Resignation of NC elections board Republicans raises questions about closed session vote

RALEIGH, N.C. (WBTV/WECT) - The resignation of the two Republican members of the North Carolina State Board of Elections late Wednesday night has raised new questions about a vote taken by the board that would ease some legal requirements pertaining to absentee by mail ballots.

The NCSBE met in closed session on September 15 to resolve two lawsuits challenging certain regulations pertaining to absentee ballots.

During the closed session, board members reportedly took a vote on whether to agree to change certain policies in order to resolve the lawsuits.

The result of the vote, which the NCSBE has said was unanimous, but not the details of the changes, was announced to the public after the board re-convened in open session.

Brooks Fuller, an attorney and Executive Director of the North Carolina Open Government Coalition said the closed session vote may have violated the state’s open meetings law.

“While the Open Meetings Law may allow — and I think reasonable minds can differ on that — may allow for a lot of activity surrounding settlements to be discussed in closed session, at the very minimum, I think it’s very important for votes and other deliberations that are not otherwise privileged to be public,” Fuller said.

Fuller said the law allows a very specific list of instances in which a government board can meet in closed session. While boards can meet to discuss and get advice about legal matters, he explained, a vote regarding those matters should be made in public, not in closed session like what the NCSBE did.

“There is nothing more important for local and state government than for citizens to know exactly how their leaders vote,” Fuller said. “Maybe that’s a pro forma distinction but that’s a really important thing to have done in public.”

As a result of the closed session vote taken by NCSBE, lawyers for the board and the plaintiffs filed a joint motion Tuesday in one of the cases to settle the matter, where plaintiffs would cease the litigation in exchange for changes in policy outlined by the state board.

Those changes were two-fold: First, the deadline for properly-postmarked absentee ballots would be extended until November 12. Ballots must still be postmarked by 5 p.m. on Election Day, Nov. 3, and must be in the possession of the county board of elections by 5 p.m. on Nov. 12, which is the day before each county will canvass the election and certify results.

Second, it adds additional “cures” to common deficiencies with absentee by mail ballots.

The state board has said the most common reason ballots are not being accepted so far are due to witness deficiencies.

A change in state law passed in June reduced the requirement for witnesses on a ballot envelope from two to one in order to accomodate challenges brought on by the coronavirus pandemic.

The new cure does not remove the witness requirement, but adds common deficiencies to the list of items that can be rectified by a signed affidavit from the voter, including a missing witness signature, lack of an address listed for the witness or if the witness doesn’t print their name along with their signature.

County boards are instructed to notify voters both by mail and by email and phone, if the information is available, if their returned ballot has a deficiency. The voter can then return the affidavit by mail, email, fax or in person.

The new memo included in the joint motion also instructs county boards to activate dedicated drop-off stations for absentee ballots at the board office and at every early voting site.

The joint motion is still pending and a hearing is set in the case for next week.

Republican leaders in the North Carolina General Assembly, who are also defendants in that case, have told a judge they were not consulted on the agreement, said they were not aware of the motion until it was filed and have asked for an opportunity to review the motion and determine whether they will oppose it.

NCSBE Chairman Damon Circosta defended the board’s closed session vote in an interview on Thursday, saying it was necessary to finalize the settlement.

“Well, we had to, in order to make sure the other party — the plaintiff in these cases — didn’t know the bounds of the settlement proposal that was before them, we couldn’t tip our hand to them,” Circosta said.

Circosta said the board made details of the settlement public as soon as it was finalized, and pushed back on the notion that any discussion of settlement terms should have been done in public.

In his interview, Circosta would not say whether the board was proposing settlement terms or discussing whether to accept a settlement offer that had been put forth by the plaintiffs, claiming that information was protected by attorney-client privilege.

“If the question is ‘are we being secretive?’ the answer is no,” Circosta said. “We took a closed session vote on purpose to make sure we protected the public’s business and then, as soon as we were permitted to, filled in the public on all those details.”

WBTV and WECT have requested minutes from the closed session, which would give more details about the exact nature of the briefing and discussion regarding the settlement, but those minutes have not yet been made public by the NCSBE, even though they should now be public under the law.

“Closed session meeting minutes and general accounts and narratives of what happened in closed can be made as soon as the reason for the closed session is no longer a threat to the interest involved in government,” Brooks fuller, with the Open Government Coalition, explained.

“So, if there’s, for instance, a reason to meet confidentially or to meet in secret or to meet in closed session, as soon as, in this case, that settlement is announced or that settlement is agreed to, then the meeting minutes can be very public, they can reflect all the business and they should because now the reason for the closed session is moot at that point that they’ve reached a settlement and the ink is dry.”

In North Carolina, only communication from a lawyer to members of a government body is protected by an attorney-client privilege. That means whatever members of a government body tell a lawyer is not protected. Despite that, the NCSBE has yet to produce the meeting minutes or elaborate on the terms of the settlement offer they authorized to the board’s lawyers.

In their resignation letters, Ken Raymond and David Black, the board’s two Republican appointees, while not specifically noting the closed session, referenced discussions about the settlement agreement claiming they believe they were misled during the discussion of that agreement.

Raymond wrote in his letter: “attorneys from AG Josh Stein’s office did not advise us of the fact that a lot of the concessions made in the settlement have already been denied in a prior case by a federal judge and another case by a state court three-judge panel. Secondly, we were led to believe that refusal to make a deal that included the extension of mail in absentee ballots, past the legal acceptance date, would also result in the elimination of the one witness requirement for residents voting absentee by mail. Additionally, we were led to believe the effective administration of the election itself rested upon a settlement. And if a judicial order were issued as voters cast their ballots, the effective administration of the election would be impossible.”

In a news release late Wednesday night, the NCSBE refuted the idea that board members didn’t have the information needed to make a decision.

“The unanimous agreement of the five-member State Board regarding the proposed settlement came after counsel to all board members from agency attorneys and litigation counsel before and during last week’s closed session meeting,” the release states.

With the resignation of the two Republican members, the NCSBE is left with a three member appointed board, which, according to state statute, can operate and conduct business because that number satisfies a quorum, even without any Republicans on the board.

Under the state’s Open Meetings Law, a judge could void the board’s vote — and, therefore, the authorization to enter into the settlement that brought about the changes to absentee policies — if any member of the public were to successfully challenge the closed session vote in court.

However, those policies have already been put into place, with 40 days remaining ahead of Election Day and more than a million voters having already begun the electoral process by requesting an absentee by mail ballot.