By: Hannah Littlefield

As discussed in Part I of this two-part blog series, Senate Bill 68 (“SB 68”) is one of the more interesting election issues emerging from North Carolina. SB 68 merged the North Carolina Board of Elections and the State Ethics Commission, forming the State Board of Elections and Ethics Enforcement. The boards merged in June 2017; however, Governor Roy Cooper has yet to appoint members to the new board.

SB 68 was created by the Republican led General Assembly, and the changes to the State Board of Elections were put in place “just as a Democrat was elected governor, so as to weaken the governor’s appointment powers over the elections board.” As of October 31, 2017, “[a] three judge state court, on remand from the NC Supreme Court, unanimously held that the changes to the Election board rules came up as a nonjusticiable political questions, meaning the courts were without the power to reach the merits.” Governor Cooper is set to appeal the issue to  the North Carolina Supreme Court. Democratic judges actually outnumber Republican judges on the court.

As Governor Cooper continues to challenge SB 68, the press is finally starting to report on the issues surrounding SB 68. On October 19, 2017, The Chronicle, Winston’s Salem’s most-respected community newspaper, reported that “[t]he absence of a State Board of Elections (BOE) is causing a delay in Forsyth County getting new voting machines that may affect next year’s primary.” Because the State BOE’s term has expired, and because Governor Cooper has yet to appoint new members to the Board, several counties are encountering problems with getting new voting machines. According to Tim Tsujii, the Forsyth BOE Director, without a state board to certify new voting machines, the county does not have any options to replace their current equipment.

In North Carolina, counties are required to have paper-based voting systems by January 1, 2018. Forsyth County, like many other counties, planned to purchase new touchscreen machines that would create paper ballots, and Forsyth County wanted to test the new machines during this year’s municipal elections. However, at this time, there are no certified machines that Forsyth can purchase. Thus, Forsyth County will not be able to purchase new machines and test out the new machines before the primaries. The only options available to Forsyth County are to either rent older machines that are still certified, or use paper ballots for the elections.

Another issue surrounding SB 68 is the status of North Carolina County BOEs. In Raleigh, to comply with SB 68, “the Wake County board of elections . . . removed the chairman it had elected two weeks ago—the cousin of the state Republican Party’s executive director.” In October 2017, the Wake County BOEs appointed Democrat Mark Ezzell to replace the newly appointed Republic chairman Eddie Woodhouse, the cousin of NC GOP director Dallas Woodhouse. According to Ezzell, “the board changed course to comply with a new state law, [SB 68], that requires the chairperson of county elections boards to rotate between Republicans and Democrats each year—Democrats in odd years and Republicans in even years.” Prior to Ezzell replacing Woodhouse, Josh Lawson, the general counsel for the N.C. Board of Elections and Ethics Enforcement, wrote to Ezzell stating that in order for Wake to comply with SB 68, the chairperson should be a Democrat. At the time that Woodhouse was appointed as chairman, the board thought that they were doing the right thing. According to Ezzell, “[i]t was a bipartisan mistake.”

As SB 68 continues to remain in the court system, hopefully the press will continue to report on the issue facing North Carolina counties. For now, all that we know for certain is that SB 68 will be appealed to the North Carolina Supreme Court. The outcome, however, remains uncertain.

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