Durham County's Recount Reveals Friction Between State and Local Governments

DURHAM, N.C.—There’s not a lot of love lost between the North Carolina State Board of Elections and its subordinate board in Durham County these days.

Exasperation was written on the faces of the members of the county board Friday morning after they met to consider an NCSBE order that they recount more than 94,000 votes by Monday evening. The three members of the board huddled in a closed meeting, trying to figure out how to comply with the order. When one member, Democrat Dawn Baxton, emerged briefly from the room, reporters asked how much longer things would take. Baxton suggested the Second Coming might come sooner. When she emerged again, 20 minutes later, Baxton asked whether the press had been praying in her absence.

It’s not the reporters who need prayer: Divine intervention might be the only thing that could allow Durham County to meet a state-imposed deadline for the recount. The vaguely Kafkaesque story is a crisp illustration of the friction when state government and local government collide, and how that friction sometimes scrambles partisan lines.

The trouble started on election day, when Durham counted those roughly 94,000 votes late in the night, due to software delays. When they were added to the statewide total, they changed a decent lead for Governor Pat McCrory, a Republican, into a very narrow lead for his challenger, Democrat Roy Cooper.

Since then, Cooper’s lead has remained consistent, and has even grown a bit, standing at a little more than 10,000 votes. State Republicans have gone through a series of steps to try to prevent Cooper from being certified as the race’s winner. In counties around the state, Republicans filed protests and challenges, alleging ineligible voters and irregularities in counting. Nearly all of those were thrown out, and those decisions were not appealed. But the situation in Durham County has remained unresolved. (It’s not the only outstanding issue—there is also a pair of protests in Bladen County, while a conservative think-tank has filed a suit to try to keep the votes of some same-day registrants out of the tally.)

Tom Stark, a Republican lawyer here, argued that late tabulation of the votes raised questions and was grounds for a hand recount of the county’s votes. The McCrory campaign, in turn, announced that it would withdraw a request for a full state recount if Durham County recounted its votes. (That offer may have been a bluff: Candidates can only automatically demand a recount if the margin of the race is less than 10,000 votes, and McCrory is no longer inside that range.)

“The order that we received from the state board was an order that, it seems to me, was designed to cause us to fail.”

Under state law, every county board of elections has a 2-1 majority for the governor’s party and the state board has a 3-2 edge, meaning Republicans control the process from top to bottom. (This was also a controversy before the election. After a federal court threw out a voting law and demanded restoration of early-voting days, which are disproportionately used by Democratic voters and especially African Americans, some county boards found other ways to limit hours—a move urged by the executive director of the state GOP.)

Durham County considered Stark’s challenge last month, decided it was without merit, and rejected it unanimously. But Stark appealed to the state board, which held a three-hour meeting Wednesday to consider it. In short, Democrats argued that the fact that Durham County calculated the votes late didn’t amount to an “irregularity” in any formal or legal sense, and that therefore there wasn’t any grounds for granting the recount. Republicans, including Stark, conceded that they had no evidence of malfeasance, but said that a recount couldn’t hurt and would only help to instill faith in the cleanliness of elections. (There’s a cynical irony to this argument, which is that Republicans in the state have spent the last three years arguing, also without evidence, that elections are tainted by widespread fraud.)

The board voted along party lines, 3-2, to order that Durham conduct a recount, but decided that could be done via machine rather than by hand, a time-saving measure. That still left unresolved how long the recount might take—and with that, when the outcome of the governor’s race might finally be decided. On Thursday, Durham County Board Chair Bill Brian, a Republican, told The News and Observer he was guessing the recount would be resolved by the end of next week.

But later that day, Durham received the formal order for the recount from the state board. The NCSBE demanded that Durham County produce a plan to recount the votes by Friday at noon, and to have the count finished by 7 p.m. on Monday. Thursday night, the Durham County board announced an emergency meeting for first thing Friday morning.

