But a federal judge put the plan on hold Oct. 3, arguing it changed the rules too close to Election Day. And a second federal judge expressed concern that the affidavits would allow voters to essentially dodge the state’s witness requirement — the primary method used in North Carolina to prove mail ballots are authentic.
Now unfolding across multiple lawsuits and courts, the arcane legal battle is poised to determine the fate of thousands of ballots in a critical and closely divided state where novel coronavirus cases are rising and former vice president Joe Biden is polling neck and neck with President Trump.
A total of 6,801 ballots were marked as “pending cure” as of Sunday, including 2,776 from Black voters, according to a Washington Post analysis of state election data.
The latest figures almost certainly understate the number of deficient ballots received by election officials, who are under instructions not to log new ballots that need errors fixed. In 2008, Barack Obama won North Carolina by just 14,177 votes.
“If this state is as competitive at the margins as it has been in the past, that could be something that would make a difference,” said J. Michael Bitzer, a politics and history professor at Catawba College in Salisbury, N.C.
“Some sense of clarity [about the cure process] needs to be given to the [election] administrators and to the voters, but I’m afraid any decision that’s made probably will be appealed, and it could set us up for a legal challenge come November 3rd,” Bitzer said.
The latest round of legal battles has roiled the mail voting process in North Carolina, where voters have embraced the option of casting absentee ballots in a dramatic way this fall. Nearly 1.3 million voters have sought such ballots so far, and roughly 473,170 have successfully turned them in — more than double the number of mail ballots requested in the state during the 2016 general election.
The surge in mail voting has brought equally intense partisan fighting over the rules, as Republicans and Democrats spar in court over which votes should count — a potential precursor to post-Election Day legal fights.
In a state where there have been efforts to suppress the Black vote with what one court described in 2016 as “almost surgical precision,” late-stage chaos over the cure process has raised concerns among Black leaders, who note that studies have found that ballots from their communities are more likely to be rejected on average.
While polls have shown that Black voters tend to prefer voting in person, the health risks posed by the pandemic appear to have increased their willingness to vote by mail this fall.
African Americans cast only 2,460 of the 26,514 mail ballots counted during North Carolina’s presidential primary on March 3, according to state data. Of the roughly 2,640 total ballots rejected for reasons such as late arrival or missing witness information, about 380 came from Black voters.
By comparison, about 75,170 mail ballots from African Americans have already been accepted for the general election, The Post’s analysis found.
“I’m grateful in one sense that there are numbers of African Americans who have taken the plunge in at least requesting absentee ballots,” said the Rev. T. Anthony Spearman, president of the North Carolina NAACP and a local elections official in Guilford County, which includes Greensboro. “At one point, we didn’t think they would do that.”
But the swift increase in the number of Black voters using mail ballots this year means that many are unfamiliar with the process, which involves having a witness sign the ballot envelope. Government data has shown that in several counties — including Guilford — ballots cast by Black voters have been flagged for errors at a higher rate than those of White voters.
“When the absentee ballots started coming in, we were astounded at the number coming in from folks who had not followed [the instructions] to a T,” Spearman said.
The stakes are high for both parties ahead of the general election, as both Trump and Biden vie for North Carolina’s 15 electoral votes. A Post average of polls in North Carolina finds the race between Trump and Biden essentially tied as of Sunday.
Down the ballot, Democrats are hoping that Senate hopeful Cal Cunningham will beat Republican incumbent Thom Tillis, bringing their party one seat closer to unified control of Congress. And in the state legislature, Democrats need a net gain of five seats to claim a majority in the Senate, which would give the party a role in the redistricting process scheduled to begin next year.
Voting experts and civil rights advocates said North Carolina’s complicated and painful history when it comes to voting rights — including battles over the state’s voter ID law, partisan and racial gerrymandering and a 2018 episode of ballot fraud by a Republican operative — has driven intense anxiety as the legal fight over the ballot cure process continues.
“We already have a situation where people are very concerned,” said Aylett Colston, chair of the political action executive committee of the Raleigh-Apex NAACP. “There’s already been a lot of chaos. . . . I think it’s the confusion and the uncertainty that end up creating the real stumbling block.”
Unfamiliarity with the details of mail voting — the process, the partisan controversies, even the terminology — can also raise suspicion about whether ballots will be fairly counted, she said.
“ ‘Cure’ is something we do with tobacco and ham in North Carolina,” Colston said. “So not everybody is going to know what it means when we talk about a ‘cure process.’ ”
The latest round of litigation began after a proposed settlement was unveiled on Sept. 22 between the state Board of Elections and plaintiffs who sought to loosen restrictions on mail voting. Under the agreement, voters would be allowed to fix missing witness signatures and other lapses using an affidavit, and ballots would be counted if they were postmarked by Election Day and received up to nine days later.
While the terms were unanimously approved by the state’s bipartisan elections board, the panel’s two Republicans resigned in protest the day after the announcement of the plan, which had drawn criticism from Republican legislators and officials from Trump’s reelection campaign.
“It was not my understanding that the cure would simply mean an affidavit, or cure document, would be sent to the voter for a confirmation that this ballot was their own,” David Black, a former GOP board member, wrote in a resignation letter. “No further information but a signature by the voter affirming the ballot was theirs would be required. . . . Not only was I taken aback by this but I am sure many county directors will be too.”
The central issue is North Carolina’s rule that mail ballots be voted in the presence of a witness. The state is one of roughly 10 with some form of witness or notary requirement for mail ballots this fall. However, North Carolina does not require the voter’s signature on the ballot envelope to match their signature on file — one of the most common ways of guarding against mail-ballot fraud.
Typically, North Carolina requires a notary or two witnesses to observe as the voter completes their mail ballot. A state law passed this year reduced the number of witnesses to one for elections held in 2020, and instructions on the ballot envelope require that the witness print their name and full address and provide a signature for the vote to count.
