This article first appeared at American Lens News on December 7, 2016.
Two election protests were filed last week with the New Hanover County Board of Elections in November by John Christian Anderson, both of which were swiftly dismissed.
In related news, the State Board of Elections had dispatched investigators to Bladen County and at an emergency meeting held by the State Board of Elections, Kim Strach was asked by board member Joshua Malcolm if the investigators had reason to believe there was serious concern over the Bladen county situation, to which she replied, “Yes, sir.”
Since that emergency meeting, the North Carolina State Board of Elections announced the ballots in question in Bladen County will stand, despite numerous ballots being altered by multiple persons engaged in a ‘Get Out The Vote’ operation funded by the Bladen County Improvement PAC. The State Board of Elections has referred the case to the U.S. District Attorney’s office for investigation.
Now, the State Board of Elections may have to turn its attention to New Hanover County.
Why? The integrity of elections matter. Complaints matter. Laws, statutes and election processes matter.
The second protest in New Hanover was filed last Monday, November 28th, containing two allegations about the voting process in the county. In the complaint, Anderson has requested to inspect the New Hanover county absentee ballots.
Anderson alleged it was possible that an absentee ballot mill was run in New Hanover County, similar to the election protest filed in Bladen County.
Anderson has stated that he noticed on multiple mornings someone entering the New Hanover County Senior Center between the hours of 1 a.m. and 3 a.m. in the area where early voting was taking place. Anderson has said that due to these incidents, there is a reason to believe some one-stop absentee votes were possibly tampered with.
What follows below is a timeline of the public records requests and election protest filings made by Mr. Anderson which documents various potential legal violations and questions citizen complaints to be taken seriously and investigated by election officials.
Thursday, November 17 – 12:36 p.m.
Anderson files public records request with Derek Bowens, Director of the New Hanover County Board of Elections.
Bowens fails to stamp the incoming document to show the date of receipt. Although cordial, his demeanor is less than welcoming during this exchange with Anderson. The tension is clear between the two. View the submitted request.
Thursday, November 17 – 9:22 p.m.
Anderson passes by the NHC Board of Elections office and notices lights on and activity in the building. He enters the office and inquires as to what they are doing. Bowens is called to the front by a staff member and when pressed, he clearly states they are “counting ballots.”
No notice of this activity had been previously posted and the door to the room where the ballots were being counted was locked. This occurred late on a Thursday night – well past normal business hours – without the public’s knowledge.
Bowens does speak to this encounter in an email exchange with Anderson, citing NC G.S. §143-318(b)(1). However, the last meeting minutes posted on the NHC BOE website are dated July 12, 2016, so it is unclear as to whether this ballot count so late in the evening was the result of a recessed meeting that had been reconvened in open session earlier that day.
Friday, November 18
The next morning, as reported by multiple media outlets including WECT, WWAY, and Port City Daily, the New Hanover county BOE officially delays county vote canvassing until Tuesday, November 22nd, due to an election challenge about allegations that two convicted felons may have illegally voted.
The BOE members were also awaiting a ruling by the State Board of Elections over how to handle ballots cast by voters who claimed to have registered to vote with the Department of Motor Vehicles but had not been entered into the state database.
Wednesday, November 23
Anderson returns to the Board of Elections office to ask about the status of his November 17 public records request. He is told that Bowens is traveling and that no one is able to help him.
Anderson returns later in the day with a written letter explaining the time-sensitive nature of his request, a restatement of the reasons for the request, and asks that if the request cannot be fulfilled that he be notified as soon as possible and under which statute he is being denied. He has the letter date stamped and leaves it with elections staff.
Saturday, November 26
Getty asks if his request can be delayed until the following week due to its “voluminous” size. This, of course, would mean they would fulfill Anderson’s public records request after the deadline to file an elections protest would have expired.
Wednesday, November 28
Anderson responds to Bowens’ email notification of his scheduled protest hearing. He reminds Bowens and the entire BOE that his hearing cannot be scheduled without giving the public 48-hour notice of the meeting. Bowens then reschedules the meeting for December 1.
At that time, the county Board of Elections website appeared to be lacking the proper public meeting notices. Since the November 8 election, four meeting notices have been posted to the website. Two of them have violated the 48-hour public meeting notice law.
To date, Anderson’s protests have not been posted to the BOE website for the public to view.
Tuesday, November 29 – 10:45 a.m.
Derek Bowens responds to the second protest in a media interview. He takes issue with the constitutional year-long residency requirement, referring to it as an “old rule that was overturned more than four decades ago,” citing a Supreme Court ruling in a Tennessee case of voter suppression, which may not apply in this case.
Regardless, North Carolina elections officials take an oath of office to support, maintain and defend the State Constitution. The year-long state residency provision is required by the NC Constitution. Dismissing it as an “old rule” appears to be a blatant violation of that oath.
Bowens also expressed confidence in the fact that the board will dismiss Anderson’s protest in short order. This effectively put Anderson on notice that he cannot get a fair hearing, as the board members may have already come to a decision regarding his protest before he is even allowed to present his case.
Tuesday, November 29 – 7:06 p.m.
Bowens finally responds via email to November 17 public records request.
Request #1 to access and inspect absentee ballots cast is denied.
