State Board of Elections Refuses To Certify Congressional Race, NC-9

Yesterday the North Carolina State Board of Elections (SBOE) voted unanimously -- all 9 members -- not to certify election results in the 9th Congressional District, which Rev. Mark Harris won by just over 900 votes. Democrat Dan McCready conceded the race weeks ago.

Why did they all, including the scenery chewers on the Republican side, refuse certification? It's kind of a secret, y'all. They met in closed session after Democratic member Joshua Malcolm made this statement:

“I’m very familiar with unfortunate activities that have been happening down in my part of the state. And I am not going to turn a blind eye to what took place to the best of my understanding which has been ongoing for a number of years that has repeatedly been referred to the United States attorney and the district attorneys for them to take action and clean it up. And in my opinion those things have not taken place."

Hmmm. Unfortunate activities. To the best of my understanding.

Okay, so that suggests there's already an investigation underway and not for the first time: "activities ... ongoing for a number of years ... repeatedly referred to the Unites State attorney and the district attorneys...."

So what criminal activity related to elections has been ongoing in the NC-9?

Dallas Woodhouse, the cigar-chewing executive director of the NCGOP, told Jim Morrill of the Charlotte Observer that Malcolm was referring to "the situation" in Bladen County, only half of which is in the 9th Congressional District.

If it's Bladen County, it goes back to what happened there in 2016 and was presumably still happening in 2018.

Back in the 2016 general elections, Leslie McRae Dowless Jr., an incumbent Bladen County Soil and Water Commissioner -- a former Democrat currently registered Unaffiliated -- won reelection on November 8 but filed an election protest on November 15 -- a week later -- alleging voter fraud through “a massive scheme to run an absentee ballot mill involving hundreds of ballots” by the Bladen Improvement Association PAC, "a committee funded by the North Carolina Democratic Party and numerous local and statewide Democrats" (Bladen Journal). The Bladen Improvement Association had endorsed Dowless and helped him in 2012 -- "They had me on their sample ballot," Dowless testified -- but then turned against him. And allegedly ran a fraudulent "absentee ballot mill" to try to defeat him.

Boy howdy! The politics in Bladen County look so ... 19th Century! The background on what went on in the Bladen County Democratic Party would probably make a hair-raising good novel, especially as Dowless may have had a history himself of fraud (looks likely, if he's the same Leslie McRae Dowless Jr. of Bladen County sentenced to two years in jail in 1992). (Lisa Sorg, NC Policy Watch).

At any rate, though the SBOE voted 3-2 in 2016 to reject the Dowless petition, they also voted unanimously to refer the matter to the US Attorney for the Eastern District. So there must have been some evidence of mail-in absentee ballot fraud.

It's Mail-In Absentee Ballots, Stupid, Where the Fraud Occurs

Everybody who knows anything about elections, or anybody who can think logically, long ago concluded that in-person voter impersonation is not the potential arena for election fraud and that a photo ID, which is supposed to "cure" voter fraud, can't touch the potential fraud that mail-in absentee ballots invite. While fraudsters don't vote and go to their car and change their shirt and go back in to vote again as someone else, they obviously can do what the Republicans alleged some Democrats were doing in Bladen County in 2016 -- making absentee ballot requests surreptitiously and voting those ballots without the voters' knowledge or consent. We can assume that something similar was going on this fall.

Joshua Malcolm

And here's the thing: Though the SBOE voted to refer the matter to the US Attorney for the Eastern District, that US Attorney's office has declined to prosecute anyone (have the allegations even been referred for investigation?). The Obama-appointed US Attorney resigned the office in January of 2016, before the events in the scandal above. He was replaced by an Acting US Attorney who served until Trump appointed the current US Attorney, Robert J. Higdon Jr. in August of 2017. Higdon has been very active since his installation at pursuing Twitterman's allegations of massive illegal voting by undocumented immigrants. Looks like he might want to take a crack at absentee voting in Bladen County, especially as it may involve a splinter group of Democrats. What an opportunity to score political points!