Brian is a dry-humored, burly, white-bearded man with a knack for expressive faces—imagine a sardonic Santa. Friday, he was expressing annoyance, complaining about what he called an “unreasonable” order from the state board. When the board emerged from a closed session, Brian announced that it was requesting an extension of the deadline for the recount to 7 p.m. on Wednesday, and asking for an emergency state board hearing to grant it.

Brian then explained the litany of complications attending the state board’s order. In order to count the ballots, the county is supposed to have teams of two supervising each voting machine used to recount votes, and each team is ideally comprised of one Democrat and one Republican. The board was finalizing a plan to use 26 machines, so that means they needed 52 people—52 people who would work long shifts the entire weekend for the princely sum of $13 per hour. Even if they were able to find full crews, given an estimated 13 seconds per ballot, a back-of-the-envelope calculation suggests it would take around 13 hours to count all of the ballots.

So far, so good. But Durham County first has to get employees of the company that makes the voting machines to certify them. Brian had also read in local media that he was supposed to appear at a state board meeting on Saturday, though he’d received no notice. As a result, the board expected that they could start counting no sooner than Sunday morning. Even then, 13 hours would put the board comfortably ahead of 7 p.m. Monday, right?

Well, no. Because the NCSBE had ordered Durham County to count not just the governor’s race but every race, employees would then have to tally write-in votes for every seat, down to soil-and-water commissioner separately. Brian estimated that would take another 36 hours.

“Somebody always has a great idea, oh, we’ll just bring in new machines,” Brian said. But he rejected that, too: For every new machine, the board would have to find a new pair of workers—one Democrat, one Republican—background-check them, and pay them. (Brian semi-sarcastically invited the members of the state board to come chip in, pointing out that would guarantee at least three Republicans and two Democrats.) Even if there were plenty of applicants, it did not appear that the board of elections could plug in all 26 machines at its building without overloading the building’s circuits; electricians scurried around the room during the conversation trying to test the system. The board couldn’t just move the machines to another county building, though, because then they’d have to come up with a security plan for moving the ballots and locking them up overnight. That, of course, would require more money.

The board was guessing the whole process, which almost no one expects to change the result of the contest, would run $35,000 to $40,000. It was a rare point of certainty. “Right now, the money is coming out of the pockets of the people of Durham County,” Brian said. “At the end of the day, that’s the one thing we do know.”

Brian doesn’t seem like the type to lose his temper, but there was no question about his frustration. Baxton sat to Brian’s right, scowling. Margaret Cox Griffin, the third member, sat to the left, expressionless. Marie Inserra, a lawyer for the county, sat quietly for 25 minutes, before unleashing a furious outburst at the state for failing to upgrade software when it had a chance.

Although as Brian drily noted last week, “Everything is politically motivated in an election,” the tussle between Durham County and the state board doesn’t really break along party lines. Despite the partisan structure of the county board, its members have an incentive to appear to the local community untainted by political consideration. They’d considered the Stark complaint, found it wanting, and rejected it. Yet the state board, which seemed untroubled by the plain party-line vote, had come in and overruled them. That wasn’t just a pride-bruising reversal; it made Durham County look bad by suggesting there might be foul play. Even worse, the brunt of that decision was landing on the county board and its employees, who were getting ready to work all weekend to conduct a recount they didn’t they could finish to achieve a result that likely wouldn’t matter. Brian even took a mild swipe at the state GOP, which had asked for a hand recount. Brian said that would create a logistical nightmare—and then mused that perhaps that was the point.

Brian wouldn’t say point-blank that meeting the NCSBE deadline was impossible but everything else he said telegraphed it. “I’d rather not go on record saying that. I don’t know how we can get it done. No one yet has presented a plan that can get it done by 7 p.m. on Monday.”

Nonetheless, he said he expected the state board to reject Durham County’s request. And what would happen then if Durham County failed to meet the deadline?

“We have no idea,” Brian said. “Maybe I'll go to jail!” It was hard to know for certain, but it appeared that Brian might prefer incarceration to his current plight.