How to Overturn an Election

Shortly before midnight on Nov. 8, 2016, after voting machine malfunctions caused hours of delay, Durham County delivered its last trove of ballots. The Democratic stronghold turned Republican Gov. Pat McCrory’s narrow statewide lead into a 4,987-vote deficit. 

Just like that, the election was over. But the campaign wasn’t. 

The McCrory team raised “grave concerns” about “the sudden emergence of over 90,000 ballots at the end of the night.” Those concerns evolved into allegations of widespread election fraud as operatives protested more than 400 absentee ballots and accused 119 people of voting illegally across the state.

Most proved baseless, and Republican-led county elections boards dismissed all but a handful. Even if each challenge had succeeded, McCrory wouldn’t have overcome Democrat Roy Cooper’s lead, which surpassed 10,000 once all votes were counted. 

Still, some State Board of Elections officials were alarmed, two former officials told The Assembly on the condition of anonymity. McCrory couldn’t catch Cooper, but he and his allies were nonetheless flooding the state with unsubstantiated allegations. The officials worried McCrory wanted to taint the election, which might give the Republican-dominated General Assembly political cover to intervene and hand him a second term. 

Robert Orr, a former state Supreme Court justice, told The Assembly he advised McCrory’s team to ask the General Assembly to do just that. Orr believed enough college-student voters didn’t meet the legal criteria to register to cast doubt on the outcome. 

Orr also knew that in North Carolina, overturning a disputed election is surprisingly easy

Under a state law passed by Democrats a decade earlier, if McCrory contested the outcome, a majority of the General Assembly—86 of 170 members—could “determine which candidate received the highest number of votes.” 

“You could, with a reasonably straight face, considering the number of votes at issue, say, ‘I'm just going to follow the process set by the Democrats and ask the General Assembly to sort through this,’” said Orr, a long-time Republican who recently left the party. 

Publicly, Cooper’s campaign downplayed the possibility, saying there was “no basis” for the General Assembly’s involvement. Privately, campaign officials calculated that Cooper’s lead was too large—and the risk to the state’s reputation too great—for leading legislative Republicans to bail out a governor they didn’t particularly like anyway

McCrory conceded on Dec. 5. 

It’s unclear how close the legislature came to deciding the election. But since then, the norms that made legislative intervention seem far-fetched have eroded. And the legal vulnerability that made it possible is still on the books, waiting to be exploited. 

McCrory’s month-long campaign to reverse his defeat foreshadowed the contentious politicization of elections that followed, culminating in Donald Trump’s insistence that the 2020 presidential race was “rigged.” 

Trump’s false claims have led large majorities of Republicans to reject President Joe Biden’s legitimacy and question the validity of elections. They also made the unimaginable a reality: a violent insurrection at the Capitol on Jan. 6, 2021. 

But Trump isn’t the only reason elections are awash in cynicism. 

In a state as closely divided as North Carolina, the process of counting votes is as important as winning them. The parties have clashed over redistricting, voter ID, absentee ballot requirements, and the agency that oversees it all. Democrats accused Republicans of making it harder for minorities to vote. Republicans accused Democrats of facilitating fraud. 

As the state prepares for the May 17 primaries, these fights have created a combustible environment. 

Twenty-seven of the state’s 100 county elections directors have resigned or retired since 2019, an unusually high turnover rate, according to records obtained by The Assembly. Some elections officials say their offices are straining under a deluge of conspiratorial records requests and hostile emails calling them corrupt or treasonous. 

“How will you stand before God knowing you just sat back and let communist dictators overtake our state and country?” a Gastonia woman asked the state board in August 2021. “Please act and stop being complicit in covering up things that happened in the 2020 election.”

“What I think has happened in the state, and I think it’s true across the country, is that the mere bureaucratic administrative dynamic [of elections] has become infected with partisanship,” said Michael Bitzer, a political scientist at Catawba College. 

For many skeptics, he says, no amount of evidence will change their minds. 

“It’s the process of chasing ghosts,” Bitzer said. “Until you can hold the white sheet of the ghost, it's always gonna be there. It's gonna be there in the shadows. At some point, you've just got to say, ‘Look, if you see ghosts, that’s your business. But the ghosts aren’t there.’”