SBOE member (and Democrat) Joshua Malcolm seemed to signal that the authors of fraud in Bladen were in fact fellow Democrats: He used the word "unfortunate." He might have used a different word if it were Republicans.

UPDATE
What Joshua Malcolm knows about "unfortunate activities" in Bladen County got more complicated: News came this afternoon that the SBOE has seized absentee ballot envelopes at the Bladen County Board of Elections:

State records indicate 684 ballots were cast absentee by mail in Bladen County in the race, most of them for [Republican Mark] Harris. [SBOE spokesman] Gannon declined to say whether anything else has been seized from any other counties in the district, but Robeson County Board of Elections Chairman Steve Stone said a state investigator reached out Wednesday for logs his county elections office kept of people who turned in large numbers of voter registration forms and absentee ballot requests.

So maybe not Democratic factions at all.

But it's pretty clear that it's the absentee ballots, stupid!

FURTHER UPDATE
Republican Congressional candidate Mark Harris apparently got 96% of the mail-in absentee ballots in Bladen County, a fairly astounding statistic.

The Action Today at the SBEEE: Republicans Cave

WEDNESDAY, March 21 -- Here was the Republican dilemma today in Raleigh as their newly designed State Board of Elections and Ethics Enforcement (SBEEE) met for the first time. Everyone was expecting total impasse, which is what we got a lot of, at least at first, but rumor had it that Governor Roy Cooper was itching to take any 4-4 board impasse and failure to follow the law to court to prove by definitive example how wrongheaded Republican schemes are. So, on the one hand, while Republicans automatically thwart and overpower the Democratic governor at every opportunity, they could not afford to shut the process down today. Though they wanted to.

Andy Penry

Maybe they weren't counting on the strength of Andy Penry. The governor had appointed Penry chair when he appointed all eight. Penry is a Democrat, and as mandated in the Republican law, his service extends only to this July, when a Republican must take the chair and hold it through the elections of 2018.

From the beginning Penry was no nonsense and by the book, quoting the new law to his Republican friends and making them follow it, and showing every indication that he, like the governor, was fully prepared to go to court to have this entire new board thrown out for not being able to act.

Follow along:

The first gambit of the Republicans -- delay nominating anyone. Delay. But Chair Penry, again reading the language of the law the Republicans had passed, pointed out they had only 14 days to nominate the ninth member and have him/her appointed by the governor.  14 days from today, according to statute. Penry said he wouldn't support a delay, and that gambit died.

The most vocal for delay: Republican member John Malachi Lewis, who also happens to be deputy counsel for the North Carolina Republican Party and who otherwise has no visible connection to the legal community nor the community of Mount Pleasant. He makes a motion to recess the meeting for a week and in the meantime take out newspaper advertising for a job opening on the SBEEE.

Lewis's motion fails 4-4.

Josh Malcolm nominates Damon Circosta and Gerry Cohen.

Lewis jumps in and says he was getting ready to nominate Gerry Cohen himself. What? In fact, Cohen likely knew it, since he had just this week changed his party affiliation from D to U. Did Malcolm know the Republicans had been talking to Cohen? And did Malcolm deliberately call their bluff? Democrat Malcolm moved to approve Circosta and Cohen. The Republicans voted no, and the motion failed. Penry is prepared to bang the gavel and adjourn the meeting: "Is there any further business to come before the Board?"

Lewis nominates former Republican Chief Justice of the Supreme Court Burley Mitchell. Mitchell, it comes out, has also recently changed his affiliation from D to U. Lewis has no second nominee, and Penry demands it. Lewis doesn't want to say who else, and Republicans want to vote on one nominee at a time. (No mention of Gerry Cohen at this point. That's odd.) Chair Penry objects to one nominee at a time. Lead counsel to the board, Josh Lawson, says he doesn't believe there is anything barring a process of voting on one nominee at a time. Lewis therefore nominates Burley Mitchell alone. Malcolm slams that door shut: "No motion is going to pass today with only one name" (Melissa Boughten). Penry agrees. "Is there any further business to come before the Board?" He's got that gavel in his hand, ready to bring it down.

