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State administrator rejects protest from New Hanover County Board of Elections member

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New Hanover County Board of Elections.

Last month, the New Hanover County Board of Elections rejected a voter protest that claimed ‘irregularities’ in the 2022 primary election. However, one of the board members — who had been forced to recuse himself from the decision — appealed to the state, adding additional complaints.

The complaints concern the 2022 Democratic primary race for New Hanover County Board of Education, where the fourth place spot was ultimately decided by just two votes – close enough that what might otherwise be considered the minutiae of vote-tallying work became extremely consequential.

Incumbent candidate Nelson Beaulieu was initially behind challenger Jennah Bosch by three votes on election night; the subsequent canvass closed the gap to two votes, well within the margin for a recount. Beaulieu first requested a machine recount, which subtracted two votes from each candidate but didn’t change the outcome. He then requested a sample hand-to-eye recount, which changed one vote, enough that an extrapolation analysis found a countywide hand inspection could alter the election.

Related: Recount Redux – Incumbent Nelson Beaulieu says he'll request 'hand-to-eye' recount in school board race

Under state law, the countywide recount was performed and did, in fact, overturn the previous outcome, putting Beaulieu ahead of Bosch by two votes and into the general election.

The day after Beaulieu was declared the fourth-place nominee, a New Hanover County voter, Jennifer Ingulli, filed an election complaint.

The initial complaint

Jennifer Ingulli NHC BOE protest.jpg

Ingulli’s complaint provides the following in the section requiring factual basis and legal argument:

“Irregularities between elections + recounting was sufficient enough to flip the outcome twice. 

Number of votes tabulated + changed results make it unclear as to the actual winner. 

So many votes changed it’s not reasonable to conclude that either process is accurate or that the voters determined the outcome of this election.

Irregularities were to the extent that they taint the result of the entire race + cast doubt on its fairness. 

Printed procedures were not followed at recount.”

The New Hanover County Board of Elections considered Ingulli’s complaint on June 30.

Editor’s note: WHQR had planned to attend remotely, but, due to a technical error, the remote phone and internet participation options were not available. According to elections staff, because the proceedings were also open to the public, the meeting proceeded.

The initial dismissal, board member recused

According to the North Carolina State Board of Elections (NCSBE), the county’s board voted 4-0 to dismiss Ingulli’s protest, concluding it had been filed after the deadline and failed to provide any probable cause of an “outcome-determinative irregularity” (i.e. something that would flip even the very close Beaulieu-Bosch election) or a violation of election law.

While the decision is listed as unanimous it wasn’t without some contention, specifically over whether or not New Hanover County Board of Elections member Bruce Kemp would recuse himself.

Kemp, who is listed as a witness in Ingulli’s complaint, initially informed the county board he would recuse himself because he intended to give testimony, according to NCSBE. However, when he later learned that the preliminary consideration of Ingulli’s complaint would not involve evidence, he changed his mind.

However, the other board members voted 3-1 to recuse him, arguing he had demonstrated bias because he “advocated for positions and deliberated upon the matter outside the hearing” and had “communications regarding the protest with individuals assisting the protestor.” Kemp didn’t deny these claims but argued he held no bias on the merits of the complaint because of them.

Following the initial dismissal of Ingulli’s complaint, Kemp appealed to NCSBE on her behalf.

Kemp’s appeal, new complaints raised

According to NCSBE, Kemp added “a series of complaints that were not specifically raised in the original protest,” as listed below:

• alleged improper counting of an absentee ballot,
• a post-recount voter letter claiming that voters were temporarily locked out of a voting location on Election Day,
• different tabulators “presumably” counted undervotes differently between the recounts,
• the county board improperly refused to adjudicate by a full board vote overvotes and undervotes,
• the board adjudicated two allegedly identical stray marks on different ballots differently,
• the hand-to-eye recount resulted in a total of 16 vote changes among the five contestants in the contest among the 14,701 ballots recounted,
• vote changes from the recount were not announced contemporaneously per precinct but at the end of the recount,
• the recount was not broadcast by internet or conference call,
• one member who signed the abstract of the contest’s final results did not attend the recount and only 2 members who signed did, and
• the county board did not formally announce the declaration of the results of the recount to start the 24-hour protest clock.

NCSBE noted that, “Kemp also contends that the State Board’s administrative rules governing election protests exceed statutory authority.

Kemp offered a range of five potential solutions, ranging from having the full county elections board adjudicate the ballots in question to treating the result as a tie “since the margin was so close and the result flipped in the recount” — which would, under state law, require a second primary. Kemp also suggested a completely new primary election.