A person holds a sticker after placing his vote at the Durham County Library North Regional in Durham, N.C. (Gerry Broome / AP)

A person holds a sticker after placing his vote at the Durham County Library North Regional in Durham, N.C. (Gerry Broome / AP)

***

The General Assembly has decided a statewide election just once, after the 2004 election. 

In the race for state superintendent of public instruction, Democrat June Atkinson led Republican Bill Fletcher by more than 8,500 votes. But Fletcher sued, arguing that the State Board of Elections had illegally accepted more than 11,000 provisional ballots, and the state Supreme Court stopped Atkinson from taking office. 

Atkinson told the state Supreme Court it lacked jurisdiction to hear the case, pointing to Article VI, Section 5 of the North Carolina Constitution: “A contested election for any [Council of State office, which includes the governor, lieutenant governor, superintendent, and seven other officials] shall be determined by joint ballot of both houses of the General Assembly in the manner prescribed by law.”

The General Assembly, then controlled by Democrats, should decide the matter, Atkinson said. 

But the court countered that there was no law to prescribe the manner in which the General Assembly would determine the contest. The legislature had put procedures in place in 1836 but repealed them in 1971 without a replacement. 

The court also ruled that the provisional ballots should be discarded, throwing the race into chaos.

Democrats in the legislature wasted little time establishing a process for settling contested Council of State elections. They also blocked the state board from certifying a race or state courts from interfering once a candidate filed a contest notice. And they permitted unsuccessful candidates to appeal directly to the General Assembly, bypassing county and state elections boards. 

On Aug. 23, 2005, the General Assembly named Atkinson superintendent, a position she held until her defeat in 2016. 

Robert Joyce, an elections law specialist at UNC-Chapel Hill’s School of Government, says letting candidates skip the county and state boards might have been an oversight. In 2020, he recommended requiring candidates to go to the state board before appealing to the legislature. That hasn’t happened. 

Orr points out that what worked for Democrats in 2005 now works to Republicans’ advantage because they control the legislature. “Which is probably why the Republicans have not changed the rules,” he said. 

He says he was surprised McCrory didn’t challenge the election in 2016. 

“He had the perfect political cover,” Orr said. “He didn't write the rules. The Republican legislature didn't write these rules.” 

The law allows unsuccessful candidates to contest the election either by challenging the winner’s eligibility or qualifications, or by alleging an error in the outcome. If lawmakers think the outcome is wrong, they can name the winner. 

A McCrory spokesman and officials from his 2016 campaign did not respond to requests for an interview. Senate leader Phil Berger’s office declined to comment “on a nearly six-year-old hypothetical that never came to fruition.” 

Within the South, Virginia, Kentucky, Tennessee, Arkansas, and Texas have similar laws allowing legislatures to intervene in contested elections. But North Carolina’s appears to be unique in prohibiting state courts from reviewing the General Assembly’s decision.

Had the North Carolina General Assembly overturned the 2016 election, the key question was whether federal courts would have weighed in. 

Election law expert Rick Hasen argued on his blog that they would. With “no plausible basis to claim that fraud infected the result,” he wrote, “it could well be both a Due Process and Equal Protection Clause violation for the North Carolina legislature on a partisan basis to consider a ‘contest’ and overturn the results.”

But Orr didn’t think they had the authority. “I don't know how you could argue that letting the legislature decide [a statewide election] under certain circumstances violates the federal Constitution,” he said. 

Gene Nichol, a constitutional law professor at the UNC-CH School of Law and frequent critic of the Republican legislature, says that even if federal courts would have stopped the General Assembly in 2016, they’ve taken a conservative turn since then.  

“Anyone who thinks that we’re going to be able to rely on the federal courts to secure American democracy is, I fear, whistling past the graveyard,” Nichol said.  

***

For most of North Carolina’s history, administering elections was—barring a scandal—a quotidian, low-key process. Today, it’s at the center of a partisan storm, a focal point of enmity and distrust. 

Arguably, the date that divides these eras is Dec. 16, 2016

That day, McCrory signed a bill splitting appointments to state and county election boards between Republicans and Democrats, instead of giving majorities to the governor’s party. It was part of what critics labeled a “legislative coup,” a series of lame-duck measures that stripped the incoming administration of key powers.

