Your intrepid correspondent and glutton for punishment attended the North Carolina State Board of Elections meeting in Raleigh on December 3, 2016 to document the unfolding drama in our great state.
→ Note: I multitasked, taking notes while simultaneously shaking my head in disbelief and (mostly) refraining from shouting objections from the gallery.
The Board began with reviewing an election protest filed in Bladen County, In re Protest of Election by Leslie McCrae Dowless Jr (the “Protest”). The primary allegation by McCrory’s folks in the Protest is that the name of the write-in candidate for the Soil and Water Conservation District Supervisor for Bladen County (who lost to Mr. Dowless) on some of the absentee ballots mailed in by the Bladen County Improvement Association look like the same person could have written them.
→ Note: You can, and should, read all the materials in the Board Book. Also, Democracy NC simulcast the whole thing. You should watch it – because this whole thing is so unbelievable you will probably think I made it up.
Appearing in the matter:
- Roger Knight and Mr. Branch, attorneys for McCrory (and apparently Mr. Dowless, the Soil and Water Conservation District Supervisor for Bladen County)
- Prof. Joyner, Attorney for the Bladen County Improvement Association
- Kevin Hamilton, Attorney for Cooper & Democratic Party
There was a motion for a probable cause determination of sufficient evidence to support the Protest. Rhonda Amoroso said she thinks that there is enough evidence for the Protest about the alleged “Absentee Ballot Mill” to move forward and she wants to move forward with the Protest (without a probable cause determination first).
Josh Malcolm (member of SBOE) says he wants to hear directly Mr. Dowless, under oath.
The attorney for Bladen Co. Improvement Association, Prof. Joyner, made an objection to the Protest because there is not sufficient evidence stated in the Protest to support probable cause (basically, even if everything in the Protest is true, it should still be dismissed because it fails to state the case). He notes that he wants to cross-examine Mr. Dowless, under whose name the Protest was filed.
Roger Knight, McCrory’s lawyer, then argues that all of the votes submitted by absentee ballot by the Bladen County Improvement Association should be discounted, citing the Protest by Mr. Dowless that alleges that the Bladen Co. Improvement Association (who supported another candidate) was paying people for “GOTV” which stands for “get out the vote”.
→Note: Knight describes “GOTV” as if it is menacing shadowy plot. Apparently, McCrory’s attorney thinks encouraging people to vote is the same thing as a criminal conspiracy.
Knight says that there were schemes that incentivized getting absentee ballots, and he had heard of voters being told by someone that they would get paid for absentee ballots.
→Note: make a note of this, look up “irony” and keep reading.
Knight says that they don’t know the voters intent, so the SBOE should discount the entire votes of these absentee ballots. He says that the ballot on its face is fraudulent because the handwriting on the write-in is the same (although we will see that is NOT what the handwriting expert says in her opinion).
Mr. Joyner then said he was “stunned by creative story telling”. He says that GOTV is not a scheme – NC law sanctions helping people vote. NC allows for absentee ballots – Joyner notes that there is a whole section of the NC statutes which allows for absentee ballots.
Rhonda, suddenly interested in the actual law, challenges him as to absentee ballots being legal, asking him, “What statute are you referring to?”
→ Note: Of course, absentee voting is totally there in the voting laws – See § 163-302.
Joyner goes on to explain that voters are allowed to have someone assist them, and that it does NOT make it illegal.
Board members keep interrupting Joyner as he explains that the absentee ballots comply with statute. He notes there is no evidence that the voter did not sign the absentee ballot, no evidence of “acting in concert” with respect to any fraud (that is no evidence of conspiracy), and he notes that you have to write the name of witness but no law that requires that a person must sign as a witness.
Joyner explains that for there to be a vote for a write-in candidate, you have to BOTH 1) write in a name, and 2) fill in the circle beside the name. He says that even if someone wrote in the name of the write-in candidate on multiple ballots that does not constitute voting for them. He says there is no evidence that people were being paid for getting absentee ballots.
