Elections director under the klieg lights
GOP lawmakers say State Board of Elections chief has lost voters' confidence
It was a grilling, all right.
The Senate elections committee spent more than two hours Tuesday with Karen Brinson Bell, the director of the Democrat-led State Board of Elections. The meeting notice said it would be “a question and answer session regarding the conduct of the 2020 General Election.” It was more like an interrogation.
The questions to Brinson Bell broke along partisan lines, with some bluster — Republicans chiding, Democrats praising. Brinson Bell was on the defensive. For good reason. Though the 2020 election saw record turnout, with 81% of Republicans and 75% of Democrats casting ballots, moves the board made in September without the legislature’s approval left those actions in legal limbo until the weekend before Election Day.
Questions about them remain. Republican lawmakers say those last-minute acts undermine confidence in the ability of a partisan state board to manage an election impartially.
Legislators objected to a secret settlement the board made with Democratic Party superlawyer Marc Elias in late September, a couple of weeks after the first absentee ballots had been mailed to voters. Though the board, made up of three Democrats and two Republicans, approved the settlement by unanimous vote — in closed session, which raised concerns about its legality — the legislature was shut out, Sen. Paul Newton, R-Cabarrus, the committee’s co-chairman, noted during the hearing.
Brinson Bell asserted, as she has before, the board merely modified a few rules making it easier to conduct the election. It anticipated delays by the U.S. Postal Service. She reiterated that settling this lawsuit would end seven others filed by activists and partisans — and the plaintiffs didn’t get everything they wanted.
Tuesday’s hearing highlighted one change. The board extended the deadline for counting most absentee ballots to nine days after Election Day (November 3), so long as they were postmarked by the 3rd. Months earlier, the General Assembly had set a three-day post-election deadline as it expanded voting access to respond to COVID-19. About 2,000 ballots came in during that six-day period. (Federal law sets separate deadlines for ballots cast by the military and U.S. citizens living overseas.)
Lawmakers said the board changed the law, rather than the rules, violating the state and U.S. constitutions. The General Assembly filed a lawsuit to reverse those changes, but in late October the N.C. Supreme Court rejected the lawsuit. The Supreme Court of the U.S. (with notable dissenters) refused to take it up.
Earlier this month, Politifact rated Brinson Bell’s statement that the board merely changed rules “mostly false.”
From senators’ questions and her answers, we learned or were reminded:
The General Assembly was completely in the dark about the September settlement. Newton said:
The legislature was ... a party to that lawsuit, yet the settling parties withheld all information surrounding the talks. We didn’t know about the existence of the negotiations until the settlement was announced (Sept. 22). … In fact, legislative lawyers were supposed to participate in a deposition as part of the case on the morning the settlement was announced. When legislative lawyers arrived at the location for the scheduled deposition, a lawyer for Attorney General Josh Stein (a Democrat who barely won re-election) claimed he didn’t know why nobody else had showed up. … Two hours later, that same lawyer filed a 28-page settlement on behalf of the Board of Elections.” (Link to settlement here.)
Brinson Bell said the lawyer leading negotiations for the board was Swain Wood, Stein’s general counsel. Brinson Bell called Wood a nonpartisan staff lawyer, but in fact Wood is a political appointee. Wood didn’t sign the settlement agreement. Other lawyers in Stein’s office did.
Republican senators cited several federal judges who said the settlement indeed violated election law — including U.S. Supreme Court Associate Justice Neil Gorsuch. In a dissent to the court’s decision not to take up the case, Gorsuch wrote, “efforts like these not only offend the Elections Clause’s textual commitment of responsibility for election lawmaking to state and federal legislators, they do damage to faith in the written Constitution as law, to the power of the people to oversee their own government, and to the authority of legislatures.” (Sen. Natasha Marcus, D-Mecklenburg, noted that the judges claiming the settlement violated state law were on the losing side of the case.)
Brinson Bell refused to share material from a Twitter account she maintained before she led the elections board. She took the board’s top job after working with former state elections board chief Gary Bartlett at the Ranked Choice Voting Resource Center, a nonprofit group. Sen. Chuck Edwards, R-Henderson, noted that partisan tweets pushed former elections board chairman Andy Penry, a Democrat, out the door during the board’s investigation of ballot harvesting in the 2018 9th U.S. Congressional District election. Brinson Bell said she deactivated the account when she joined the elections board staff. She seemed flummoxed by requests from Edwards and others for the tweets and wondered why they would be relevant.
Though everyone granted elections officials (at least local ones) had performed admirably under the duress of a pandemic, the hearing was testy. Senate Rules Committee Chairman Bill Rabon said Brinson Bell hadn’t changed the law but had “broken” it. Sen. Carl Ford, R-Rowan, asked her why the General Assembly shouldn’t demand her resignation.
We haven’t heard the end of this. Senate Bill 326, co-sponsored by Newton and Daniel, would require absentee ballots to arrive no later than Election Day to be counted. (Military and overseas ballots would be exempted.)
I’ll have more to say about this later. Perhaps in several venues!
Meantime, those disputed tweets may emerge eventually. In an email, Pat Ryan, spokesman for state Senate leader Phil Berger, told me:
Republican legislators — and many, many voters — have no confidence in (Brinson Bell’s) impartiality after her secret settlement last year. Whether Ms. Brinson Bell was a political activist before accepting this job is entirely relevant to the legislature’s and public’s trust in her. What’s more, a previous Cooper appointee to the State Board of Elections was forced to resign for exact same material that we’re questioning Ms. Brinson Bell about.
Legislators were disappointed that Ms. Brinson Bell refused to disclose her past public statements, and there are conversations taking place about possible next steps after yesterday’s hearing.
Could those steps include subpoenas? We’ll find out.
It’s a doll revolution
Live music’s coming back (Koka Booth Amphitheatre in Cary reopens April 1!) and let’s get ready. I’ve been on a Bangles kick lately, and here they were on GMA in 2002 playing an Elvis Costello song. Their version’s up there with the original. Great band.