Locked doors at the Warwick Center

The ”post-recount letter” in Kemp’s appeal, referenced by NCSBE, is apparently one written by Brandon Riggan on June 30 — the day the county dismissed Ingulli’s complaint.

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Letter from Brandon Riggan regarding locked doors at the Warwick Center polling station.

Riggan described arriving at the polling location at the Warwick Center on UNCW campus at around 5:30 p.m. on May 17, Primary Election Day. Riggan stated that the doors he approached were locked and that he learned they had been locked since 5 p.m. About ten minutes later, they were unlocked by staff. Riggan expressed concern that some voters may have been turned away.

New Hanover County Elections Director Rae Hunter-Havens confirmed that some doors did automatically lock, but said voters still had access.

“On Election Day, the automatic locking doors were engaged briefly at UNCW Warwick Center, but no voters were turned away as the side door remained unlocked and precinct officials remained diligent monitoring the door. The issue was quickly resolved by UNCW staff members,” Hunter-Havens wrote in a June 27 email, adding that the county Board of Elections had not received a complaint about the incident.

The incident was apparently reported to the chief judge at the Warwick Center, but that did not translate into an election complaint.

NCSBE executive director weights timeliness, standing, and merit of initial complaint

According to a July 13 letter from NCSBE General Counsel Katelyn Love to Kemp, provided to WHQR by a spokesperson, the State Board itself did not hear Kemp’s appeal. Instead, under a section of the state’s administrative hearings code, the protest appeal was dismissed following a determination by NCSBE Executive Director Karen Brinson Bell.

Bell agreed with the New Hanover County Board of Elections' determination that Ingulli’s complaint was filed too late. The county appeared to have interpreted state law to extend the statutory deadline from two business days after the canvass to after the completion of the recount, a move Bell disagreed with, but even allowing for that Bell still found her complaint was not timely.

Bell declined to rule on standing, noting that it was an “open question.” As an unaffiliated voter — like a third of those in New Hanover County — Ingulli could legally vote in either the Republican or Democratic primary. Though she chose the former, Bell said it remained open to interpretation whether that impacted her standing.

Bell did not leave any such wiggle room on the merits, saying the county was correct in finding Ingulli’s complaint produced no probable cause.

NCSBE rules on Kemp’s appeal

As with the original complaint, Bell considered the timeliness, standing, and merits of Kemp’s appeal.

Bell found that Kemp’s appeal was indeed timely but questioned two aspects of his standing. She noted that Kemp, as a registered Republican, would not have standing as a voter to file a complaint concerning the Democratic primary. Bell speculated that, because of this, Kemp instead filed as a county board member who wanted to “stand up for [his] oath of office” and “truly execute [his] duties of the office.”

First, Bell noted that accepting this as standing would “grant appellate standing to any dissenting board member in any election protest, regardless of whether the candidates or voters have an interest in appealing.”

Second, and more to the point, Bell ruled that, since Kemp had been recused from the meeting, he “cannot claim his status as a board member grants him ‘significant interest’ to appeal the same protest he is recused from. He has no board member role in this protest.”

Lastly, Bell considered the merits of the complaint. In her determination letter, she did not address any of the specific claims made by Kemp, such as the procedural issues or the Warwick Center incident.

Bell did reiterate that Ingulli’s complaint “offers no explanation as to what the irregularities were or why they made any difference” to the outcome of the election.

Bell also addressed the general premise of the complaint that, because a series of recounts changed the vote tallies, there was an issue.

“Recounts often result in some small number of votes changing and, in very close contests such as this, can lead to the outcome of the election changing. If this weren’t the case, there would be no reason to ever permit a recount. The General Assembly has obviously concluded that recounts do serve a valid purpose of ascertaining the final results in an election, and the fact that a recount can change the initially tabulated results is a basic truth of elections,” Bell wrote.

Related: New Hanover Elections Director on this week's full 'hand-to-eye' recount

In closing, Bell wrote that New Hanover County’s Board of Elections “properly dismissed” Ingulli’s initial complaint, affirmed that Kemp lacked standing to appeal, and concluded that, even if the initial protest and appeal were “procedurally proper” they failed to allege an irregularity or legal violation that would have changed the election.

Below: NCSBE determination letter

Ben Schachtman is a journalist and editor with a focus on local government accountability. He began reporting for Port City Daily in the Wilmington area in 2016 and took over as managing editor there in 2018. He’s a graduate of Rutgers College and later received his MA from NYU and his PhD from SUNY-Stony Brook, both in English Literature. He loves spending time with his wife and playing rock'n'roll very loudly. You can reach him at BSchachtman@whqr.org and find him on Twitter @Ben_Schachtman.