North Carolina May Increase Odds of Gridlock with Even-Numbered Elections Boards
Republican lawmakers are close to passing a bill that would restructure the state’s election administration bodies, setting the stage for partisan tie votes that could create uncertainty.
Daniel Walton | September 20, 2023
Editor’s note (Oct. 11): After Democratic Governor Roy Cooper vetoed the legislation in late September, Republicans in the legislature overrode his veto on Oct. 10, making SB 749 into state law.
Some ties are merely anticlimactic: Think a 0-0 soccer match or a chess stalemate. The ties that would become possible under new legislation pushed forward by Republican leaders in North Carolina’s General Assembly could prove much more consequential.
For over 120 years, the North Carolina State Board of Elections (NCSBE) has consisted of five members, all appointed by the governor, with no more than three from a given political party. County elections boards have the same partisan composition. Those bodies oversee just about every step of the democratic process, and their odd-numbered makeup means they must reach a decision in any vote they take.
State Republicans are close to upending that longstanding system. Senate Bill 749, which is nearing its final vote in the legislature, would instead give all of those boards an even number of members, expanding the state board to eight members while shrinking county boards to four.
Because Democrats currently control the governor’s mansion, they also hold a majority on these election boards heading into the 2024 elections. This bill would deprive them of that edge; instead, all boards would be equally split between Republicans and Democrats.
The bill would also shift power to appoint members of the state elections board from the governor to the majority and minority leaders of the House and Senate. The changes could lead to tie votes along party lines on both local and state election boards, and the bill is largely silent about how such deadlocks would be resolved.
With North Carolina again poised to be an important swing state in next year’s presidential race, the bill could complicate local election boards that oversee a wide swath of administrative decisions.
From the appointment of precinct judges to the final certification of election results, there is no clear mechanism for what would happen after tie votes, which could in turn delay electoral processes, compromise ballot access for early voting, and potentially move decisions to the courts. SB 749 does say that, if an evenly divided state board cannot decide on an executive director, or if a county board cannot choose its chair, the General Assembly, currently in Republican hands, would step in.
Republican lawmakers have criticized current NCSBE executive director Karen Brinson Bell for changes she approved to voting rules during the 2020 election. The new rules under SB 749 would allow them to seek her ouster if the state board deadlocks over her reappointment in 2025.
The bill passed the Republican-controlled Senate along party lines in June, and passed in a slightly modified form along party lines in the House on Sept. 19. It now awaits a final Senate vote.
Democratic Governor Roy Cooper has promised to veto the bill if it comes to his desk. In an Aug. 24 press release, he wrote, “The bill would change the structure of the state and county Boards of Elections in a backdoor maneuver to limit early voting and satisfy the Republican legislature’s quest for more power to decide contested elections.”
But Republicans hold a supermajority in both the House and Senate, meaning they have the votes to override Cooper’s veto. Both chambers adopted the bill by margins that fell short of a supermajority because many GOP lawmakers were absent the days of the vote. But not a single Republican crossed-over to oppose the bill, so the party remains on track to overturn a governor’s veto if and when the bill returns to the legislature.
None of SB 749’s three Republican primary co-sponsors in the state Senate—Deputy President Pro Tempore Ralph Hise, Majority Leader Paul Newton, and Sen. Warren Daniel—responded to multiple requests for comment on the bill.
During a Sept. 12 committee hearing on the bill in the House, Republican Representative Destin Hall argued that requiring bipartisan decisions from election boards would make North Carolina voters more confident that their state’s elections were being administered fairly. His Democratic colleagues, noting how the Republican-dominated legislature has often ignored minority input, were skeptical.
“This is encouraging government not to work,” said House Democratic Leader Robert Reives.
Hall also said the possibility of intractable ties was a feature of the bill, not a bug.
“There’d be a stalemate, and by many ways, that’s by design,” Hall said of split election board votes. “No action would occur.”
North Carolina Republicans aren’t the only ones seeking to remake their state’s election administration bodies in a way that introduces the possibility of partisan gridlock. In 2016, Republicans in Wisconsin changed the state’s election governance from an odd-numbered nonpartisan board to an even-numbered board split between Democrats and Republicans.
In the years since, the board has deadlocked on a number of issues, including most recently the reappointment of Megan Wolfe, a nonpartisan elections administrator who became a target for false conspiracies in the wake of the 2020 election. (The situation is now headed to the courts for resolution.)
But there’s no historical precedent for split decision-making boards in North Carolina, notes Chris Cooper, a professor of political science at Western Carolina University. From the state supreme court to county commissions, he points out, the state’s institutions are set up with odd numbers of members to avoid ties.
