What Happened to Early Voting in NC, and Why

The three Republicans on the North Carolina State Board of Elections (SBOE) had a job to do on Thursday -- all day and well into the night -- and they by Gawd did it.

Their mandated job is "to ensure that elections are conducted lawfully and fairly," and on Thursday, they had one-third of NC's 100 counties before them, with "minority members" (Democrats all) claiming that in all those 33 counties, the Republican majority wasn't being fair and might very likely be acting unlawfully, according to various court decisions.

However, the mandated SBOE job description -- fair and lawful elections -- was the 98-lb. weakling next to the real heavy-weight: saving Governor Pat McCrory's ass in the upcoming election (while also incidentally avoiding further embarrassing litigation -- a challenging path to tread).

I was not charmed by the SBOE on Thursday. I invested 20 waking hours in that odd enterprise, and I feel I have a chip on my shoulder for a good reason.

The hearing room at the SBOE holds 100. I asked about it. They told me: 100. With 33 counties to be heard, you might think that someone would do some basic math. Let's see … 33 counties. Each county has 3 board members. All 3 probably won't come, but still … 2 at least. With maybe the Director of Elections from each county -- and there were many there -- and perhaps a lawyer or two and the many TV and print journos who were guaranteed to be there (they were, including a blogger or two, and many lawyers).

I tapped the SBOE on the shoulder, so to speak, and I said, "Uh. The room is already pretty much at capacity, and you haven't let in any of the general public. Where would anyone not a county official or a lawyer sit?" Because we weren't officials, they made us line up outside in the parking lot in the hot sun, and then in groups of five we got to go in and stand two-deep along the walls.

In other words, the meetingplace itself was a hostile act. There's ample precedent for the SBOE to move big meetings to larger venues. I recall one in particular we attended in 2014 in a fancy motel's ballroom -- one of several times the SBOE heard a case from Watauga -- and it was a hell of a lot easier to get to that fancy motel than to the Raleigh SBOE offices, on N. Harrington Street, somewhere near Peace Street, if you turn on West Street … located in a kind of urban desert of empty buildings, weed-grown sidewalks, forlorn warehouses.

And have I mentioned no Wifi?

Associated Press reporter Gary Robertson summed up the SBOE's performance on Thursday as "a measured approach." I totally get that choice of words -- "measured approach." MarkBinker detailed the numbers: there were 20-something bipartisan votes and "only" seven party-line votes. But how that "measured" up depended on what county you were from, what race you were, whether you were from a poor county or a flush county. (When did the right to vote depend so much on whether your county could afford to let you vote?)

George Frink (@gwfrink3) tweeted that the SBOE was "pussyfooting" on Thursday. Stealthy, moving silently, but always exploring with those paws what might be grabbed and played with. IMO they axed ballot access where they thought they could get away with it and granted it to avoid a lawsuit.

Gerry Cohen, who has been described as NC's "invaluable elections law supercomputer" (by Mark Ezzell), commented to me at the lunch break that the Republicans were "lawsuit averse." Yes, but out of the blur of the many party-line 3-2 votes that decided various county fates, I expect a lawsuit -- or two or three or even four.

Dallas Woodhouse, in the Flesh

The Republican three-person majority did their decision-making in full view of Dallas Woodhouse, executive director of the state GOP who sent the notorious memo about eliminating Sunday voting (among other topics). Woodhouse arrived late to the 10 a.m. start time of the hearing and sailed himself into a prominent seat in the front row that had a "RESERVED" sign pasted to it. How did he rate that?

The Players

Joshua Malcolm, Democratic member.

Malcolm was the star of the marathon, the most active member of the board in questioning the county officials, the most aggressive member in challenging the abundant nonsense we all heard, and the most constructive in trying his dead-level best to compromise with his Republican colleagues. (If Binker's numbers are right, there were 20-some bipartisan votes largely thanks to Malcolm.) The indefatigable Vicki Vars Boyer (@vickitkd) described him as "the workhorse on the board … conversant with details, numbers, percentages." He had actually read the many pages of proposed early voting plans, from Republican and Democrat alike, and he was conversant with the supporting data. No surprise, he asked penetrating questions, always remained a model of politeness and even temper … though he could be sharp and very direct, and he two or three times delivered withering commentary. He's a master of using the honorific "sir" to great effect.