Lewis then nominates Burley Mitchell and Gerry Cohen. A 10-minute break is called.

After the break, the Republicans come back with another gambit: Republican Ken Raymond of Winston-Salem wants to put three names in a hat and draw two: Circosta, Mitchell, and Cohen. Motion fails. Penry: "Any further business?"

Then another Republican gambit (are we up to four?): Lewis moves the nomination of Burley Mitchell and Gerry Cohen. Democrats vote no. Motion fails.

Democrat Malcolm then splits the baby: He nominates Circosta and Mitchell. Dems vote yes. Republicans vote no. Motion fails.

Penry for sure is going to adjourn the meeting as a textbook example of inability to take official action, when the Republicans cave. Did they during that ten-minute break give the honor of admitting defeat to member Stacy C. Eggers IV? "In the spirit of bipartisanship," Four calls for a revote on the team of Circosta and Mitchell. All the Republicans fall in line, and the board votes unanimously for Circosta and Mitchell.

Take one guess who Governor Cooper will choose:


Damon Circosta -- 

Executive Director and Vice President of the A J Fletcher Foundation. Quoting from that website:

"Damon has been in the nonprofit sector since 2007 and headed AJF since 2012. A native of Arizona, he moved to the Triangle just as quickly as he could and has called North Carolina home since 2005. Previously, Damon led the North Carolina Center for Voter Education, an organization dedicated to improving the electoral process. He is a graduate of the University of Arizona School of Law. He is passionate about surfing, helping nonprofits thrive, his family, and the community he calls home. He is kinda-sorta thinking about a paleo diet and seeking new athletic endeavors now that his knees are asking him to give up the old ones. He vehemently opposes Daylight Savings Time."

Burley Mitchell --

Democrat Burley Mitchell had already served as an associate justice on the NC Supreme Court since 1982 when Governor Jim Hunt appointed him Chief Justice in 1995. He served until his retirement in 1999, after a total of 30 years on the court. In 2011 he was presented with the Liberty Bell Award by the Young Lawyers Division of the North Carolina Bar Association. As a member of the UNC university system's board of trustees, Mitchell angrily demanded a full investigation of bogus classes and automatic good grades given to UNC-Chapel Hill athletes, and he recently came out strongly against the Republican plan to "reorganize" the North Carolina judiciary.  He also presumably and very recently changed his voter registration from D to U.

UPDATE
Republican operative Dallas Woodhouse, executive director of the NC Republican Party, has already announced the Republican "remedy" for what went down today: A constitutional amendment on the ballot in November to fix the SBEEE permanently with four Republicans and four Democrats, the ninth member go hang! Because obviously 4-4 works so well.

FURTHER UPDATE
Governor Roy Cooper has appointed Damon Circosta as the ninth member.

Miracle on North Harrington Street

James Baker

Judge James Baker, Republican member of the NC State Board of Elections, voted with the two Democrats yesterday to defeat the forces of Governor Patrick McCrory, 3-2.

It was "the Bladen County case." McCrory's lawyers wanted 400 African-American absentee ballots thrown out over all sorts of suspicions.

It's hard to piece together from available print sources, but here's what I understand about Bladen County (mainly relying on the eye-witness tweeting of InSightUs.Org):

Leslie McRae Dowless Jr., 60, an incumbent Bladen County Soil and Water Commissioner -- one of five District Supervisors -- a former Democrat currently registered Unaffiliated who also just won reelection on November 8 -- filed an election protest on November 15 -- a week later -- alleging voter fraud through “a massive scheme to run an absentee ballot mill involving hundreds of ballots” by the Bladen Improvement Association PAC, "a committee funded by the North Carolina Democratic Party and numerous local and statewide Democrats" (Bladen Journal). Dowless won reelection and wanted revenge on the Bladen Improvement Association, which had endorsed and helped him in 2012 -- "They had me on their sample ballot," Dowless testified -- but then…

“In 2016, were you endorsed by the Bladen County Improvement Association?” Joshua Malcolm asked.

“No sir.”

