GOP wins legal challenge over political observers at NC polling places

The rules governing observers at polling places this year should be relaxed, a Wake County judge ruled Thursday, over objections from the N.C. State Board of Elections.

The Republican Party lost a separate legal challenge, attempting to move the deadline earlier for mail-in ballots. Lawyers for the elections board said that would result in thousands of legitimate voters being disenfranchised.

But the GOP won its challenge aiming to tweak the rules for polling place observers. Wake County Superior Court Judge Vince Rozier blocked a rule that would have kept observers from coming and going throughout the day.

The GOP said the more relaxed rules will make it easier for their attorneys to go from site to site, investigating issues that other observers there might flag.

Political parties have long been allowed to send observers to the polls to watch both voters and the people running the polls, to make sure nothing amiss happens.

It’s usually a low-profile affair. But many anticipate this year to be different. It’s the first major election since Republican President Donald Trump’s numerous false claims about 2020 voter fraud, which have gained support in the GOP even though Trump and his allies lost dozens of election lawsuits and failed to prove their claims of fraud.

The News & Observer reported this summer that a group led by one of those lawyers for Trump in 2020, Cleta Mitchell, has recently trained over 1,000 conservative activists to serve as observers around the state this year.

Mitchell helped Republicans win a separate challenge this summer — not in court, but rather in front of a GOP-dominated regulatory board, to shoot down new, even stricter rules the elections board had suggested for observers this year.

Rules for observers

There are two kinds of poll observers allowed in North Carolina — ones who have to stay at the same polling place, and at-large observers who can move around from site to site. The elections board was interpreting the rules as saying that if at-large observers stayed less than four hours at a particular site, their political party couldn’t send someone else to replace them.

Republicans said that was unfair since it would stop them from subbing out regular observers with party lawyers, who might be called to investigate claims being made by non-lawyer observers.

“We wouldn’t be able to replace the layperson observer with the lawyer observer,” said Phil Strach, attorney for the state and national Republicans bringing the challenge. “We would just be screwed.”

Terence Steed, an attorney for state government, said the rules for observers have been in place for years and criticized the GOP for only bringing this lawsuit right before the election. Early voting starts next week, giving the state little time to retrain thousands of polling place workers on the new rules.

Steed said the Republican Party has previously challenged many other election rules over the years — so the fact that it waited until now to challenge this rule points less to a valid legal concern, and more to the party realizing it was coming up short on volunteers and needed more freedom to shuffle them around.

“Frankly, it seems far more motivated by their inability to recruit observers,” he said.

Steed also voiced concern that relaxing the rules would disrupt polling places, by creating a constant stream of observers coming and going. But Strach said they wouldn’t be disruptive.

“We’re not asking to flood any voting enclosure with observers,” Strach said.

Rozier, a Democrat, said that while he would allow more flexibility for the at-large observers, his ruling would not mean that the parties could add random people as observers on Election Day. They still have to follow the usual rules for being approved ahead of time.

“As long as their names are on the list, then one of them may join two other voting-place-specific observers,” he said.

Mail-in deadline

The other part of Thursday’s hearing, which the GOP lost, concerned the deadline for when mail-in ballots can arrive and still be counted.

State law allows a three-day grace period. As long as a ballot is postmarked on or before Election Day, and arrives no later than three days after the election, it will be counted.

But this year the third day is a holiday, Veterans Day. Republicans at the legislature have previously tried to eliminate the grace period altogether — passing a bill Democratic Gov. Roy Cooper vetoed late last year. This lawsuit sought to force the elections board to keep to the three-day schedule even though mail would only be delivered on two days, due to the holiday.

Strach suggested the state board should just tell the U.S. Postal Service to focus on ballots only, if it’s worried about voters being disenfranchised.

Steed said it’s unclear if a state agency even has the ability to order a federal agency around like that.

“I think the argument that the state board could force a federal agency to just drop everyone else’s mail, in favor of the state board’s mail, is just not reasonable,” he said.

And anyway, Steed said, state law explicitly allows the state board to extend the deadline to the next non-holiday day, which it did.

Rozier agreed, and allowed the new Nov. 14 deadline to stand.

Like always, ballots will still have to be postmarked on or before Election Day.

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