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- Entering fall 2020, North Carolina legislators established specific state laws for mail-in absentee ballots.
- By agreeing to a legal settlement, the North Carolina State Board of Elections changed a couple of those rules.
- Even though the changes were only for the 2020 election, they effectively replaced laws set in general statutes.
In the 2020 general election, North Carolina voters were given more time to return absentee ballots than previously allowed under state law.
The changes were controversial among some legislators, who inquired about them in a legislative committee meeting on Feb. 25. Karen Brinson Bell, the state election board’s director, attended the meeting to speak about future elections.
"How many of these lawsuits that you’re settling change state law?" a legislator asked in a video of the exchange.
Bell responded: "I think we may have a disagreement as to whether state law was actually changed by the settlement or not.
"If I take the perspective, and the board takes the perspective that they did not change state law, which is where we are, then we just abided by the settlement rules," she concluded.
Did North Carolina’s election laws change for the 2020 election? And if so, was it the state elections board that changed them?
To be clear, PolitiFact is not weighing in on whether the changes were good or bad, or whether they were constitutional or not — a source of legislative debate.
We’re here to review whether there were effective changes in the law.
Someone who heard Bell’s comments may think the elections board followed absentee ballot rules set by state lawmakers. That’s not the case. In a legal settlement, the state elections board enacted changes to absentee ballot rules that had been set in general statutes.
Democracy North Carolina and the North Carolina Alliance for Retired Americans, left-leaning voting rights advocacy groups, sued the state elections board seeking voting rule changes that would help reduce the risk of contracting COVID-19. While the lawsuits raised several issues, the most controversial to come out of the settlement were:
How long after Election Day would the board accept mail-in absentee ballots?
Would absentee voters need someone to sign their ballot as a witness?
Entering 2020, state law required mail-in absentee ballots to be signed by two witnesses and arrive no later than three days after Election Day to be counted. The GOP-led legislature later passed (and Democratic Gov. Roy Cooper signed) a law allowing mail-in ballots to be signed by a single witness during the 2020 election.
After the lawsuit was settled, however, voters would have different rules for the 2020 election.
Absentee ballots would be accepted up to nine days after Election Day, rather than three.
Absentee ballots would still require a witness signature. However, voters who mailed an absentee ballot without the signature could rectify the situation by mailing an affidavit, signed only by themselves, to support the ballot’s veracity.
Out of the 5.5 million ballots counted in last year’s election, the board says roughly 2,000 civilian absentee ballots arrived in those extra days between Nov. 7 and Nov. 12. (State law already allowed military and overseas ballots to be accepted if received nine days after the election.)
The elections board, in a statement through spokesman Pat Gannon, argued that the distinction between laws and rules is key. While absentee ballot rules are outlined in state law, the board says state law also grants Bell and the board emergency powers.
The board compared the change in rules to an extension in voting hours at a polling site, a common occurrence when disruptions delay voting operations.
"That’s not a change to the law. It’s following the law to temporarily change a process to ensure that people can vote, despite the obstacles," the board said through Gannon.
J. Michael Bitzer, chair of the politics department at Catawba College, said he found the comparison to be "a bit of a stretch." State law specifically says the board is allowed to extend voting hours if polling operations are interrupted.
When considering changes for the 2020 election, the Republican legislative majority made it clear the witness requirement was important. Legislators also specifically rejected a proposal to further lengthen the absentee ballot arrival deadline during negotiations on the bill.
So, while the legal settlement didn’t amend North Carolina’s laws for the long term, the voting rules effectively deviated from specific laws.
"Whether the BOE was authorized to make the changes, whether the changes were made for good reason, and whether the changes were temporary or permanent does not negate the fact that changes were made," Greg Wallace, a constitutional law professor at Campbell University’s Norman Adrian Wiggins School of Law, told PolitiFact. "An authorized, reasonable, and temporary change is still a change."
Now we’ll address the other question at-hand: What role did the state elections board play in those rules changing?
After months of litigation, the elections board announced on Sept. 22 that it had agreed to a settlement with the plaintiffs to move forward with the aforementioned absentee rule changes and asked the courts to approve the agreement in a joint motion. While awaiting the court’s blessing, the state board sent county boards new guidance that reflected the settlement details.