→ Note: Well, no evidence that people were paid by the Bladen Improvement Association – read affidavits in the Board Book regarding Dowless.
Chairman Whitney interrupts to say there were payments marked as “GOTV” – he seems to be implying that getting out the vote is a crime as opposed to a part of every campaign and voter education project in the country.
Joyner again notes that you are allowed assistance under the law. It is not improper.
Joyner informs the BOE that if there was evidence that someone did commit fraud with respect to an absentee ballot, there is a procedure under § 163-226.3 where the Board of Elections, upon receipt of a sworn affidavit from any qualified voter, attesting to first-person knowledge of such fraud, shall transmit that affidavit to the appropriate district attorney, who shall investigate and prosecute any person violating the law. Joyner notes this has not been done.
→Note: Interestingly, later in the meeting Rhonda complains about “fraud” not being sent to district attorneys. Despite her new-found interest in the law, she missed the part that the Board should be sending any actual evidence of fraud to DAs.
Mr. Hehl, a member of the Bladen BOE then is called to testify. He speaks about different things he heard about, and Joyner makes a hearsay objection.
McCrory’s attorneys quickly say that rules of civil procedure do not apply to this hearing, and they think hearsay is just fine.
→ Note: your dutiful correspondent often fell asleep during her Administrative Law class, but does remember that administrative boards are part of the Executive Branch and cannot be “arbitrary, capricious, or abuse authority”. And are quasi -judicial or quasi-legislative . . and “quasi” is a weird word, right?
The Board says hearsay is fine, and Judge Baker(R) says that what Hehl meant was to explain his state of mind (even though that is not what Hehl said, so now Judge is testifying).
→Note: “State of Mind” is one of the exceptions to the rule against hearsay.
Hehl speaks more about things he heard 2nd and 3rd hand and about what happened at a meeting that he did not attend. Joyner renews objection to hearsay. Board decides hearsay is fine. Rhonda is going to reserve judgment as to whether or not she believes hearsay testimony is “true”.
Mr. Hehl speaks about how he became concerned that there may be an issue, and adds “I am not implying GOTV”.
→Note: Apparently, now McCrory’s attorneys have convinced Hehl that “getting out the vote” is a crime.
Hehl says he noticed similarity of handwriting and that Franklin Graham’s name appeared a lot, so he notified the state BOE.
Hehl says after they had looked at the outside of the absentee ballots and determined from outside they were good/ valid, the ballots were put into an “out stack.” He says that was in the “out stack” that he noticed handwriting similarity. Hehl confirmed that there is no evidence that anyone involved with either side of governor’s race had anything to do with writing in a name on Water/ Soil write –in.
Then Charlotte Ware, the expert witness on handwriting, testified. She said she was a federal employee who did this on the side and was being paid $1100 to testify at the hearing, and had been paid $160/ hour for the review which was 15 hours.
→Note: see her report in SBOE materials.
She said she reviewed the ballots (which were photocopies) and put them in stacks based on similarities. She only looked at the name “Franklin Graham” where it was written in – she did not look at signatures or anything else.
She said there were 7 different groups of ballots with indications of similarities – different numbers in each, and some “indications within each group that it was written by same person.” Putting the 7 groups together totals up to 167 ballots – NOT hundreds (as has been alleged and repeated in the press).
Ms. Ware said there were not conclusive indications; just indications there were 7 groups of ballots in which it was “possible” that in each of the groupings the name “MAY” have been written by one person.
Ms. Ware did not have writing from a named individual to examine in connection to this matter. She said that there were indications of similarities, but could not offer a scale of how similar these indications were.
→ Note: The report from this handwriting expert has been widely cited as definitive evidence of a scheme of fraud in Bladen County by the NC GOP, however she said that there were only indications of similarity that indicated seven different groups that may have been written by the same person. There were not 167 ballots that looked to be written by the same person as has been widely reported.