District Judge William L. Osteen Jr., a George W. Bush appointee, upheld the witness requirement in August while ruling that the state must allow voters to fix some problems with their ballots.
But the Sept. 22 settlement proposal has proved controversial with him, as well as Republicans, who filed two new suits challenging it in federal court. In a highly unusual move, the Trump campaign also sent an email to local election officials that week telling them to disregard the agreement.
“The NC Republican Party advises you to not follow the procedures outlined in this revised memo,” wrote Trump campaign official Heather Ford, according to a copy of the email submitted in a court filing. “. . . The Democrats are trying to undermine the election process through backroom shenanigans that should not be tolerated by our board members at any level.”
This past week in court, Osteen criticized the affidavit process announced by the state, saying it essentially does away with the state’s witness requirement, which he had deemed “a reasonable measure to deter fraud.” He is expected to issue a decision early this week.
Meanwhile, North Carolina officials have appealed the injunction to the U.S. Court of Appeals for the 4th Circuit, which is also expected to rule in the coming days.
“We are awaiting guidance from the courts on exactly how ballots with deficiencies should be cured during the pandemic. As soon as we know, our county boards of elections will quickly reach out to voters to inform them on how to make sure their vote counts,” Patrick Gannon, a spokesperson for the North Carolina State Board of Elections, said in a statement.
The ongoing litigation means that local election officials’ hands are now tied when it comes to helping voters fix their ballots. Under guidance from the state, they should “take no action” when they receive deficient ballots and must store them “in a secure location” until further notice.
Experts and voting rights advocates estimated that hundreds of ballots are beginning to pile up around the state.
“We are going to have to deal with this at some point and it’s just accruing while we wait,” Charlie Collicutt, director of the Guilford County Board of Elections, wrote in an email to The Post.
The process has been stalled for about a week.
“Nothing is happening — nothing. So it’s definitely concerning,” said Marian Lewin, a vice president of the League of Women Voters of North Carolina. “I’m dismayed because voters don’t know where they stand. . . . A week of inaction is scary, but two weeks. . . ”
“Welcome to North Carolina,” she added.
Supporters of ballot “curing” note that it benefits voters from both parties by offering them a chance to remedy errors before their votes are rejected. More than 534,000 mail ballots were tossed across 23 states in this year’s primaries, including nearly a quarter in key battlegrounds.
Because of litigation and state policy changes, voters in roughly 30 states are guaranteed the chance to fix problems with their mail ballots for the general election. This effort to reduce the number of rejected ballots has been announced in heavily populated states such as New York and Texas, where lawsuits helped bring about the new procedures.
Yet in a handful of states, the issue is still being litigated. A three-judge panel of the U.S. Court of Appeals for the 9th Circuit last week reversed a lower court’s decision allowing Arizona voters who forget to sign their mail ballots up to five days after the election to fix the problem. Under Arizona law, voters with mismatched signatures already have five days after Election Day to prove their ballots are authentic, but they are not permitted the additional time to correct missing signatures.
In North Carolina, the situation means thousands of ballots are stuck in the “pending cure” stage, including a disproportionate number from Black voters — 2,776 versus 2,490 returned by White, non-Hispanic voters. African Americans make up 22 percent of North Carolina’s population, according to Census Bureau data.
“What we’re finding is that indeed, voters of color — particularly Black African American voters — are having a higher percentage of their ballots currently held to cure,” said Bitzer, who has analyzed public data on votes cast so far in North Carolina.
As of Friday, about 40 percent of the votes in limbo were from African Americans, his analysis found. Most of these voters are new to casting mail ballots; according to Bitzer’s analysis, only 3 percent of them voted by mail in 2016.
The contrast with White votes was stark. Roughly 4 percent of all African American ballots returned are pending cure, compared with 1 percent for White, non-Hispanic voters, Bitzer said.
Pronounced contrasts emerged earlier this month in Guilford County, which had a 20.3 percent rate of “pending cure” ballots for African Americans as of Oct. 5, according to University of Florida political science professor Michael McDonald.
Spearman said the initial rejection rates inspired him to record a video explaining how to avoid simple errors, such as failing to include a city, state and Zip code when printing a witness’s address on the ballot envelope. The county’s “pending cure” rate for Black voters is now 6.2 percent, according to McDonald’s research at the U.S. Elections Project.
“There were a number of things that were very disconcerting for me as it related to the ballot envelopes,” Spearman said in a video posted to Facebook on Sept. 16. “. . . It’s very important, because what you do with this envelope may be not enough or enough for your ballot to be rejected — and one rejected ballot is too many.”
“Please make sure you complete all of those points, and we will certainly have gotten out the vote like we ought to get the vote out,” he said. “. . . Make sure you go out there and make some good trouble and vote.”
Yet there were signs the process could be onerous for many different voters this year.
Benjamin W. Nelson, a postdoctoral researcher at University of North Carolina at Chapel Hill, tweeted Friday that his efforts to cast a mail ballot for Biden had been thwarted multiple times. Twice in recent weeks, Durham County election officials rejected ballot requests from him and his wife, saying the last four digits of their Social Security numbers they wrote on their applications did not match the information on file, he said in an interview.
Despite a strong desire to avoid the polls, the couple now plans to vote early in person, an option that will become available to voters in the state on Thursday. But Nelson expressed concerns about people with less privilege, for whom obstacles to voting “compound themselves over time.”
“That’s the thing that’s bothered me about it most,” Nelson told The Post. “We’ll find a way to be able to do this. But I worry the barriers are just too high and the process is too confusing for people with less privilege to be able to simply exercise their democratic right to vote.”
Emily Guskin contributed to this report.