Election protests dismissed by NC State Election Board

After two-and-a-half hours of discussion, the fate of election protests challenging 60,000 ballots came down to a postcard and a QR code. 

The State Board of Elections met Wednesday for an election protest hearing involving several close elections. They dismissed each, mostly along party lines. Before discussing the merits of each of the three protest grounds, they discarded the protests in their entirety for failing to adequately notify the voters whose ballots were being challenged. Even so, they also went back and rejected each of the appeals on their merits as well. 

It was the latest development in an increasingly prolonged saga to determine the winner in the state supreme court race. 

On election night, it appeared Republican Court of Appeals Judge Jefferson Griffin had won the race against Democratic North Carolina Supreme Court Judge Allison Riggs by about 10,000 votes. 

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However, during the legally required 10-day period between Election Day and the county canvass, where provisional ballots and later-arriving absentee ballots are researched and counted, Riggs slowly gained ground. 

By the end of canvass, Rigg was up by 734 votes. An initial machine recount did not change vote totals. A second, partial hand-to-eye recount, gave Riggs more votes. The State Board announced it would not conduct a full hand-to-eye recount, since the partial recount results could not be extrapolated to flip the race in Griffin’s favor. 

If the recounts were an appetizer, election protests filed by Griffin challenging the ballots of 60,000 North Carolina voters was the main course. 

The State Board met Wednesday to consider Griffin’s protests, as well as the similar protests of several other runner-up Republican candidates: Ashlee Adams, Stacie McGinn and Frank Sossamon. The three are fighting for seats in close races to represent state senate district 18, state senate district 42 and state house district 32, respectively. 

After their dismissal of each protest, Griffin and the other adversely impacted candidates may appeal. Griffin may appeal to the Wake County Superior Court, while the other candidates may appeal to the General Assembly. 

If no one appeals, the election will be certified within 10 days of the State Board’s decision. 

The election protest notice issue

The 60,000 voters whose ballots were challenged in election protests got a postcard in the mail. 

It said, “Your vote may be affected by one or more protests filed in relation to the 2024 General Election.” 

A QR code included on the postcard took recipients to the North Carolina Republican Party website, where some of the election protest lists were published. 

At least one voter tore it up and threw it away. 

Under North Carolina administrative code, election protesters must serve copies of election protests with all affected parties, which includes voters whose eligibility is being questioned, within one business day after filing protests with county boards of elections. 

In Riggs’ reply to Griffin’s election protest filing, she argued that the State Board should reject his protests because he violated the rules of election protests. 

“Judge Griffin failed to provide the challenged voters with adequate notice, and his attempt to bring a mass challenge against tens of thousands of voters makes individualized inquiry impossible,” she wrote. “These protests create an intolerable risk of disenfranchisement.”

Riggs said that postcards sent to the 60,000 challenged voters were not sufficient to meet this requirement. 

“(The postcards) are just as likely to be tossed in the trash—or rejected as potential mail fraud—as taken seriously,” she said. 

The three Democrats on the State Board — Siobhan Millen, Jeff Carmon and Alan Hirsch — agreed that the postcard with the QR code was not sufficient notice. The board’s Republicans, Stacy “Four” Eggers and Kevin Lewis, disagreed. 

Hirsch, who serves as the Board’s chairman, hypothesized that not even one in 100 voters would be able to actually figure out whether they were implicated with the “complicated and obtuse” notice. 

He took issue with the “may,” which suggested uncertainty over whether a voter’s ballot was being challenged where there was none. Hirsch also did not like the use of a QR code, which he said not everyone understands or trusts. He added that the postcard’s appearance did not suggest that it was a legal notice, and that if a voter scanned the QR code, it was extremely unclear how to determine whether a voter was being challenged and why. 

Carmon and Millen said that something as important as someone’s right to vote called for a more serious notice. Lewis and Eggers found that the protesters complied with the regulation. It was “too speculative” to assume how recipients might react to the postcard, Lewis argued. 

Griffin counsel Craig Schauer said he believed they substantially met the notice requirements considering the number of voters impacted and the 24-hour time period to serve them. 

“That was a tremendous undertaking and an enormous expense, even through the postcard, so that there were practicalities that we were missing,” he said. 

After the 3-2 vote, the board could have ended the hearing. The decision that the protests were not properly served, and did not comply with statute, effectively dismissed all of the protests.

But its decision might be appealed, so for the sake of “efficiency,” Hirsch called the board to continue to make decisions on the specific protest grounds. 

The election protests

The election protests span six separate issues. Three were delegated to county boards of elections to address first — factual protests that challenged the ballots of alleged deceased voters, felon voters and voters whose voter registration was denied after a failed mail verification test. 

The remaining three fell under the State Board’s jurisdiction. 

The first protest challenges so-called “Never Residents,” children of parents or legal guardians who were last eligible to vote in North Carolina. These individuals have never lived in North Carolina, but under the state’s Uniform Military and Overseas Voters Act are permitted to register to vote and cast ballots in North Carolina elections. The protestors argue that UMOVA violates the state Constitution’s residency requirements for voting in state and local elections. 

“To the extent they want to vote for the school board in Mecklenburg County or the county commissioners in Randolph County, I don’t think they’re part of the political group that’s subject to those boards and that they shouldn’t have the right to vote for them,’” Griffin counsel Craig Schauer argued Wednesday. 

Board members questioned whether they were the correct body to resolve any conflict between state law and the state Constitution. 

Millen also disagreed with challenging these voters for casting ballots under rules that have existed since UMOVA passed in 2011. There was no way for them to anticipate that their understanding of election law would be outdated months later, she said. 