Roy Cooper argued that the law was unconstitutional. The state Supreme Court’s majority—all Democrats—agreed, setting in motion a legal battle that left the state board vacant for almost a year. 

Cooper regained control of the state board in early 2019. A few months later, his appointees voted 3-2 along party lines to oust elections director Kim Westbrook Strach, whose investigation into Bladen County’s 2018 absentee ballot scandal blocked Republican Mark Harris from going to Congress and forced a do-over election. 

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Kim Westbrook Strach, then-executive director of the State Board of Elections, unfurls early voting tabulations at a February 2019 hearing on voting irregularities in the 9th congressional district. (Travis Long / The News & Observer / AP)

Politics made Strach’s position untenable. She’s married to a prominent Republican elections lawyer. As an investigator before she became the agency’s director in 2013, Strach brought down several prominent Democrats for campaign finance violations, including Agriculture Commissioner Meg Scott Phipps, House Speaker Jim Black, and Gov. Mike Easley. 

Strach’s replacement, Karen Brinson Bell, a former Transylvania County elections director, was quickly greeted by a dispute over voting machine vendors, two special congressional elections, municipal elections, and the state’s Super Tuesday primary in March 2020—which fell on the day North Carolina announced its first COVID-19 case. 

Bell asked the General Assembly to loosen absentee voting rules in response to the pandemic. The legislature accepted some of her proposals, including reducing the number of witnesses required to sign an absentee ballot from two to one.  

But in August 2020, a nonprofit represented by Marc Elias, Cooper’s lawyer in the 2016 campaign, filed a lawsuit challenging the mail-ballot requirements. A month later, the state board settled, agreeing to extend the deadline to return absentee ballots to nine days after the election from three, establish supervised drop-off stations for absentee ballots at early voting locations and create a “cure process” for ballots missing voter information or a witness signature. 

Republicans were apoplectic. 

They saw a Democratic-majority board—represented by the office of the state’s Democratic attorney general—colluding with a Democratic Party lawyer to enact policies Republican lawmakers had rejected, says Sen. Warren Daniel, a Republican co-chair of the state Senate’s redistricting and elections committee. 

State Sen. Warren Daniel (Gerry Broome / AP Photo)

State Sen. Warren Daniel, a Republican from Burke County, in a file photo. (Gerry Broome / AP Photo)

“We’ve done a lot of good legislation to try to put guardrails around our elections that should make people confident in the results,” Daniel said. “We feel like it was really bad faith on their part.”

Legislative leaders asked a federal court to reject the settlement. Two weeks before the election, a federal judge struck down the cure process for witness signatures and accused the state board of misrepresenting him and misleading a state court. He allowed the rest of the agreement to stand. 

Bell says she doesn’t think she acted inappropriately. “I’m not a lawyer,” she told The Assembly. “What I knew is that the state board had the authority to settle lawsuits.”

In the end, the settlement affected about 10,000 ballots, a tiny fraction of the election’s 5.5 million votes—but enough to potentially affect the race for N.C. Supreme Court chief justice, which Republican Paul Newby won by 401 votes. 

Republicans viewed the state board’s actions in the context of what they believed to be an orchestrated Democratic strategy. 

“You had the systematic, coordinated efforts among many states,” said Michael Whatley, who chairs the North Carolina Republican Party. “All of them were trying to remove the signature and the witness requirements from absentee ballots. They were trying to add drop boxes. 

“That level of national partisan coordination coinciding with [Strach’s termination] here in North Carolina is why there is a lot of distrust of this board of elections across North Carolina among the Republican base.”

***

Last month, more than 500 days after losing the presidency by 7 million votes, Donald Trump told a cheering crowd in Selma, North Carolina, “Actually, we won in a landslide, OK?”

Trump’s rally—which featured Lt. Gov. Mark Robinson, Rep. Madison Cawthorn, and businessman Mike Lindell, a leading proponent of election-fraud conspiracies—was in support of the Senate campaign of Rep. Ted Budd, one of the 147 Republicans who objected to certifying Joe Biden’s victory. 

