Durham County is staunchly Democratic, predominantly urban and historically African-American, a trifecta hostile to North Carolina Republicans. If the state GOP’s election protest could win here, similar tantrums could prevail elsewhere — such as the other 51 counties where McCrory’s operatives have filed largely spurious voter challenges.
But today in Durham, McCrory, via his proxy state Republican Party attorney Thomas Stark, was forced to fold.
The Durham Board of Elections, which like all county election boards in North Carolina, carries a GOP majority, voted unanimously, 3-0, to dismiss Stark’s protest for lack of evidence.
Yes, Stark’s arguments were thin, the testimony of his witnesses anemic. But beneath the masquerade that Stark was merely pursuing the noble ideals of truth and democracy, a more pernicious strategy was at work: To erode confidence in the voting process, particularly in African-American areas, to exact pain on the electorate commensurate with that felt by the loser, and to sow suspicion where there is cause for none.
Democrat Roy Cooper still leads McCrory by at least 5,000 votes, and even when the provisionals are counted, will likely win the governorship. But revenge is powerful and enervating. If the demand for recounts and challenges escalates into the winter, McCrory’s revenge will be served cold.
At least 350 people attended today’s evidentiary hearing, and the county fire marshal stood by to ensure the room did not overfill. The hearing was held because on Wednesday, Stark, a Durham registered voter and thus eligible to file an election protest here, successfully argued before the board that there was probable cause to proceed to the next level: a quasi-judicial proceeding at which he would produce evidence and witnesses to support his contention that Durham’s vote totals were inaccurate.
At issue were 90,000 ballots cast in early voting and in Precinct 29 on Election Day that didn’t properly upload to the state’s election software. But testimony on Wednesday and today showed that the ballots entered into the tabulating machines were properly recorded on the cards and subsequent tapes. There was no corruption of the cards, only a memory limit in the software that prevented that data from being uploaded to the state system.
Stark insinuated that the machines and data cards were not secure. There were “websites that tell people how to corrupt cards.” Someone could have introduced a virus into the cards. The cards ran out of battery power and the data disappeared. Someone could have surreptitiously slipped ballots into the tabulator in the middle of the night.
Witnesses for the State Board of Elections and ESS, the software company, testified that none of these scenarios was feasible.
But witnesses for the State Board of Elections and ESS, the software company, testified that none of these scenarios was feasible. The machines accepted the ballots. The results were downloaded to the cards and the tape. The tapes spat out the data on the cards; if there had been any corruption or erasure, the tape would not have printed. Thus, the data was solid; the only challenge was accessing it.
And the board of elections staff did just that. From the tapes, which mirror the cards, they manually entered the results with very few errors — five here, two there, a “3” was entered when the number should have been “30” — and none affected the outcome of a contest.
“Regarding the governor’s race, were the numbers the same?” asked Dawn Baxton, the Democratic member of the Durham Board of Elections.
“Yes,” testified Brian Neesby, a State Board of Elections business systems analyst.
The crowd cheered.
In fact, Stark’s argument that, “we still don’t know the ballots in the machine are equal to the reports,” strikes at the very heart of the voting process that entails electronic counting.
“We know to the extent of any tabulation,” Neesby testified. “Unless there’s a hand-eye recount, which has its own potential problems.”
Stark called three witnesses, including John Brookfield Posthill, who is registered as unaffiliated, but has voted Republican more often than not. Posthill testified that he was a volunteer for the McCrory campaign, and in that capacity, he was present at the Durham Board of Elections on Nov. 8. Beyond that fact, had trouble remembering the events of the evening.
Stark: “Did you see any of the cards?”
Posthill: I observed some of the cards on Election Night. An initial pile of 15 to 20 cards were brought in by an individual I can’t recall. At some point, [acting board of elections director] Kate Cosner began loading cards into machine to read them. I was there when the error happened.”
Stark: “What did you hear?”
Posthill: “I can’t speak to that. But I did witness her dealing with an issue.”
Stark: “How were the cards being handled that night?”
Posthill: “I’m not sure I can say. I’d never seen the process or been to the board of elections.”
Posthill went on to testify that an “individual with blonde hair — I thought she was a board member — to the best of my memory, someone said she had been talking to Roy Cooper earlier in the day.”
Durham Board of Elections Chairman Bill Brian, a Republican, struck Posthill’s testimony because it involved hearsay.
Michael Hale Gray, a registered Republican in Durham, served as a site supervisor and an election judge. Stark unsuccessfully used his testimony — which involved the actions of a dead man — to indicate that the cards and the tabulators were not secure.
Stark: “What care do you take with the cards?”
Gray: “We don’t see them. I saw one eight years ago, with [former elections director] Mike Ashe. He was working on certifying the tabulators. He was very open and transparent about the process and showed me how the tabulator was being certified. He allowed me to do it and he assisted. I saw spaces for two cards but didn’t see the cards.”
Bill Brian: “What they discussed five years ago is not relevant. And it’s hearsay. And Mr. Ashe has passed away.”
An avid runner, Ashe died in April 2015 of a pulmonary embolism at age 69.
John Lloyd, also a registered Republican, took the stand.
Stark: “Could a virus be loaded onto the card?”
Lloyd: “There’s a screen prompt and it will upload.”
Brian: “Do you have any evidence that this happened?
Lloyd: “We don’t have evidence that it didn’t happen. Since there’s any question about this, about transparent accurate elections — I don’t expect the number to be any different — why not do it?”
The board has given Mr. Stark the opportunity to come forth with evidence rather than empty accusations and speculation,” Hamilton said.
In his closing argument, Kevin Hamilton, a lawyer for the state Democratic Party and the Cooper campaign, asked the board to dismiss the complaint. “The board has given Mr. Stark the opportunity to come forth with evidence rather than empty accusations and speculation,” Hamilton said. “By any measure he has failed to do so. There’s no evidence of any violation of law or misconduct. The real cost is undermining public confidence in validity of elections.
Stark countered that “Every vote should count in an election. The process should be clear and honest. It’s a simple matter to count them.”
But the votes were counted. In Durham, Cooper received 119,786. McCrory, 30,180.