On election integrity, attorneys offer bipartisan unity

After the end of each exhausting Presidential election campaign, the vast majority of Americans finally get a chance to catch their breath and enjoy turning their attention to other matters. But for the small cadre of lawyers who practice election law and litigate election-related disputes, that’s the busiest time of the year, as challenges and protests are inevitably filed in all 100 counties across North Carolina.

But 2020 was unlike any election season in American history, and not just because of the COVID-19 pandemic. After an unprecedented attempt to overturn the results of an election, championed by a sitting president of the United States, a significant minority of the country is now expressing doubts—unfounded, and deliberately sowed and stoked—about the integrity of the election process itself.

Those election law attorneys have had the closest possible view to the counting of all of the ballots cast in this year’s election, and attorneys on both side of the political aisle say that everything they’ve seen in this election should give voters the utmost confidence that ballots are being counted accurately, and the outcomes reflect the will of the people. In particular, attorneys on both sides had the highest of praise for election officials in North Carolina and the way in which they administered an historic election.

“I think there was actually a very remarkable balance pulled off between the sanctity of the right to vote, the security of the election process, and the safety of both the electorate and the election workers,” said John Branch of Nelson Mullins in Raleigh, who counsels Republicans. “Far from 2020 being an election that should foster concern about the election process, I think we underwent an election in very difficult circumstances, and came out knowing that our process largely worked.”

Holds up well under pressure

A number of factors contributed to the smooth operation of North Carolina’s election. First, in-person early voting is unusually convenient in North Carolina, and so it had already become unusually prevalent even before 2020. The state also has “no-excuse” absentee voting—people can vote absentee by mail without providing any justification or reason. That too had been the case well before 2020, but when the pandemic hit, a record-shattering number of voters utilized both methods in order to avoid big crowds on Election Day.

Unlike in a number of states that saw close Presidential elections this year, local board of elections could begin processing absentee ballots before Election Day in North Carolina. No votes were actually counted before Election Day, but the processing of absentee ballots—making sure that they’re valid—is the time-consuming part, whereas actually counting the ballots is comparatively swift. As such, the vast majority of ballots cast in the state were counted on Election Night.

“That gives our county boards time to look at ballots and start reviewing them, as opposed to, say, Pennsylvania opening them on Election Day and having all eyes on them as they rush through reviewing ballots,” said Lauren Noyes of Wallace & Nordan in Raleigh, who counsels Democrats. It also gives us the chance to work out any kinks if anything comes up in the early vote.”

Attorneys for both sides praised both state and local election officials and the state’s legislature, which, on a bipartisan basis, passed a number of changes to election laws that made it easier to conduct an election during a pandemic. In particular, boards of elections were in frequent communication with campaigns and their legal teams to provide guidance and address potential issues that might arise.

The receipts are all there

Those advantages turned out to be crucially important because one of the closest statewide elections seen anywhere in the country in recent decades took place in the race for chief justice of the state’s Supreme Court. In that race, Paul Newby defeated Cheri Beasley by a little more than 400 votes, out of almost 5.4 million votes cast. To give a visual sense of how extraordinarily thin that margin is, it would be as if two runners ran a marathon, which spans 26.2 miles, and at the end they were separated by only a quarter of an inch.

Given the closeness of the race, the votes cast for chief justice were thus scrutinized heavily. Local rulings on the validity of submitted absentee ballots were challenged by both sides, all 5.4 million votes were recounted by machine, and ballots from a randomly selected sample of precincts were recounted by hand and eye.

In every case, the margins between the candidates barely budged. But precisely for that reason, North Carolina’s chief justice’s race served as a very timely sort of random spot-check of the integrity of the country’s election process, and a reassurance to voters that their votes were counted accurately.

“Whenever you have an election that’s been separated by 400 votes, so that every process, every memorandum that came from the state board of elections, has been scrutinized within an inch of its life, and every voting machine has been scrutinized and every absentee ballot has been scrutinized, that really is as good as any kind of post-election audit or assessment that you could possibly do,” said Roger Knight of Raleigh, who represents Republicans.

But the tweets are all hot air

Bruce Thompson of Parker Poe in Raleigh, who represented the Beasley campaign, was emphatic in drawing a contrast between the litigation over that contest and the “roadshow” of frivolous lawsuits which were filed in opposition to the results of the Presidential election and have all been brusquely tossed out of court.

In the chief justice’s race there were no allegations of fraud or misdeeds made by either side, but rather requests to reconsider rulings made about whether to accept certain absentee ballots—Thompson gave the example of a husband and wife whose votes weren’t counted because they each accidentally put their own ballot in their spouse’s envelope—to see if any mistakes had been made.

“What I would tell people is that in all the years I have dealt with elections law on the state and federal law, the people who administer the elections take their jobs seriously. Even in normal times, they have an incredibly difficult job just managing the logistics and dealing with the emotions that go into dealing with the accusations that get tossed at them,” Thompson said. “There really was a sense of, let’s take a look at this and make sure we got it right. It made me feel good about the people who do this. The bottom line for them is that they’re trying to get it right.”

That sentiment was shared unanimously by attorneys on both sides who spoke to Lawyers Weekly for this story. In a time of increasing partisan division, trust in the reliability of the election process and high praise for the officials who carry it out remains bipartisan among those who view it up close.

Follow David Donovan on Twitter @NCLWDonovan