On stage, Trump mocked Budd’s leading rival, former Gov. McCrory—who, not coincidentally, criticized Trump’s attempt to remain in power after the 2020 election.

Trump’s false claims have become fundamental to his political movement. His allies are still pushing swing-state legislatures to “rescind” their electoral votes, The New York Times reported in April. 

Apostates have been ostracized or censured—including the retiring North Carolina Sen. Richard Burr, who voted to convict Trump in his second impeachment trial. Trump has endorsed primary challengers to Republicans incumbents in Georgia, Arizona, and Michigan who did not dispute the election results. 

“Virtually all of the people [running] in the Republican primary at least question the 2020 election,” said Orr, who left the Republican Party in 2021 after the state GOP censured Burr. “That’s just insane.”

Republicans across the country have pushed to change voting rules.

In 2021, 19 states limited early and absentee voting and made other amendments to election laws, changes critics say restrict ballot access.

Lawmakers in 13 states have filed bills this year that allow citizens to initiate election audits, criminalize election workers’ errors, or allow politicians to remove election officials. Florida recently established an election police force

Constrained by Cooper’s veto, North Carolina’s General Assembly hasn’t significantly altered state election laws, though legislative leaders inserted a budget provision requiring their approval before state agencies settle cases in which they’re involved.                                 

But last year, members of the legislature’s far-right Freedom Caucus demanded to inspect Durham County’s voting machines and threatened to put the General Assembly Police Department on the issue when the state board refused. More recently, the leader of the Surry County Republican Party threatened to have the county’s elections director fired for denying him access to voting machines, Reuters reported

Neither threat worked. But they illustrate the pressure many elections administrators are under. 

Reuters has documented more than 850 intimidating or threatening messages sent to elections officials in 16 states, not including North Carolina. And according to a survey from the Brennan Center for Justice, eight in 10 election workers say their colleagues face increased threats and intimidation, and one in five plans to quit before 2024. 

North Carolina’s elections board received more than twice as many public records requests in 2021 as it did in 2020, and is on track to receive almost twice as many in 2022 as in 2021, according to spokesman Patrick Gannon. 

The state board also fielded numerous labor-intensive inquiries from lawmakers—in particular, Rep. George Cleveland, a Republican from Onslow County, whose office on several occasions insisted that the state board respond to allegations from Gateway Pundit and other conspiracy sites, according to emails obtained by The Assembly

Gary Sims, Wake County’s elections director, says he’s received three times more requests than he did in the years before 2020. Often, they aren’t looking for useful information, but to “intentionally—intentionally sounds crazy—but to bog us down,” he said. 

Elections officials have also faced threats, and some offices were placed on alert. 

“I never thought I’d have a police officer stationed at my office,” Sims said. “I never thought I’d have sheriff’s deputies surrounding us on election night.” 

***

In 2020, North Carolina saw record turnout, no significant irregularities, and no COVID-19 clusters linked to election day. 

“It was one of the smoothest elections ever, in the middle of a pandemic,” Bell told The Assembly. “I mean, we reported election night results by 12:28 a.m. That is just unheard of.”

But that didn’t keep her out of Republicans’ sights. 

At a Senate redistricting and elections committee hearing in March 2021, Sen. Paul Newton excoriated Bell for “secretly negotiating with the national Democratic Party's top lawyer, Marc Elias, to reach a quote-unquote settlement.” 

The board’s frayed relationship with legislative Republicans could have real consequences. Next year, the agency will run out of federal funding for 30 cybersecurity and IT positions, about $2.8 million a year, according to records obtained by The Assembly. The state board plans to ask the General Assembly for help. 

Berger spokeswoman Lauren Horsch said Senate Republicans will “make a determination [about the state board’s request] during the budget process." 

Defending herself in the hearing, Bell cited a poll in which 68 percent of North Carolina voters said they were confident the election was fair. But the poll also found that nearly half of conservatives—and 61 percent of those who call themselves “very conservative”—lacked confidence in the election. 

