Raleigh, NC – A U.S. District Court judge will not permit N.C. election officials to count absentee ballots that lack a witness signature required by law. But the judge has refused to block other election changes that generated opposition from Republicans.
That means the N.C. State Board of Elections can move forward with election rule changes included in a controversial state lawsuit settlement. The settlement would allow local election boards to count absentee ballots returned to anonymous, unstaffed drop boxes. It also would allow mailed-in ballots to be counted as late as Nov. 12, nine days after Election Day.
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In a pair of orders totaling 132 pages, Judge William Osteen delivered mixed news to the competing parties in an ongoing legal battle. That battle focuses on the rules for an election that started with the mailing of ballots Sept. 4. Early in-person voting starts Thursday, Oct. 15.
Osteen agreed with Republican challengers that the Democrat-dominated state elections board appeared to have exceeded its legal authority in making some of its election rule changes. The judge characterized some of the changes as defying either state law or a decision from the state Rules Review Commission.
In a 91-page order focusing on two lawsuits that challenged the state settlement, Osteen explained why the state board’s actions amounted to “arbitrary” changes that could not survive a legal challenge.
“A state cannot uphold its obligation to ensure equal treatment of all voters at every stage of the election if another body, including SBE, is permitted to contravene the duly enacted laws of the General Assembly and to permit ballots to be counted that do not satisfy the fixed rules or procedures the state legislature has deemed necessary to prevent illegal voting,” Osteen wrote. “Any guidance SBE adopts must be consistent with the guarantees of equal treatment contemplated by the General Assembly and Equal Protection.”
“Thus, following this precedent, and the ordinary definition of the word ‘arbitrary,’ this court finds that SBE engages in arbitrary behavior when it acts in ways that contravene the fixed rules or procedures the state legislature has established for voting and that fundamentally alter the definition of a validly voted ballot, creating preferred class[es] of voters.’”
But Osteen invoked the so-called “Purcell principle” in refusing to take action against the state board. Purcell suggests that courts should avoid changing election rules close to an election date.