Eggers suggested that the board should look into whether the former U.S. domiciles of the parents and legal guardians of the children implicated in this election protest has ever been verified. 

The board voted 3-2, along party lines, to dismiss the protest because it does not allege a violation of election law, irregularity or misconduct. 

The second protest challenges overseas and military voters who did not include a photocopy of their ID or an exception form when casting their absentee ballots. This was the first year photo ID was implemented in a statewide election in North Carolina. The state election administrative code exempts overseas and military voters from the photocopy requirement, but protesters argue this violates state law. 

The State Board unanimously dismissed this protest. MIllen said an election protest was the wrong forum to overturn the current administrative code, and the others agreed that for this election, they were bound to follow the rule regardless of its merits. 

The third and most comprehensive protest challenges thousands of voters who do not have a driver’s license or Social Security number on file in their official voter registration record. 

The Help America Vote Act requires individuals registering to vote to provide one of the two forms of identification, if they have one. If they don’t, they may check a box to get a unique voter ID. Voters who do this must bring additional documents from an approved list of HAVA documents showing their current name and address the first time they vote in order to cast a ballot. 

However, sometime after HAVA’s passage in 2004, the State Board provided an unclear voter registration application form that did not make it clear that those numbers were required, not optional. The form was fixed after a citizen uncovered the issue, but the State Board did not honor the citizen’s request to contact the 225,000 voters identified as having registered since 2004 without either a driver’s license or Social Security number on their record. 

Protesters allege that some voters in that pool may be ineligible to vote, since they had a driver’s license or Social Security number, did not record it, and therefore were registered to vote improperly. Many voters who appear on the protest lists for incomplete voter registrations insist they are eligible. 

In her reply briefing, Riggs argued that the extra step requiring voter registrants who did not provide a driver’s license or Social Security number to bring an extra accepted document the first time they vote eased any concerns of ineligible voters casting ballots. 

Will Robertson, counsel for the apparent legislative election winners, said that putting the onus on voters who followed the rules they were presented with at the time of registration to visit their county board of elections to correct their record was too burdensome. 

“They provided this information when they showed up and presented photo ID at the polls. They provided the HAVA ID that was required in their first federal election,” he said. “It seems like there is a deliberate attempt here to throw up hurdles where there shouldn’t be any.”

Presenting voter ID at the polling place serves a different purpose than including a driver’s license or Social Security number during the registration process, Schaer said. The former is only intended to match the person in front of a poll worker is who they say they are, while the latter involves running someone’s name through the proper database. 

Riggs counsel, Ray Bennett, said removing the challenged voters would violate the materiality provision of the Civil Rights Act of 1964, which prohibits removing someone’s right to vote “because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if such error or omission is not material in determining” their qualification to vote. 

Eggers called the issue a “self-inflicted wound” and suggested that the State Board find a way to gather impacted voters’ information regardless of the election protest results to fix a “weakness in our system.” 

This protest is also the subject of an ongoing lawsuit in federal district court filed against the State Board by the Republican National Committee and the North Carolina Republican Party. In late November, U.S. District Court Judge Richard Meyers denied the State Board’s attempted motion to dismiss the case. 

However, his order stated that the court case would “have no bearing on the most recent election,” but rather apply to future elections. 

Griffin counsel Phillip Strach said the context was different in the federal case and the election protest, but a majority of the state board disagreed. 

The incomplete voter registration protest was dismissed in a 3-2 party line vote for a lack of probable cause that an election law violation, irregularity or misconduct had occurred. 

Millen recusal question

But before the State Board could get to the vote, they handled another matter: whether Democratic Board Member Siobhan Millen would be recused from the vote. 

Griffin asked the State Board to recuse Millen from any votes involving his election protests. 

Millen’s husband, Pressly Millen, is a partner at the law firm that has represented Riggs throughout the campaign and election. Griffin said Pressly Millen was Riggs’ lead attorney, and therefore Siobhan Millen did not have the appearance of objectivity. 

He also argued that Millen stood to benefit financially from Riggs’ victory in the case, since Pressly Millen owned a partnership share at the law firm. 

The State Board has a 3-2 Democratic majority. Without Millen, any vote would have required bipartisan support. 

In a written statement, Millen said she did not believe she had a conflict of interest, but referred the matter to board chair Alan Hirsch. 

Pressly Millen took several steps to separate himself from any cases involving the State Board beginning June 2023, he wrote in an affidavit. 

He was only involved on Riggs’ lawyer team from July 29 to Oct 29, 2024, during which time he only dealt with political advertising issues. His billings from work on behalf of political candidates made up less than 0.5% of his total billings, he also stated. Millen has been banned from talking to other lawyers in his firm about the election recount and protests. 

Hirsch agreed with Millen, and allowed her to stay on the Board for Griffin’s protest hearings. 

What’s next with election protests? 

The saga isn’t over. 

Griffin, Sossamon, Adams and McGinn have 10 days to appeal the State Board’s decisions about Millen’s recusal and the voter notice. 

Additionally, many county boards of election have referred their election protests to the State Board, or had their decision appealed to the Board. Of 78 counties dealing with protests, 45 dismissed them all, 10 referred all to the State Board, 12 referred some and dismissed others and 11 have either not held their hearings or haven’t published their decisions. Thirteen of the dismissed cases have been appealed so far. 

Across all of the protests under county jurisdiction, 60 voters on protest lists were found ineligible after a hearing, while 314 were determined to be eligible. Another 315 voters on lists had already been challenged and removed from the count during the county canvass before protests were filed. 

The State Board may set a meeting date to hear these appeals and referrals at the end of next week. 

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