Voters line up before daylight to cast their ballots at Cary Fire Station 9 in Cary, N.C., Tuesday, March 15, 2016. (AP Photo/Gerry Broome)

Voters line up before daylight to cast their ballots at Cary Fire Station 9 in Cary, N.C., Tuesday, March 15, 2016. (AP Photo/Gerry Broome)

Whatley, the state GOP chairman, says the proliferation of election complaints energized rank-and-file Republicans. In 2020, he says he had a team of 570 lawyers and more than 3,000 volunteers monitoring the election. 

“That was very important for us,” Whatley said, “because when you see what happened in Arizona and Georgia and Michigan and Pennsylvania and Wisconsin, we were able to thankfully say, ‘That did not happen here.’”

An Associated Press review of every potential case of voter fraud in the six battleground states Trump lost in 2020—Michigan, Wisconsin, Georgia, Arizona, Nevada, and Pennsylvania—found just 473 suspicious ballots, not nearly enough to affect the outcome. 

In North Carolina, a database compiled by the conservative Heritage Foundation lists 28 instances of fraud or irregularities between 2014 and 2019. The state board’s audit of the 2016 election found 508 suspected cases of illegal voting, out of 4.8 million votes; 441 of them were felon voters. 

Senate Minority Leader Dan Blue, a Raleigh Democrat, says Republicans are trying to fix a problem of their own invention. 

“[If] you tell [voters] that nothing is right, people start having doubt,” Blue said. “You sow the seed. It starts spreading, it starts blooming, it starts coming out of the ground. If you keep saying the same thing over a period of time, people are going to start believing it.”

But Strach, the former elections director, says Democrats shouldn’t dismiss fraud claims. “I think it is very dangerous for people to say that there is rampant voter fraud or that there is no voter fraud at all,” she said. “In my opinion, both assertions are wrong and lead to voters mistrusting our electoral process.”

***

Consider this scenario: 

Shortly before midnight on Nov. 5, 2024, Republican Lt. Gov. Mark Robinson trails Democratic Attorney General Josh Stein by about 2,000 votes in the governor’s race. 

Robinson—who called 2020 a “fraudulent election for an even more fraudulent president”—alleges widespread irregularities. Like McCrory in 2016, Robinson’s supporters file protests. Also like McCrory, those protests hit a brick wall at county elections boards. 

The county boards have Democratic majorities, as does the state board. Robinson argues that since he can’t get a fair shake, he’ll contest the election to the General Assembly, where Republicans have large majorities. 

Would a Republican legislature intervene? 

Nichol, the constitutional law professor, believes they would. They’ve already violated “the foundational principle of American elections: If you lose, you go back home and say, ‘I'll try again,’ instead of trying to burn down the governor's house,” he said. 

Whatley points out that some Democrats have continued to fight after losing elections. After the 2020 state Supreme Court election, Cheri Beasley filed 87 protests and alleged that thousands of votes were improperly disqualified. 

That’s to be expected, Whatley said. Politics is a combat sport.

“There’s going to be, in any close election, hand-to-hand fighting in and around the boards of elections, the counts, the canvasses, any of that stuff,” he said, adding, “I mean, I'm glad that the legislature has not taken any nuclear step.”

Robinson’s office declined to comment. 

Blue, the Democratic leader, sounded resigned when asked about the hypothetical. 

“The doubting will reverberate even more loudly if they start saying that [Robinson] won but somebody has stolen it from him,” Blue said. “And there are people who ought to know better—the elected officials who get elected in the system and can’t point to any misconduct in their races, but it’s the other guy’s race.”

Stacy Eggers IV, a Republican member of the state board of elections, says the elections system has weathered previous storms because officials were more committed to the process than their parties.  

“I don't think that we've reached a tipping point of, ‘All of my people are good and right and holy, and all the other people are terrible and awful and it would be a dumpster fire if they were to win,’” Eggers said. “If you start finding yourself thinking that the ends justify the means, you’re in the wrong place.”

But Eggers also recalled how a state board official closed training seminars when he was on Watauga County’s board of elections: “Whoever wins, let them win big.”

***

Jeffrey Billman reports on criminal justice and politics from Durham. He is the former editor-in-chief of INDY Week. Tips: jeffreybillman@protonmail.com.

Clarification: This article originally referred to drop-off stations authorized by the 2020 consent decree as “drop boxes,” implying that they were unsupervised. The drop-off stations were supervised.