State Elections Board Rejects Berger’s Request for Hand Recount

The North Carolina State Board of Elections on Wednesday rejected state Senate leader Phil Berger’s unusual request for a hand recount of 220 ballots in his GOP primary against Rockingham County Sheriff Sam Page, instead allowing a machine recount to move forward.

Page had a 23-vote lead after all ballots were initially counted, but those results aren’t final until the recount process is complete and the state certifies the outcome. Berger on Tuesday asked for a recount, which is allowed under state law because the result was so close. 

A loss by the Senate GOP leader, who is arguably the most powerful person in North Carolina’s government, would deal a major blow to the state’s Republican apparatus.

Guilford County election officials performed their machine recount on Wednesday, subtracting one vote from Page’s total and one from Berger’s. That left the margin unchanged. Rockingham County will hold a recount at 10 a.m. on Thursday, according to the county election director. 

Berger also requested a hand recount of 217 “undervotes,” or ballots where no vote was recorded in the legislative contest, and three “overvotes,” or ballots with votes recorded for both candidates in the state Senate primary.

State law and historical precedent calls for a machine recount first. After that, the trailing candidate has 24 hours to request a partial hand recount for a random sample of about 3% of primary day precincts, early voting sites, or both. If the partial hand recount produces results that indicate a different outcome in the race, a full hand recount would be triggered.

Berger’s campaign had argued the NCSBE had discretionary authority to order a hand recount now. But the board declined to take that step on Wednesday.

“We follow the law,” Chairman Francis De Luca told The Assembly after the vote. “If it’s in the statute, we follow it. But there was nothing in that request [from Berger] that went by statute.”

Patrick Sebastian, a spokesman for Page, called on Berger to concede. 

Jonathan Felts, an adviser to Berger, said the campaign is committed to counting all votes.

“Our request was very simple: save everyone the time and go ahead and determine voter intent where possible,” Felts said in a statement. “Today’s ruling leaves little recourse for every legal vote being counted other than to seek a hand recount. But no decision has yet been made on that front.”

Long Road Ahead

A machine recount appears unlikely to produce a result that allows Berger to overcome his 23-vote deficit. The 2024 state Supreme Court contest between Democratic Justice Allison Riggs and Republican Court of Appeals Judge Jefferson Griffin, which saw much higher turnout than this year’s Senate District 26 primary, went through multiple recounts. Riggs netted just six votes between Guilford and Rockingham counties in the machine recount. 

Sam Hayes, executive director of the State Board of Elections, said he hopes to have greater certainty on the outcome of the Berger-Page race by March 25, when the state is scheduled to certify all results. But he acknowledged the timeframe could be extended if either campaign files lawsuits or a full hand recount is warranted.

“Only at the end of the process will we see what it looks like if there is a need for a full hand-to-eye recount,” Hayes told reporters. “We’ve got to wait to see what happens, but we are going to follow the law.

Paul Cox, the former top attorney at the NCSBE, attended Wednesday’s meeting and said he began working with Page’s campaign last week in anticipation of potential legal developments. Alicia Jurney, a family law attorney in Cumberland County, is also working with Page. Republican election lawyer Phillip Thomas is advising Berger’s campaign.

Separately, Berger’s campaign has filed four election protests over 13 ballots, which Rockingham and Guilford county election officials must look into. One involves eight unnamed voters who told Berger’s campaign they received a ballot that didn’t include the Senate District 26 GOP primary. 

The Berger campaign also raised concerns over what they allege is voter intimidation from Page’s campaign, citing a text message Page’s campaign sent out after the election urging voters to reach out if Berger’s campaign “is pressuring you to sign something that isn’t true.” The text was related to Berger’s campaign asking voters if they had received the wrong ballot.

Hayes said the NCSBE is aware of the concerns both sides have raised: “That’s certainly within our purview to investigate. Those things are confidential, can’t really speak to that right now. But if we receive credible evidence of the fact there was voter intimidation, then certainly our division of election security and enforcement will take that up.”

Cash Dash

The recount saga comes after heavy outside spending in the race. The Assembly has already reported on more than $8.6 million spent through mid-February between Berger’s campaign and two outside groups bolstering his candidacy. Collectively, they had more than $2 million in available cash at that point, which was likely spent by the March 3 primary.

On Tuesday, the pro-Page Piedmont Accountability Coalition released a report showing it received donations from three people totaling $350,000. Through February 14, more than $277,000 of that had been spent on ads booked through Page spokesman Sebastian’s political consulting firm, Tar Heel Targeting. WUNC first reported on the donations, which the group reported well past the state’s February 24 deadline.

Sheila Mikhail, a Hillsborough resident and health care advocate, was the group’s biggest donor. She gave $225,000 and appeared in an ad in which she claimed Berger “blocked a Republican bill to pay for expanded cancer screenings.”

The State Board of Elections said the Piedmont Accountability Coalition could face a possible fine of $500 for submitting its report three weeks late, as prescribed by state law. Sebastian deferred to the group’s treasurer on why the report was late. 

The group’s treasurer, Apex-based accountant Melissa Van, said she received conflicting guidance on the reporting deadline and quickly addressed the issue after speaking with NCSBE staff.

Another pro-Page group, the Guilford-Rockingham Alliance, spent more than $442,000 through Sebastian’s firm on anti-Berger television ads and mailers without disclosing any of its donors. 

As an independent expenditure committee, it is required under state law to disclose contributions over $1,000 if the donation was made to further the group’s reported spending, according to the State Board of Elections. Sebastian referred a request for comment to an email belonging to the group, which didn’t immediately respond.