With Dallas Woodhouse sitting in the front row, Malcolm took the opportunity to note for the record that he had received no phone call, no email, no text, or any other piece of "partisan pressure" from anyone in the Democratic Party. Republican James Baker immediately piped up and said that neither had he, and he tried to joke that he felt a little bit left out. Republicans A. Grant Whitney and Rhonda Amoroso were noticeably silent. Did they enjoy seeing Woodhouse, currently the most notorious Republican operative in the state -- about which the SBOE has suffered sufficient grief -- sitting there in all his hair-gelled and loud-sock glory?

One of Malcolm's sharper moments occurred during the Mecklenburg County case. The Republican member from Mecklenburg who attended, Elizabeth M. McDowell, laid down a base-line series of accusations against early voting in Mecklenburg that seemed frankly unhinged. She asked the SBOE members to "prevent voters from being used by both parties." Seriously. She talked about people with dementia being dragged into the booth to vote by suspicious persons unknown and about the victimization of the elderly, and…

"Are you serious?" Malcolm interrupted.

McDowell, suddenly on the defensive: "I have reports of these things happening."

Malcolm: "Did you witness these things?"

McDowell: "Well, no, but I have reports."

From then on, McDowell's credibility was toast. Who on the SBOE would volunteer to be associated with that?

Another memorable Malcolm moment: The Craven County majority Republican plan was presented and advocated by the (supposedly impartial and non-partisan) elections director, and Malcolm had cautionary words: It's maybe not a great idea for a supposedly impartial and non-partisan elections director to be so actively pushing the election druthers of one party over the other. Plus the Craven director had done none of the statistical and data-driven analysis of voter histories and habits that Malcolm reminded her were statutorily required.

Maja Kricker, Democratic member.

Kricker, 2nd from left

The other members of the SBOE sometimes can't conceal their impatience with Dr. Kricker -- she's slow to speak, and when she begins to speak, you're not sure she's ever going to reach the end of the sentence, and she's perhaps technologically challenged -- but I find her endearing, and for all her quirky mannerisms, she can penetrate to the marrow of an issue (if sometimes by a circuitous route).

She announced her battlefield position at the beginning of Thursday's long hearing: I am determined to vote for more ballot access, not less, she said. Which meant that she was often on the losing end of 3-2 party-line votes, where the Republicans took what opportunities were afforded them to limit early voting.

Kricker was consistently a champion for extended evening hours for the benefit of working folks and would not usually budge on Sunday voting, especially if a particular county had already enjoyed Sunday voting in the past.

James L. Baker, Republican member.

Baker appeared to be reading the materials for the first time on the fly on his iPad and therefore appeared also to be a half- to a full-step behind some of the time.

Baker presents as a kindly old man with everyone's best interest at heart, but his angling to get in line with the other Republicans was obvious. I couldn't always follow his logic. Sometimes, while listening to him go down yet another rabbithole, I flashed on the old stand-up comic, Dr. Irwin Corey, "the world's foremost authority" who would wander around the stage pontificating on whatever came into his head.

Maybe that's too harsh, and I'm reacting to the others' addressing him as "Judge." He was sober but too often dogmatic. He hatched a kind of judicial test -- that if a county had never before had Sunday voting, then it probably couldn't ever have it because it never had it before, see? Baker's Razor, Catch-22 of the day. Even when a county like Craven, that had enjoyed Sunday voting in 2012, at a rate of 95 votes per hour, and then had it taken away in 2014, Baker thought that was justified by the money saved.

The Craven County case featured a Robert Rules of Order trainwreck. Malcolm moved to amend the Republican majority plan for Craven to remove one Saturday of early voting and substitute two Sundays, with voting from 1-4 p.m. Before that motion could be voted on, Judge Baker announced that if Malcolm's motion failed, he would put forth his own motion thus and so, concluding with just one Sunday of voting. With effectively two motions on the floor, and with the opportunity to put the axe in at least some Sunday voting, the Republicans voted down Malcolm and approved Baker.

Malcolm warned that this vote was an obvious "disservice" to Craven County, and Craven moves to Number One on my list of potential lawsuits.

Rhonda K. Amoroso, Republican member.

