improprieties or misconduct an absentee ballot, enclosing a letter of explanation and instruction; and 2. The Durham Board shall permit voting over a period of time specified by Director Strach; and 3. The Durham Board shall canvass results from returned ballots and include such results in an amended canvass of the March 2016 primary election under the supervision of the State Board and in accord with applicable law; 4. Protestors’ request for a new election is DENIED. This the sixth day of June, 2016. _______________________________ A. Grant Whitney, Jr., Chair State Board of Elections 1 1 NORTH CAROLINA BEFORE THE 2 COUNTY OF WAKE STATE BOARD OF ELECTIONS 3 4 IN THE MATTER OF: | CONSIDERATION OF ELECTION | 5 PROTESTS AND APPEALS FROM | THE MARCH 15, 2016, PRIMARY | 6 ________________________________| 7 8 North Carolina Board of Elections 9 441 N. Harrington Street 10 Raleigh, North Carolina 11 12 TUESDAY, MAY 31, 2016 13 1:00 p.m. 14 VOLUME I OF I 15 Pages 1 through 279 16 17 Board members present: 18 Mr. A. Grant Whitney, Jr., Chairman 19 Ms. Rhonda K. Amoroso, Secretary Dr. Maja Kricker 20 Mr. Joshua D. Malcolm Mr. James L. Baker 21 Also Present: 22 Ms. Kim Westbrook Strach, Executive Director 23 Mr. Joshua Lawson, General Counsel Mr. George McCue, Agency Counsel 24 25 2 1 T A B L E O F C O N T E N T S 2 Call to Order 6 by Chairman A. Grant Whitney, Jr. 3 Statement regarding Ethics and Conflicts 6 4 of Interest pursuant to G.S. 138A-15(e) 5 Motion that it's unnecessary for 8 Mr. Malcolm to recuse himself 6 Vote 9 7 Motion that Ms. Amoroso be appointed 9 8 Chair pro tem during consideration of any item for which Chairman Whitney 9 recuses himself 10 Vote 10 11 Consideration regarding the counting of 10 certain provisional ballots cast in 12 Durham County during the March 15, 2016, primary, G.S. 163-22(a), 163-22(d), 13 163-182.6(b), and 163-182.12 14 Motion that the 147 provisional 40 ballots be counted 15 Vote 40 16 Motion that the 32 absentee ballots 41 17 that have been identified be examined and determination be made of whether 18 they should be counted or not 19 Vote 42 20 Motion for approval of the minutes 43 21 Vote 43 22 Appointment of county board of elections 43 members to fill vacancies 23 G.S. 163-30 24 Motion to appoint Diana Lynn Johnston 43 25 Vote 44 3 1 Designation of special filing period for 44 election to fill a vacancy due to the 2 resignation of Court of Appeals Judge Martha Geer, G.S.