Is Roy Cooper’s State Board of Elections Irredeemably Racist? | Eastern North Carolina Now

Publisher's Note: This post appears here courtesy of the Civitas Institute. The author of this post is Andy Jackson.

    Over the past few weeks, I have seen headlines such as "Black voter's mail-in ballots being rejected at a higher rate, "Black voters are disproportionately having mail ballots rejected in North Carolina" and "North Carolina's Witness Rule Favors White Voters"

    So, what is going on?

    To prove that the person who marked a ballot is the voter to whom the ballot was issued, North Carolina law (GS 163-231) requires the voter to mark his or her ballot "in the presence of two persons who are at least 18 years of age" (except owners, managers, or staff members at assisted living facilities cannot witness for patients at those facilities and candidates cannot witness ballots if they are on that ballot). The witness requirement was reduced from two to one for the 2020 election only in bipartisan legislation the General Assembly passed last June. So, the law itself is innocuous.

    However, race-neutral laws can be applied in a discriminatory way, such as when practices by the U.S. Department of Agriculture (USDA) denied black farmers access to agricultural loans. So, has the North Carolina State Board of Elections (SBE) been discriminating against black voters the way the USDA once discriminated against black farmers?

    There have been accusations on social media, such as the one below, that racism is the driving force behind election officials "rejecting" ballots from black voters at a higher rate than those from white voters.

    The first thing we should remember about the SBE is that it is a partisan organization. The SBE, and every county board of elections, has a 3-2 partisan majority based on which party controls the governor's mansion. The current SBE board has three Democrats and two Republicans, all appointed by Gov. Roy Cooper from lists provided by the parties. That partisan board in turn appoints the executive director, who runs the day-to-day operations of the SBE. The current executive director, Karen Brinson Bell, was placed in her position through a partisan vote in coordination with Cooper's political team (Bell's predecessor was similarly placed in the position through a partisan process).

    Despite that, the SBE is tasked with enforcing election laws without bias.

    There appears to be no 14th Amendment equal treatment issue because there is no evidence the law on absentee-by-mail ballots is being applied unequally based on race — everybody needs to get a witness and fill out the absentee ballot container envelope properly. None of the articles decrying the difference in the ballot acceptance rate between whites and blacks offer evidence to the contrary.

    Also, the voter's race is not included on the ballot container envelope, making it impractical for election officials to take the time to look up the voter's race in the registration files before deciding if to reject it.

    The term "rejected" is also misleading as it implies that ballots are not being accepted due to deliberate actions by county election board administrators. In fact, as seen in this memo from the Bell to county boards of election, election officials have little freedom of action regarding mail ballots that are sent in with deficiencies such as no witness signature. That is the understanding of Catawba College political science professor Michael Bitzer (theGriot):

• We're seeing already a lack of familiarity with the process, whether it's signing the ballot or having the witness information completed. There tends to be a greater number from voters who were previously in-person voters. If you look at the numbers [from Sept. 14], the ballots denied due to incomplete witness information, 55 percent of those voters had voted in person in 2016

    In short, the absentee-by-mail ballots in question are not being accepted, not due to racism on the part of SBE or count election board officials, but due to mistakes by the people who are submitting the ballots.

    It is easy to toss accusations of racism based on tenuous evidence. In this case, the accusations are unwarranted.