New Hanover County, local elections board share differing views on third-party review

In the wake of Election Day last year, it became clear that a significant number of absentee ballots had not been counted as part of the tally on November 5.

Over the next two weeks, amid frustration voiced by county officials and candidates, elections officials explained that they had quietly instituted an earlier deadline for absentee ballots. This led to roughly 1,950 ballots that legally should have been counted on Election Day instead being set aside and added to the final count later prior to canvass, when vote totals are finalized. New Hanover County Board of Elections (NHCBOE) cited the pressure of recent changes to the law — and increased turnout — as the reason for that decision.

Related: The ballot-counting snafu (The Dive)

Later that month, County Manager Chris Coudriet authorized up to $30,000 for the Parker Poe law firm to investigate NHCBOE to review their policies to make sure they complied with best practices and the law — and to make recommendations for potential improvement.

At the time, Elections Director Rae Hunter-Havens told WHQR the Board of Elections had declined to participate, saying they needed more time to analyze the “scope and scale” of the planned review, and because they had been told by the North Carolina State Board of Elections’ director and general counsel that the audit greenlit by Coudriet was “beyond the scope of the county’s authority.” According to documents provided by the county, the Hunter-Havens and the elections board would decline several additional requests to participate, as well.

While NHCBOE does receive funding support from the county, it is an independent agency, with state-appointed board members. It has since retained its own legal counsel, something the county had suggested as the ballot-counting issue unfolded.

In lieu of participating, the local elections board has sent a series of ‘enhancement’ requests which address staffing and resource issues. These requests address issues that elections officials, including Board Chair Derrick Miller, had previously indicated played a role in the ballot-counting debacle.

The final report, delivered this week, confirms earlier claims by county officials that NHCBOE technically broke the law by failing to comply with state law requiring that all absentee ballots received by the cutoff on the evening of election day be counted that night.

The report said that NHCBOE had also used similar internal deadlines during two previous primary elections in March and May of 2024, knowing they conflicted with state law. Parker Poe referred to the use of the “incorrect deadline” as a “procedural mistake,” but also noted the votes were all eventually tabulated before the canvasses.

“Because the NHCBOE refused to participate in our review, we do not know the reasons for establishing the earlier deadlines, but we did not note anything in our review that indicated that those earlier deadlines were established because of staffing inadequacies,” the review noted. Parker Poe indicated some frustration that, without NHCBOE’s participation, it would be more difficult to make recommendations.

The report noted more than once that these apparent violations of elections law did not impact the integrity of the vote count.

“In the final analysis, we conclude that all of the valid votes were counted in New Hanover County and incorporated into the certified results. The procedural error in not counting the votes on election day did not impact the actual results,” according to the report.

The report also finds no grounds for criminal charges or election protests from candidates.

“Although the delay was technically a violation of state law, there will [be] no legal recourse against the NHCBOE. There are no criminal charges associated with this statute and the actions here certainly would not rise to that level. The only remedy available for a violation of the statute would be available to a participant in an election that was negatively impacted by the delay. Here, there is no candidate who could claim injury as all of the absentee ballots were reviewed and counted prior to the canvass. Simply put, the delay did not affect the outcome of any election,” the report’s analysis concluded.

Perhaps obviously, the report recommends the NHCBOE follow the letter of the law when it comes to absentee ballot counting and other election procedures. But it also lays out several other recommendations for improving communication, accountability, and transparency.

The report recommends that Assistant County Manager Tufanna Bradley serve as a more direct liaison between the county. The report found it was "crucial" that NHCBOE have “access to appropriate legal guidance.” It noted that NHCBOE’s engagement with attorney Mark Payne was a “positive step,” and lauded Payne’s experience. It also encouraged NHCBOE’s attorney to communicate directly with the county’s attorney to ensure compliance with state election laws.

It also recommended regular comprehensive audits to “detect issues such as equipment tempering or counting errors.” It’s worth noting the report indicates no evidence of those issues having been present.

The report encourages NHCBOE to engage in public consultation for rulemaking, noting “The North Carolina State Board of Elections has opened public comment periods on proposed permanent rules related to election observers, protests, and recounts. Participating in these consultations allows the county to align its procedures with state guidelines and incorporate public feedback, fostering greater transparency and trust.”

Lastly, the report recommended investing in staff training and resources — something NHCBOE has highlighted as important.

“NHCBOE should request specific training from [the state] on processes to ensure the timely processing of absentee ballots. The NHCBOE should also request information from other county boards of election on how they have addressed the absentee requirements. Established best practices that work in other jurisdictions should be adopted in New Hanover County as well,” the report noted.

The report adds one additional note of frustration on the way out, pointing to NHCBOE’s budget requests for the upcoming year.

“Those documents must speak for themselves as we were unable to have direct conversations with anyone at the NHCBOE to determine any priorities for these requests,” the report’s conclusion read.