Though Republican legislative leaders are mentioned alongside the elections board as defendants in the lawsuit, they said they weren’t involved in the settlement negotiations and didn’t agree with them. The board had two Republican members who voted for the agreement, then they later resigned saying they didn’t understand the terms of the deal.
Republicans are quick to point out the deal was struck between a majority-Democratic elections board, plaintiffs represented by prominent Democratic elections lawyer Marc Elias, and Democratic Attorney General Josh Stein, whose office defended the settlement terms in court.
It’s fair to say the board is one of four major players, along with the plaintiffs, attorney general and the courts.
The legal battle went all the way to the U.S. Supreme Court, which declined to intervene in the case after a 5-3 vote. Republicans have pointed out that a couple of federal judges admonished the state board for its settlement.
In an Oct. 14 order, U.S. District Judge William Osteen said he believed the board’s changes could result in unequal treatment of voters. However, he said legal precedent restricts court intervention in cases with fast-approaching elections. North Carolina began issuing absentee ballots to voters on Sept. 4.
Gannon, the board spokesman, pointed out that North Carolina’s appellate courts declined to overrule the conclusions from the state court judge presiding over the case at issue. The state court judge, Gannon added, ruled that the settlement was in compliance with state law.
Still, without the board’s vote, the rules wouldn’t have changed at all.
"The SBE bears sole responsibility for the settlement on the defendant side because it was the only entity that could give the plaintiffs the relief they sought," said Wallace, the law professor.
Bell said the North Carolina elections board "did not change state law" as it pertained to the 2020 election.
The board says it was within its legal powers to strike a deal implementing absentee ballot rules that deviated from specific laws set in general statutes. Regardless of who has the power, the election rules were effectively changed, and the board played a major role.
Bell’s statement contains an element of truth but ignores critical facts that would give a different impression. We rate it Mostly False.
Video uploaded by the NC GOP of Karen Brinson Bell, director of the North Carolina elections board.
Email exchanges with Patrick Gannon, spokesman for the North Carolina elections board.
Email exchanges with Gregory Wallace, professor at the Campbell University School of Law.
Press release from North Carolina Senate Leader Phil Berger on Feb. 25, 2021.
Press release from North Carolina Gov. Roy Cooper on June 12, 2020.
Press release from the North Carolina State Board of Elections on Sept. 22, 2020.
Webpage, "FAQ: Voting by Mail in North Carolina in 2020" on the North Carolina State Board of Elections website.
Memo from the North Carolina State Board of Elections to county boards of elections penned on Aug. 21 2020 and revised on Sept. 22, 2020.
Joint motion for entry of a consent judgement, submitted by the North Carolina Alliance for Retired Americans and the North Carolina State Board of Elections on Sept. 22, 2020.
Memorandum opinion and order issued by U.S. District Court judge William Osteen on Oct. 14, 2020.
Order by U.S. District Court judge James Dever on Oct. 3, 2020.
Column by Andy Jackson of the John Locke Foundation, "State Elections Board leader falsely claims she didn’t alter election laws in settlement," posted Feb. 25, 2021.
North Carolina general statute 163-231: Voting absentee ballots and transmitting them to the county board of elections.
North Carolina House Bill 1169, also known as the Bipartisan Elections Act of 2020.
Story by Reuters, "North Carolina to expand absentee voting access in 2020 elections," posted June 11, 2020.
Stories by WRAL, "NC considering later deadline for absentee ballots," posted Sept. 22, 2020; "Federal judge strikes down change to NC absentee ballot witness requirement," posted Sept. 30, 2020.
Stories by the Associated Press, "GOP elections board members in NC resign over absentee deal," posted Sept. 24, 2020; "NC elections board, Republicans spar over absentee changes," posted Sept. 25, 2020; "Judge: North Carolina must strengthen absentee witness rule," posted Oct. 14, 2020; "Supreme Court leaves NC absentee ballot deadline at Nov. 12," posted Oct. 28, 2020.
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