Transparently and predictably partisan in every vote she takes. She's the cruel step-mother of the SBOE. During the Craven County two-motions-on-the-floor-at-once fiasco, she lectured the Democratic petitioner and her lawyer: "If you can't find a time to early vote, you can vote by mail," Then she practically yelled, "There was only one day to vote when I was a kid!"

You ungrateful swine!

It seemed clear that attorney Stacy C. Eggers IV ("Four") -- or someone equally impressive -- may have gotten to Amoroso on Watauga County's behalf. (Paul Foley used to be Four's inside man, but Foley was forced to resign almost two years ago.) Amoroso announced that she had done surveillance in Boone (I believe those were her exact words) and had been amazed at how convenient and obvious was the location of Legends -- looked fine to her, driving by. She didn't go inside. But it looked good from outside. "I couldn't find the Student Union," Amoroso added, darkly.

She also said, over her shoulder to the SBOE lawyers, "Can't we command Legends?" and then we from Watauga knew what was supposed to have gone down. Amoroso was determined, coming in, to approve Aceto's "plan" (I always put the word in quotation marks, because it's a half-page memo, with a footnote to an old plan that he has always preferred.) To Amoroso, Aceto's half-page memo, missing facts and figures of any kind, was cue enough to act.

She lectured Anderson about not going along with the majority. She hadn't read Anderson's submitted plan, and if she had read anything more that the staff-written synopsis, by that time of the day, data was dead to Amoroso. Her mission: secure Legends.

"Can't we command it?" Under state law, legally, a local BOE can simply take -- "command" -- a public, tax-supported building as a polling place, but there are clear limits to that power. Commanding Legends would violate at least one of those limits. The SBOE lawyer answered Amoroso, in short "no."

Legends is stillpending until next Tuesday at 5 p.m.

A. Grant Whitney, Republican Chair.

Whitney said as little as possible. He asked few questions. He ran the meeting, set the agenda, said very little, but grumpily complained about some people droning on and on (not, however, the Republican member from Hoke County, who rambled endlessly down weird paths that never seemed to get to a destination). Having been a gruff, but mainly non-verbal railroad conductor with no discernible opinions, Whitney would vote partyline every chance he got.

One of those votes in particular -- the Wake County vote -- was 3-2, but with a different alignment: Malcolm, Kricker, and Judge Baker voted "aye." Amoroso and Whitney voted no. Judge Baker went with the Democrats and saved Wake County. (Some of us who witnessed it still half-way believe that Judge Baker expected the other two Republicans to vote with him. He didn't make that mistake again.)

Think about it: Amoroso and Whitney had voted to limit the first week of early voting in Wake County to one single, downtown site (Wake is the most populous county in number of registered voters in the entire state), which would mean that some 70,000 projected early voters in Wake during the first week of voting would be forced to go to downtown Raleigh -- where free parking is limited to the spiritual realm and parking for hire can rarely be got, not even for ready money.

In other words, chairman Whitney (not to forget Amoroso) pulled down his pants, figuratively speaking, and mooned Wake County. Wow.

Whitney did it after participating not -- or participating very little -- in the discussion. His vote seemed unwarranted -- a cold-cocking, a blind-siding, a kind of ambush. I can understand why Whitney made a beeline for the exit at 10 p.m. and wouldn't do an interview with WRAL: "I have to go meet someone."

Other Highlights Lowlights

The Republican Chair of Randolph County, Bill McAnulty, stood there and told the SBOE that he had originally approved an early voting plan with Sunday voting, but when word got out and he became a villain to fellow Republicans, and a traitor to the party, he changed his vote to no Sunday voting. Do the words "arbitrary and capricious" spring to mind? Randolph County is Number Two on my possible lawsuit list.

Professor Irwin Corey

On Facebook, someone from Randolph County said it was McAnulty's wife who raised hell with him, and that's all it took. Apparently, Mrs. McAnulty is too religious to vote on Sunday and doesn't think anybody else should either.

The Democratic member from Cumberland County offered a comment that McAnulty might appreciate: "You have to be very partisan to get this job, and then you have to be non-partisan to make everyone happy."

At the close of the meeting, with Whitney making a quick exit, Malcolm was maintaining a rosy disposition, considering the circumstances: "I think today what you witnessed was, to a pretty good extent, a bipartisan board doing its best to interpret and make a good faith effort to comply with the law and especially the 4th Circuit Court of Appeals."