Those requests, according to documents provided by the county, include roughly $20,000 for election official management software, $33,600 to boost compensation for election officials, $113,000 for a voting services manager, $62,000 for three part time administrative technicians, $27,000 to beef up a position dedicated to handling absentee voting, $92,000 for an elections registration coordinator, and $96,000 for an elections education and communication coordinator. (You can find more detailed information at the end of the Exhibits document attached at the end of this article.)

Elections Director Rae Hunter-Havens did not respond to a request for comment, but Board Chair Derrick Miller both answered questions about the Parker Poe report and shared his previous correspondence with the county. Miller said "I'm not saying there was no procedural error," but noted "the law is complicated and evolving and that even this report struggles to pin it down and accurately assess the error and challenges."

Miller said he felt the Parker Poe report was “flawed," noting that Parker Poe referred to an update to election law that hadn't actually taken place yet.

“They cite a law that was not in effect last November as though it were. (In this case, the law took effect on January 1.) I think this reinforces the point that I made in my recent letter to the County Commissioners: NC election law is complex and is increasing in complexity at a rapid pace. This is all the more reason we are grateful to have our own legal advice now, and it is additional evidence why we need to stick to the regular lines of communication and authority among the State Board, County Board, and County Government,” Miller wrote in an email.

The previous law required ballots received before 5 p.m. on the day before Election Day to be tabulated on election night (that is, ballots received up until close of business on Monday had to be counted on Tuesday). The new law, which was not in effect during the 2024 general election, required ballots received up until 7:30 p.m. on Election Day to be counted that night. That complicates Parker Poe's analysis somewhat, since the firm repeatedly cites the not-yet-active law in its analysis (although it notes in a footnote it wouldn't take effect until January 1 of this year).

It does seem like, setting aside confusion over the updated law, there were at least some ballots NHCBOE should have counted on Election Day under the older statute, although perhaps fewer than previous criticism identified.

But Mark Payne, NHCBOE's new attorney, said there were other issues, saying of the previously law "I don't think you could call it the model of clarity."

He said he would not characterize NHCBOE's actions as a violation of the law. First, he noted the previous law was very complicated (complicated enough that the Parker Poe memo mistated it). Payne also reiterated a point Miller had raised in the past, namely that due to resource issues NHCBOE had reached out to the state, and received guidance about how to handle absentee ballots. Based on their interpretation, Payne said, NHCBOE felt it was acting appropriately.

Miller also defended NHCBOE’s decision to not participate in the Parker Poe review.

“The main idea was simple: If somebody else's lawyers want to interrogate you, then you need the advice of your own lawyer. We needed time to get one. This was the very advice that the County Manager was reported to have given us, and the memo praises us for taking that action. We also had serious concerns that the audit potentially ran afoul of state law. We were worried that it, in effect though surely not in intention, inserted third parties into the respective statutory authorities of the State Board of Elections and the County Board, so we had to tread carefully. Again, we needed the advice of our own lawyer about how to proceed in such tricky circumstances,” Miller wrote.

In a letter sent early this month, Miller said he was taking the “unusual step” of addressing commissioners directly due to the unique and unprecedented challenges faced by election offices this year. He urged commissioners to consider several enhancements to the NHCBOE budget for the upcoming year.

“Over the last several years, the complexity and difficulty of conducting elections has greatly increased due to the combination of changes in election law and procedure, the make-up of the available work force for elections, and the growing volatile nature of elections themselves,” Miller wrote. He noted repeated changes and lawsuits including the makeup of state and county elections boards as an example.

“The legal and procedural requirements of every aspect of voting are significantly more involved and time-consuming than in prior elections. This growing complexity impacts every step of the process from voter registration, voting procedures, complying with voter ID requirements, and the counting and review of votes casts. Simultaneously, the time for performing these tasks has been shortened. The additional workload occasioned by these changes in law alone justifies the need for significant additional work force resources for the county board,” Miller wrote, adding that, “we can no longer rely on temporary workers to the same extent that we have in the past.”

Miller did emphatically agree with Parker Poe on at least one point.

"I do endorse what I see as their main finding and the most important point: the election in New Hanover County was free and fair, and every eligible vote was counted.  So credit where credit is due: they were absolutely correct on that point," Miller wrote in an email.

According to a spokesperson, the county was satisfied with the Parker Poe report, adding, “Parker Poe’s review was as complete as it could be without the involvement of the Board of Elections.”

Asked if there were any issues that remained unexplored because of the NHCBOE lack of involvement, the county said, “We aren’t aware of any open items.”

According to the county, a review of NHCBOE’s budget enhancements is underway.

“Staff analysis of county enhancements is still in process. Rae Hunter-Havens presented the Board of Elections requests to senior management one week ago, and they are under careful review,” according to a spokesperson.

The county said it had not yet received an invoice for Parker Poe’s work, so it remains unclear if they will spend up to the $30,000 limit.

Editor's note: This article has been updated for clarity.

Below: Parker Poe final report, exhibits including NHCBOE budget requests, and NHCBOE Chairman Derrick Miller's letter to county commissioners.