Statement from Sen. Berger on Latest Federal Judge Rebuke of the State Board of Elections

Raleigh, N.C. — Senate Leader Phil Berger (R-Rockingham) released the following statement on Judge William Osteen’s rebuke of the North Carolina State Board of Elections:

“When Roy Cooper took extraordinary measures to ensure his absolute control of the elections process, concerns were expressed about what that would mean when it came time for his partisan appointees to administer Cooper’s re-election contest. Now we know — they will cut corners, bend rules, and ignore judicial findings. Today Gov. Cooper’s hand-picked Board of Elections was again rebuked by a federal judge, this time for accepting as valid absentee ballots that clearly violate witness requirements in North Carolina law.

“The Board continues to flagrantly violate election rules that bipartisan supermajorities in the legislature passed many months ago. The Board must immediately correct course and fully implement the absentee ballot witness requirement to ensure confidence that our election process is being administered fairly and consistent with the law. Legitimate questions are being raised about what this may mean when they actually start counting ballots.”

Here are key excerpts from Judge Osteen’s order:

• “… [T]he denial of relief should not be misconstrued as this court’s approval of the actions of the North Carolina State Board of Elections. To the contrary, for the second time in this case, this court has serious concerns about the conduct of the North Carolina State Board of Elections. As will be explained, based on the evidence presented, this court finds that the State Board of Elections is permitting at least two county boards of elections to undermine and contravene the requirements of the law of the state of North Carolina, H.B. 1169, in accepting and processing absentee ballots without the minimal witness information required by that statute.”
• “… [N]ew information came to light as absentee ballots with illegible witness signatures were allegedly cured without any witness name or address.”
• “This court therefore finds as a fact that under the guidance and supervision of the SBE, county boards of elections are accepting and processing absentee ballots after providing notice and an opportunity to be heard, as well as a related cure procedure, for ballots that do not include the statutorily required name or address of the witness — and in some circumstances, for ballots containing no information which might enable direct identification of the witness. This court further finds the local boards of elections are not collecting missing witness information before accepting and processing these ballots.”
• “The witness requirement statute in H.B. 1169 very clearly details the requirements for acceptance of an absentee ballot. To accept and count an absentee ballot in a manner contrary to those requirements violates state law. A ‘cure’, even if part of Due Process, may not be used as a shield to avoid compliance with state law which requires the presence of a witness at the marking of a ballot.”
• “Although this court finds that the SBE’s guidance is in compliance with Due Process, the evidence before this court compels a finding that the cure procedure used does not comply with state law.”