That may have been the moment when Judge Baker changed his vote.

So there's the motive for the Bladen County protest -- pure political revenge (and thank you, Joshua Malcolm).

Evidence of fraud? … not so much. Oh evidence of aggressive ballot-harvesting, no doubt about it. An organized campaign to solicit and get people to vote absentee with paid campaign workers going door-to-door in some neighborhoods and soliciting people to request absentee ballots and then "assisting" those voters in getting those ballots in on time, including witnessing them. There's always the possibility -- however remote -- that one-on-one "assistance" can cross a line toward coersion or fraud. Possibility … the door the Republicans kicked open like a SWAT team.

NB. It was the Republican General Assembly that made absentee voting easier -- no photo i.d. required -- and the Republicans are past masters at "ballot harvesting." They have regularly beaten the Democrats in the absentee vote. But they obviously don't like it when Democrats, especially African-Americans, also get busy after absentee ballots.

But I haven't even gotten to the best part yet!

The Republican lawyers attempted to keep Dowless from testifying. They in effect hid him. Malcolm was outraged, requested staff to immediately issue a subpoena for Mr. Dowless, at which point, or soon after, McCrory's lawyers presented Mr. Dowless for questioning.

Malcolm asked, “Does Mr. Dowless, the individual who brought all these people here today … does your client intend to answer questions today without being immunized?”

McCrory's attorney Roger Knight: “He is present, and will testify today unless advised otherwise by his counsel. He is not waiving his 5th Amendment right to not incriminate himself.”

Under cross-examination by Joshua Malcolm, Dowless revealed that he had been "informed of irregularities" and induced to file his protest by a lawyer with the North Carolina Republican Party. Dowless also eventually indicated that he himself had been engaging in ballot harvesting, also with paid assistance, but he "took the 5th" when asked by Malcolm who had provided him with the campaign finance report documents appended to his protest filing.

SBOE member Malcolm, boring in: “Do you know Caitlyn Croom?” (one of the get-out-the-vote canvassers charged with wrongdoing in Dowless’s protest).

“Yessir, I know her. She helped me with my campaign.”

“Did you pay her?”

“Yessir, I paid her for bringing in completed absentee ballot forms.”

So Dowless was engaged in the exact same ballot harvesting that he was complaining about and about which he's fearful he might be charged. Hence, the invoking of the 5th Amendment. Mr. Dowless did not even seen clear on the allegations in the protest he had signed, which the Republican lawyer had evidently written for him.

Interesting crux revealed under Josh Malcolm's questioning: Dowless had also been contacted before the election by SBOE "investigators" (because Dowless had reached out to the SBOE to complain?). Did the SBOE investigators tip off the McCrory team that there might be grounds for throwing out black ballots in Bladen and that Dowless could be the vehicle?

The lengths to which the McCrory and Woodhouse regime have been going to keep Pat's ineffectual posterior in the governor's mansion … and the fact that Grant Whitney, the Republican Chair of the SBOE, and The Finder-of-Taint Rhonda Amoroso, the other Republican, were willing with their SBOE votes to wipe out a few hundred ballots based on Mr. Dowless's testimony -- just shows the tawdry depths to which desperation will sink:

"It has to be hard being the first North Carolina Governor to lose a reelection race. He couldn’t do what Jim Hunt, Jim Martin, Jim Hunt again and Mike Easley did. Bev Perdue was a one-termer, but she wasn’t run out."

--Gary Pearce

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."

Bill Aceto Skates, But the Ice Proves Thin

All things considered, it was not a good night for Watauga BOE Chair Bill Aceto. It was a surprisingly bad night for Watauga County Attorney Four Eggers (who wasn't even there but who got talked about bigly). It was an out-and-out disaster of a night for the other Watauga BOE member, Nancy Owen, who also wasn't there and about which, see below).

Aceto had earlier -- you'll recall, perhaps -- based his whole blueprint of inaction on Mr. Eggers' legal memorandum that the state BOE had no authority to set an early voting plan for Watauga, once the local board had failed to do its job.  Eggers Aceto subsequently wrote his memo to the state saying a single early voting location at the local BOE offices would be "adequate," in his opinion. He was in a legal sense defaulting. He was also in a practical sense skating over a pit.