Bowens asserts that Anderson’s request is not in accordance with G.S. §163-165.1(e), although the statute he cites verbatim confirms that his public records request is, in fact, in accordance with state law (emphasis is on the relevant portion of the statute):
(e) Voted ballots and paper and electronic records of individual voted ballots shall be treated as confidential, and no person other than elections officials performing their duties may have access to voted ballots or paper or electronic records of individual voted ballots except by court order or order of the appropriate board of elections as a part of the resolution of an election protest or investigation of an alleged election irregularity or violation.
Request #2 to inspect the absentee container envelopes is approved.
However, without the ability to analyze and compare the corresponding absentee ballots to the envelopes for handwriting similarities, as they did in Bladen County, the envelopes alone are useless.
Request #3 to inspect and access the memory cards from electronic voting machines was denied.
Again, proof that he may have witnessed fraudulent activity multiple times at an early voting site in New Hanover County can only be verified by examining the time stamps on the electronic voting machine memory cards and he has been denied access.
Request #4 to access tapes which recorded votes cast was approved.
This approval came with the stipulation that the tapes he is allowed to review are the final printed results tapes from each early voting site. This is not relevant to Anderson’s protest and is therefore useless as evidence to buttress his complaint.
Thursday, December 1 – 9:00 a.m.
The New Hanover County Board of Elections hears both of Anderson’s protest. They are both summarily dismissed by the board as being “frivolous” and “without merit.” Board member Getty goes as far as to say Anderson needed to be stopped.
According to The Port City Daily, Getty said, “If we don’t send a message here it won’t stop. [Anderson] has done this before, in 2014. He’ll do it again. And it will signal that this is an effective way to derail our electoral process. It will happen every election.”
Under state law, Anderson has the right to file an appeal to the State Board of Elections, but he must do so within 24 hours after the county board files their written decision at its office. The New Hanover Board of Elections filed their written decision at 7:15 a.m. on Friday, December 2.
Thursday, December 1 – 11:30 a.m.
Immediately after dismissing Anderson’s protest involved residency requirements, the New Hanover County Board of Elections knowingly violates state law by voting 2-1 (with Democrat Tom Pollard dissenting) to certify the 2016 county election results.
State statute § 163-182.15 mandates that certificates of election cannot be issued until five days after a protest is dismissed or denied by the county board of elections unless that decision has been appealed to the State Board of Elections.
Board member, Jamie Getty, who also happens to be an attorney, vented her frustration with the delay in certifying the election results.
When questioned by a Star News reporter about her decision to falsely certify election results, Getty responded, “If we were to follow the law, then this will set a bad precedent going forward. Under the circumstances, we decided that it was more equitable, and in the best interest of our county as a whole, to not allow frivolous petitions to be filed in the future so as to disrupt our county government.”
Also via Star News, Washburn seems to imply the board shouldn’t take Anderson seriously because he filed two protests:
“I do feel like it was frivolous and solely for the purpose of delay. It angers me when I see the reasons behind doing it,” Republican board chairman Jonathan Washburn said.
In doing so, Getty and Washburn may have committed a Class I felony:
G.S. § 163-275. Certain acts declared felonies. Any person who shall, in connection with any primary, general or special election held in this State, do any of the acts or things declared in this section to be unlawful, shall be guilty of a Class I felony.
It shall be unlawful:
(1) For any person fraudulently to cause that person’s name to be placed upon the registration books of more than one election precinct or fraudulently to cause or procure that person’s name or that of any other person to be placed upon the registration books in any precinct when registration in that precinct does not qualify the person to vote legally therein, or to impersonate falsely another registered voter for the purpose of voting in the stead of the other voter.
(2) For any person to give or promise or request or accept at any time, before or after any such primary or election, any money, property or other thing of value whatsoever in return for the vote of any elector.
(3) For any person who is an election officer, a member of an election board or other officer charged with any duty with respect to any primary or election, knowingly to make any false or fraudulent entry on any election book or any false or fraudulent returns, or knowingly to make or cause to be made any false statement on any ballot, or to do any fraudulent act or knowingly and fraudulently omit to do any act or make any report legally required of that person.
(4) For any person knowingly to swear falsely with respect to any matter pertaining to any primary or election.
Despite two elections protests and a county commission race recount scheduled to begin next week, several candidates have already been sworn into office. Others, including three school board members, are scheduled to take the oath of office early next week.
Since the New Hanover County elections results have not yet been certified, none of these individuals should be sworn-in until everything has been certified which, at this point, looks to be sometime late next week, at the earliest.
Thursday, December 1 – 3:30 p.m.
The New Hanover County Board of Elections holds an emergency conference call with attorneys from the State Board of Elections and votes to “rescind” their decision to certify the county elections results. Chairman Jonathan Washburn votes against nullification.
Once again, knowingly violating state law by falsely certifying elections results is a class 1 felony, yet two New Hanover County Board of Elections members did it anyway.
The emergency meeting notice was posted on the website one hour after the meeting took place.
Getty once again expresses her frustration with what she perceives to be restrictive state law and attempts to justify her reasoning for violating the oath of office in another statement to the Star News:
“The board still believes that we did what was right under the circumstances, but there is nothing we can do until the statute is changed.”
Despite two unresolved elections protests and a recount scheduled to begin in the next week, several candidates have been allowed to be sworn into their respective offices. Others, including three school board members, are scheduled to take the oath of office early next week. [Update: It appears these ceremonies have been postponed.]
Since the New Hanover County elections results have not yet been appropriately certified, candidates arguably should not be sworn-in until such time as the certification can be completed.