Then Mr. Malcolm (member of the SBOE) said he wanted to hear from he protester in Bladen County, Mr. Dowless, under oath. He told Mr. Knight he would issue a subpoena if need be.
Mr. Knight immediately got panicky and asked if Dowless would be offered protection from prosecution under § 163-277. Then Mr. Knight said Dowless would not waive his fifth amendment rights to avoid self-incrimination.
Malcolm asked Mr. Knight if he represented Dowless, and Knight answered, “in this matter here, yes”.
After a short break, Mr. Dowless (the guy whose name this entire matter was brought under) was called. He was the winner of the election for Soil and Water Conservation District Supervisor for Bladen County.
Mr. Dowless said, “I am not saying there is any wrongdoing” but there were 3700 write-ins for another candidate “so I just wanted it to be investigated”.
Dowless went on: “On election night I was getting results and I got with the Bladen Co. Republican Chairman. I said, ‘that is a lot of write-ins’. He said, ‘I will make a call’. Next day – Steve from McCrory campaign called me – I spoke to him on the phone.”
Then Mr. Branch, one of the McCrory lawyers, objected to Dowless testifying about talking to “Steve from the McCrory campaign”.
Mr. Branch says that “Steve from the McCrory campaign” is Mr. Roberts, who is an attorney and represents Mr. Dowless and that Dowless can’t testify because of attorney-client privilege.
Interestingly, Dowless did not know the last name of this attorney who called him and supposedly represents him, along with Knight and Branch. Also of note was how McCrory’s attorneys told Dowless NOT to talk about that phone call. They seemed very concerned.
→Note: Apparently everything I learned about attorney-client privilege in law school was a lie. I did not know I could go around unilaterally applying it to people I had never met before by calling them on the phone – and that it was to protect attorneys, not clients.
Dowless was asked, “Do you have any first hand knowledge that someone in Bladen county wrote the name ‘Franklin Graham’ on a bunch of ballots?” Dowless said, “No”. Dowless said he knew the information because the attorneys gave him that information – and it was in the paper.
Malcolm asked Dowless, “ How did you see the reports [referenced in the Protest]? Did someone give you the report?”
Dowless says he is “taking the 5th” – he doesn’t want to incriminate himself. He won’t say who gave him copies of disclosure reports.
Dowless says he did not write the Protest – the attorney wrote it up and signed his name to it. He is asked if he knows how to retrieve finance reports. He seems confused. He is asked about the affidavits about Caitlyn Croom and her friend Matthew (see Board Book for more on these two)
Caitlyn Croom and her friend Matthew worked for Mr. Dowless.
→ NOTE: There is a sworn affidavit in the Board Book that Caitlyn and her friend came to a woman’s house and told her that they would get paid for absentee ballots, so she filled out the application but never received an absentee ballot. When she went to vote, she was told she had already voted. There is also another statement and copies of absentee ballots signed by Caitlyn Croom and Mathew where someone named “Josh” had gotten a woman to vote by absentee ballot so he could get paid for them, and he was supposed to return them but did not. It is not clear if Matthew and Josh are the same person.
Dowless says he did “GOTV” but there was “no GOTV enterprise” because there was no “enterprise”. He says he paid Caitlyn Croom for GOTV to get absentee request forms, and to “ask did they need assistance”.
Dowless said he wrote “CC” or the initials of his people who got the absentee ballots in the corner of the absentee request forms, so if there were a problem “they” would know who to go to.
There was some question about a political action committee called “Patriots for Progress” of which Dowless had been president. He said he turned it over to a woman named Tabatha, but then she was killed. UPDATED: I have been informed it was not Tabitha that was killed, but rather a woman named Crystal who was accidentally shot while watching a movie with a friend. We don’t know what movie she was watching.
→Note: I . . . really don’t even know what that bit had to do with the election.
Dowless was asked more about the absentee forms, and he said he would get the absentee request forms himself and put initials in the corner.