Aceto continued to skate right up until Wednesday of this week, just hours before the SBOE was scheduled to meet to determine Watauga's fate, along with 32 other counties. By Wednesday, he had discovered conclusively that indeed the state BOE intended to treat Watauga like any of the other 99 counties in North Carolina and not as some special case exempted via a "lack of jurisdiction" claim.

Democrat Stella Anderson had submitted her plan by the deadline, backed up with charts and graphs of data dealing with (the required-by-statute) demographic, geographic, and partisan data . With the deadline for submission gone by, up pops Aceto scant hours before the hearing was set with an email saying he wanted his plan considered after all. (Apparently, deadlines are wholly porous if you're the Local Republican In Charge.) So Aceto skated on down to Raleigh yesterday, confident.

First thing that happened, Four Eggers' now famous "jurisdictional" argument simply evaporated. Poof. The only people who raised it were a couple of attorneys there to argue the law if necessary, but it was never necessary. Bill Aceto is not -- truth be told -- good on his feet, and without Four Eggers there to tell him what to say....

It was never in doubt: The state BOE can decide our fate, and they did.

(I sat directly behind a small gaggle of lawyers, none of whom I'd ever seen or met. They were buzzing at the beginning of the Watauga case about Four Eggers' legal memo. One turned around to me: "What happened to the whole 'you don't have jurisdiction' argument?" I shrugged. Did he know I had written about the Eggers' legal memorandum?)

Deciding Watauga's Voting Fate
The Republican board members came to the table already determined to give Aceto what he wanted, which was fewer hours than the Anderson proposal and a site at Legends rather than the Student Union, and they were very willing to throw Aceto numerous life-lines. (There'll be a subsequent post here, with color commentary, on those sterling SBOE public servants and their collective and individual behavior in the marathon meeting yesterday.)

The real sticking point last night was Chancellor Sheri Everts' refusal to surrender Legends for early voting. (It's unsuitable in many respects, which Anderson had clearly and thoroughly outlined in her submission, and is a revenue-producing venue for bands and dancing.) Anderson had submitted Everts' letter of denial to the SBOE, with ASU General Counsel Dayton Cole's covering letter saying "this is a negative response to your request," but Republican SBOE member James Baker just couldn't get past the fact that he couldn't find the exact words, "Get the hell outta here about using Legends!" in Everts' letter, so he muled and hemmed around like some sit-com character: "What is the Chancellor saying? Oh, my! I don't know! What does it all mean?" (That Baker is a source of barely concealed embarrassment, even to his fellow Republicans, is palpable.)

Republican board member Rhonda Amoroso began to cheer-lead for Legends. She volunteered that she had once driven past the place, and it looked fine to her. "I couldn't find the Student Union," she added, which she intended as a major indictment of its suitability.

"Six thousand voters did find it just fine last March," I shouted from the back of the room. Well, I didn't actually, but I came damn close. (Having waited in that fetid cattle car of a meeting room for over ten hours for the Watauga case to be called, I didn't want to be thrown out at the moment of truth. So, yes, I chickened out.) The Board members, some of whom claimed they were all about "the data," had either never looked at the early voting statistics in Watauga (provided by Anderson), or, if they had ... meh, data schmatter.

Republican SBOE Chair A. Grant Whitney, the Blutto of the Republicans, growing more and more impatient with the whole Watauga drama and seeing no way he could put the knife in Anderson's chest and get away with it, suggested the "compromise" that Mr. Baker put into the form of the motion that passed 3-2 (with the two Democratic members voting no):

“Move that we adopt the plan I will refer to as the Bill Aceto Plan with the following caveats: if the Chairman of the Watauga County Board of Elections cannot secure in writing from the Chancellor, or Counsel to the Chancellor, permission by the Appalachian State University to use the Legends site within five calendar days [making the deadline Tuesday, Sept. 13, 5 p.m.], then Plemmons Student Union will automatically be used. Further: If permission cannot be obtained from ASU within 5 days -- written permission by the Chancellor, or Counsel to the Chancellor, to the Chairman of the Watauga County Board of Elections -- then Plemmons Student Union will be substituted in all places where the Aceto Plan calls for ASU Legends.”