“There’s a reason we do this by design every time. I really can’t think of any example where there’s been a true deadlock in this way,” Cooper says.
If Republicans and Democrats on election boards refuse to compromise, it could theoretically impact decisions on everything from disputes over voter eligibility to the certification of election results. Patrick Ganon, a spokesperson for the state elections board, declined to comment on the pending legislation. But many of North Carolina’s voting rights groups have drawn attention to early voting as a part of the electoral process that could immediately suffer from indecision.
Early voting is North Carolina’s most popular method of casting a ballot, employed by over 53 percent of voters in the 2022 general election. Those voters tend to lean Democratic: In the state’s 2022 Senate race, in-person early voters favored Democratic candidate Cheri Beasley by five percentage points, even as she lost the election overall by more than three percentage points to Republican Ted Budd.
Under current state law, each county’s board of elections must unanimously approve a plan for the number and location of early voting sites. It’s not unusual for all members not to agree, and in those cases, the contested plan goes to the NCSBE for consideration. In 2022, the state board approved 14 of these non-unanimous plans.
If the state board were restructured according to SB 749, however, one party’s members could unilaterally refuse to adopt a county’s contested early voting plan. State law then mandates that the county would only have one early voting site, located at its board of elections office.
A single early voting site might work in some of North Carolina’s smaller counties. Tyrrell County in the state’s northeast, for example, had a population of just 3,245 as of the 2020 census.
But in larger areas, “such an outcome would be catastrophic,” says Bryan Warner, spokesperson for the nonpartisan democracy watchdog Common Cause NC. “It would gut early voting, overwhelm election administrators, and could require county residents to travel long distances and stand in long lines to cast their ballot early.”
Wake County, home to the capital of Raleigh, had well over 1.1 million residents in 2020, and it established 20 early voting sites for that year’s election. “In a major urban area, [having just one early voting site] would be an important issue,” says Gerry Cohen, a Democrat who serves on the Wake County Board of Elections and is former special counsel to the General Assembly.
A recent study in the Election Law Journal authored by Chris Cooper, Michael Bitzer of Catawba College, and investigative reporter Tyler Dukes found that changing or eliminating early voting sites reduces voter turnout. The effect was greater for voters of color, who in North Carolina are more likely to be Democrats.
“Particularly in a competitive two-party state like North Carolina that has experienced a number of close elections in recent years, it is not an exaggeration to say that administrative changes to a polling location could impact electoral outcomes,” the study concludes.
The consequences are less clear for deadlock in other parts of the election system. While North Carolina law specifies deadlines for county and state boards to complete tasks like canvassing (confirming preliminary vote totals) and certification, it generally doesn’t outline next steps if those processes are delayed. Neither does SB 749. “It’s the Underpants Gnomes theory of election administration,” Cooper quips, referencing a crew of South Park characters with notoriously incomplete plans.
Voting rights groups’ biggest fear is that a failure by election boards to certify results would allow the General Assembly to intervene. Melissa Price Kromm, director of N.C. Voters for Clean Elections, warned the House on Sept. 12 that gridlock from SB 749 would let the legislature resolve ties, “even deciding the outcome of elections.”
Cohen, the Wake County elections official, believes such worries are overblown. He says state law clearly requires elections boards to certify results if there are no issues of fact. If one party’s members chose not to approve the results, he says, a judge would order them to follow the law under penalty of contempt of court.
Such an order occurred last year in Arizona after Republican officials refused to certify the midterm elections. And in North Carolina’s Surry County, two GOP members of the county elections board were removed by the NCSBE after voting not to certify a 2022 municipal election.
But given the current political climate, in which unfounded theories of voter fraud continue to circulate, it’s unclear what some elections board members might claim as issues of fact to justify a certification delay. It’s also unclear what sort of hearing North Carolina’s judges would give those claims.
The North Carolina state Supreme Court, which came under Republican control last year, has so far been willing to make controversial rulings that favor the GOP. Its members have voted to permit previously illegal partisan gerrymandering, rolled back voting rights for thousands of North Carolinians on probation or parole, and restored a Republican-passed 2018 voter ID law that had been struck down as racially discriminatory.
If passed, SB 749 would take effect in July of 2024, creating new state and county boards in the final months leading up to the presidential election. That would chop a year off the terms of county board members who were sworn in just two months ago, and three years off the terms of the state board members seated in May.
“We have to go through another appointment process again. It’s really disruptive,” says Cohen. “I don’t own my position on the board of elections, but in life, you expect some sort of certainty.”
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