Dowless was asked about a lot of the details in the protest filed in his name, and he just said it was prepared by the attorney and the attorney signed it.
The McCrory attorneys then started basically testifying for Dowless, and explained what he must have meant when he said that.
When asked different times and in different ways if he had first hand knowledge of the facts and details in the protest filed under his name, Mr. Dowless could not come up with any of it that he himself had first-hand knowledge of it.
The McCrory attorneys said that Dowless should not be expected to know what was in the Protest. The Protest he supposedly filed.
Dowless testified that in 2012, the Bladen County Association had endorsed him for Soil and Water Conservation District Supervisor in 2012, but had not in 2016.
Chairman Whitney asked Dowless if Caitlyn and Matthew were involved, as in where they boyfriend and girlfriend, but did not say why that would matter. Dowless shrugged and held his hands to the side and said he just wasn’t sure what to say about that.
Dowless said saw Matthew after Matthew spoke with SBOE investigators. He said he met Matthew and Caitlyn outside the parking lot of a Burger King and Caitlyn and Matthew came and got in his van Matthew had told him he was scared.
Attorney Joyner then asked for the Protest to be dismissed because they did not present any evidence – no evidence of voter fraud – so with no evidence clearly did not meet the burden of establishing “substantial evidence.”
In his closing, Knight said that the evidence of wrongdoing was that the expert had said that the signatures were by the same person.
→ Note: I guess he had not been paying attention because the expert witness had testified she did NOT evaluate signatures but rather evaluated the name written in on the right in line for water and soil conservation officer.
Knight wanted all the ballots and all the votes excluded and questioned what sort of due process should really be needed.
In his closing statement, Joyner said there was no indication of voter fraud; at best there was evidence of assistance on absentee ballot.
Joyner said in addition to there being no evidence, “fraud is intentional conduct with the intent to deceive. Even with evidence of similar handwriting, no individual has even been named or series of individuals, and there has been no show at all of evidence of an intent by any person to deceive.”
Hamilton (the attorney for Cooper’s campaign) made a statement going over all the reasons that, according to the law, the protest should not go forward including the lack of evidence, specifically the lack of “substantial evidence.” There was no witness that could testify that any voter had committed any kind of fraud in this case.
Hamilton noted that he handwriting expert’s “opinion” would not have been admissible in any courtroom, because there were too many qualifiers to be considered evidence. Also, the name that was alleged to have been written by the same person on multiple right in lines did not win the election so there was no way that it could change the outcome to dismiss those votes. Dowless had won the election so there was no reason to think that discounting those votes would change the outcome of that election.
Malcolm noted that there was no evidence of a voter committing fraud and the protest.
Rhonda Amoroso said that there was “obviously a problem here because we keep getting called to these meetings”. So she would like to see the ballots herself. Rhonda said that “voter fraud is not being taken by district attorneys very seriously” and she knew that because “fraud was not being referred to district attorneys”.
→Note: If there HAD been any evidence of fraud, she and the SBOE would have been required to report in to law enforcement. SO, she would have known if there had been any actual evidence of fraud because she would have reported it to law enforcement. See § 163-22 (d). So why does she keep repeating gossip of “voter fraud” while under the guise of her official role on the NC SBOE?
The Protest was dismissed, 3-2. Whitney and Amoroso voted NOT to dismiss the Protest. Amoroso said she wanted to see the ballots herself.
Mr. Malcolm made a motion that all of the evidence about this matter in Bladen County be sent to the US Attorney in the Federal District of Eastern North Carolina. The motion passed.
I guess it is a good thing that Dowless apparently has so many lawyers.
For some snarksome coverage of this meeting, see live blog from Insight-us.org
Notes from earlier State Board of Elections meeting are here.
UPDATE: Official transcript is now available here: https://dl.ncsbe.gov.s3.amazonaws.com/State_Board_Meeting_Docs/2016-12-03/Transcript_of_Hearing.pdf
Note: An earlier version was originally published in Everyone’s North Carolina Blog.