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Follow the latest news and information about voting and the 2020 election, including essential information about how to vote during a pandemic and more.

With NC Mail Voting In Full Swing, Fate Of Flawed Ballots Still Unclear

Tiffany Tertipes

County boards of elections began processing absentee mail ballots this week as a record number of North Carolinians are choosing to vote by mail because of the coronavirus pandemic.

But there is still no resolution as to how mail ballots with flaws – such as a missing witness signature – will be counted. Wednesday, a federal judge did not approve a proposed legal settlement by the State Board of Elections over how to fix mail ballots with problems.

WFAE political reporter Steve Harrison talks with "All Things Considered" host Nick De La Canal about what happens next.

De La Canal: Let’s start with the numbers of people voting by mail to get some perspective on how big of a deal this is.

Harrison: I’m going to throw some numbers at everyone. Four years ago, 200,000 North Carolinians voted by mail in the presidential race. And this year, more than 1.1 million people in the state have already applied for an absentee mail ballot – and 304,000 have been returned.

So we are talking about a lot of people.

But these next numbers are the ones that are in question. There are nearly 11,000 ballots that have been returned for having problems – things like a missing witness signature on the envelope, or maybe the voter forgot to sign it.

De La Canal: OK, so there are 11,000 mail ballots that have problems, and that number is sure to grow as more ballots are mailed in. What has the Board of Elections said should be done with those?

Harrison: So in August, as part of a federal lawsuit over mail voting in North Carolina – and I should say there are multiple lawsuits – a federal judge, William Osteen, dismissed most of the requests from a group called Democracy NC.

But he did say that people with a flawed ballot should be given an opportunity to fix their ballot, and at the time, it was presumed that meant immediately sending the voter a new one.

De La Canal: But that’s not what happened, right? Voters are being allowed to sign what’s known as a cure affidavit.

Harrison: Yes -- or at least they were. The idea behind this affidavit was that the voter would sign and say, “Yes, this ballot is mine and it’s legitimate.” The Board of Elections voted to agree to that last week as part of a settlement with yet another lawsuit – this one filed by the Alliance for Retired Americans.

And this is where things broke down.

State Republicans said, "Wait, you can’t do that." Because if a mail ballot is missing a witness signature, then the cure affidavit lets the voter sign the ballot and say, “Yes, it’s mine”--  and they don’t have to have that witness sign it.

Earlier this summer, the General Assembly in a bipartisan vote passed a law that said you no longer need two witness signatures, just one. And Republicans say the law is the law, you need that witness signature.

Here’s Republican Senate leader Phil Berger talking about two new laws that were passed in 2019 and this year about mail voting.

Berger: "And in both instances, Gov. Cooper signed the bill, signed both of those bills. Not only did they pass to a bipartisan majority, they were endorsed by the Democratic governor."

De La Canal: So the Republicans say the Democrats are trying to undo state law regarding witness signatures, and other parts of mail voting. What are Democrats saying?

Harrison: There is another part of the legal settlement that Republicans don’t talk about as much. And that’s extending the date that mail ballots can be counted, from arriving three days after the election to nine days after.

But they still need a postmark of on or before Nov. 3, Election Day.

Here’s what Democratic State Sen. Natasha Marcus of Mecklenburg said about the extension:

Marcus: "So in other words, without the settlement, a voter can do everything that we ask them to do – fill out their ballot correctly, put in the mail by Election Day, but if takes more than three days for the U.S. Postal Service to deliver it, it’s not counted. It is literally thrown out."

Harrison: And she says that the witness signature hasn’t gone away, but that the Board of Elections has found a common-sense solution to fix ballots with problems.

De La Canal: And as I understand it, the Board of Elections has told the counties not to do anything with those 11,000 mail ballots that are flawed or incomplete. They are waiting on further clarification from the courts, is that right?

Harrison: Yes. So Wednesday, Judge Osteen gave Republicans a victory when he said in an order that the proposed settlement about the witness signature doesn’t work and that it goes against the state law that Berger talks about.

But the proposed settlement will also be heard in state court in Raleigh on Thursday morning, relating to a yet another lawsuit.

So it’s a "wait and see."

And people who have one of those flawed ballots can still be heard. They may have to vote a new mail ballot, they may decide to vote in person … or they may be able to sign that cure affidavit.

And all that matters in a close race. Twelve years ago, Barack Obama won North Carolina by 14,000 votes.

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