I believe -- and other people heard him say it -- that Aceto commented that the motion put him in an impossible position. Other people in the room said they heard very clearly the cracking of ice.

So now Bill Aceto and Four Eggers, who up until last night have willfully disrespected and/or ignored Chancellor Everts, and whatever NC GOP goon squad Eggers can recruit for the job, will all now until next Tuesday be assaulting the Chancellor, urging her to give in, give up, surrender on the issue of Legends. Next Tuesday at 5 p.m. is zero hour, when perhaps hell freezes over at last.

What Was Bad Last Night for Four Eggers?
Bill Aceto was forced by Democratic SBOE member Joshua Malcolm to admit that he had gotten Four Eggers to write read and approve his plan before submitting it, further evidence -- as though we needed it -- that Four Eggers is the be-all and end-all of ballot-access in Watauga County, while also serving the Republican majority on the County Board of Commissioners. He has been in my opinion operating for years with a clear and persistent conflict of interest.

The main issue in the November elections -- so far as the County Commission is concerned -- is ending the corrupt accretion of power in county government of the Eggers Eggers Eggers & Eggers law firm.

What Was Terrible for Nancy Owen Last Night
Nancy Owen, Bill Aceto's fellow Republican on the Watauga BOE, is justifiably notorious now for failing to second Aceto's early voting plan at the August 15 meeting of the board. Back last July I had described her as a "mute stump," which was just mean. She failed to show up for the mandatory state Board of Elections two-day training sessions last month (or was it July?), and she failed to show up in Raleigh yesterday. The only time the SBOE has  actually experienced her existence was when she was forced to be on the February 10 teleconference with the SBOE (over the March primary early voting plan) because Aceto was missing, and someone had to answer questions about the "majority" Republican plan. She embarrassed herself. Or rather Eggers-Aceto set her up for embarrassment. She couldn't answer questions. She didn't understand anything about the Judge Stephens order. She'd been kept in the dark.

Last night, SBOE Chair Whitney suddenly asked Aceto, "Would you tell me where the third member of your board is? I would like to know who that member is and why she isn't here. And why she didn't second your early voting plan in August." Whoa!

Not having shown her face at the SBOE up until now, I believe Nancy Owen might not ever want to show her face at the SBOE.

Other Super Bad Moments for Bill Aceto
Bill Aceto had some papers in his hand which he waved at the board members in his attempt to convince them that there has been major election law violations -- outrageous electioneering -- committed at the ASU Student Union in the past. Stella Anderson had pointed out that no electioneering reports had ever been filed with the local BOE because of the Student Union. Aceto: "Here are some!" and he passed up his pieces of paper ... which turned out to be hair-on-fire accusations written up by Watauga Co. GOP Chair Anne Marie Yates and her daughter about supposedly terrible things they had supposedly witnessed, and which they sent not to the BOE as an official report but to the NC GOP as partisan buffalo dust.

SBOE member Malcolm listened to Aceto and leveled on him: "I do not believe you, sir. I do not believe that there were violations of state law going on." Whoa! again.

Before that moment Malcolm had questioned Aceto closely on exactly how he had "negotiated" with Chancellor Everts for the Legends site. "Is it true, sir, that in your letter to the Chancellor, you warned her that she was not to even consider the Student Union as a possible site for early voting." Why, yes, Aceto admitted, so Malcolm evaluated his negotiating skills: Why would you do that? Malcolm asked, appending a condemnatory "Sir?" to the question. Why would you open supposedly good-faith negotiation by announcing that you would not even consider one viable option?

Why indeed?


Here is the link to the Watauga Case video posted by WRAL: "State board sets early voting schedules, Part 2." The Watauga case begins at 4:55 and is fraught with bad sound and the occasional glitch.