Felix Soto looked forward to voting in his first general election last year and made plans to cast a ballot from Costa Rica while on a UNC fellowship.
He decided to mail his ballot back to the Guilford County Board of Elections rather than submit it electronically.
He’d heard about heated conservative opposition to everything other than in-person voting, and wanted to avoid having his ballot being caught up in any conflicts. “This online portal seems like something they wouldn’t like,” he said.
Soto mailed a copy of his passport photo page with his ballot.
There was a problem with the first ballot, Soto said in an interview, so he had to submit another. He didn’t send the passport copy a second time, he said, because the elections office said it wasn’t necessary.
Soto is now on a list with more than 5,500 military and overseas absentee voters whose choices to fill a North Carolina Supreme Court seat may be erased. The Republican candidate for the seat, Appeals Court Judge Jefferson Griffin, wants to throw out those votes and more than 60,000 others he says were illegally cast.
“I wanted to make doubly sure that my ballot wasn’t contested,” Soto said. “Then to still have it be contested is like a slap in the face. I tried so hard, and still…”
Griffin believes rejecting these ballots will lift him to victory over incumbent Democratic Justice Allison Riggs, who leads by 734 votes.
After the Board of Elections dismissed his protest, Griffin asked the state Supreme Court to order the votes thrown out. Of the more than 60,000 he’s contesting, his lawyers suggested the justices look first to tossing military and civilian overseas absentee votes because photo ID is not included with those ballots. He has challenged overseas and military ballots only from four of the state’s most Democratic counties.
The Supreme Court told Griffin he had to take the normal route for an appeal and start at Wake Superior Court. A court hearing on Griffin’s lawsuit is scheduled to begin Friday.
The state Board of Elections’ rules do not require military voters and citizens living overseas to submit photo ID with their absentee ballots.
Of the multiple protests Griffin brought to the Board of Elections in December, the only protest the bipartisan board voted unanimously to dismiss was his protest over the issue of photo ID for military and overseas voters.
Griffin’s lawyers said in a recent brief filed in Wake County Superior Court that the state Board of Elections was wrong to exempt military and overseas voters from the photo ID requirement.
“In the Supreme Court contest, 5,509 such ballots were unlawfully cast,” the brief says. “Judge Griffin anticipates that, if these unlawful ballots are excluded, he will win the election.”
Most absentee and in-person voters must show an acceptable photo ID. If they don’t have one, they must fill out a form saying why.
The state Republican Party, which is supporting Griffin, summed up its argument in a Facebook post this week.
“We The People put Photo ID in the North Carolina Constitution. The General Assembly put Photo ID into law. No ID? No Vote. It’s That Simple.”
North Carolina’s state solicitor general, in a court brief, refuted the argument that the board was wrong to exempt absentee military and overseas voters. Requiring IDs probably would have violated the U.S. Constitution, the brief says.
Absentee voting by service members and citizens overseas is governed by a 2011 state law the legislature passed unanimously, the brief said. That law allows those voters to use special procedures to register to vote, request a ballot, and submit a ballot, the brief said. These procedures don’t require voters to submit ID with their absentee ballots.
The state law mirrors the federal Uniformed and Overseas Citizens Absentee Voting Act, or UOCAVA.
“The Board concluded that imposing an identification requirement on voters covered by UOCAVA that is inconsistent with federal law would likely violate the Supremacy Clause of the U.S. Constitution,” the brief said.
Voters said it’s wrong to claim they should have compiled with a rule that didn’t exist.
“I think it’s pretty obvious that you can’t change the rules after the election,” said Aidan Hunt, who voted while traveling in Asia.
“You can’t tell people explicitly there’s no need to submit it, then penalize people for not submitting it,” he said in an interview this week.
Hunt used the electronic portal to vote. He doesn’t remember if there was even a way to send a copy of an ID.
“As best as I can recall, there’s no function to upload random stuff going through that portal. There wasn’t any place designated for an ID,” he said. “It’s not like an email message where you can just put whatever in there.”
Hunt submitted his own brief when Griffin filed his protests with the Board of Elections.
“The State Board of Elections explicitly represented to me at the time of submitting my Federal Post Card Application, at the time of returning my UOCAVA Ballot, and at all times through the election and canvass that submission of a photo ID or photocopy thereof was NOT required for UOCAVA voters. Upon information and belief, the same is true for all affected Party Voters,” he wrote.
He said in the interview that he knew the Board of Elections was going to hear from a lot of lawyers, and he wanted them to hear from a voter.
“I just wanted to make a point that citizens are reading this and are watching what the government’s doing and they will be held accountable,” Hunt said. “I wanted a citizen’s name on the record.”
He told them: “Let us make no mistake that discarding the ballots of citizens eligible to vote is the death penalty for democracy. Unlike a protest of disqualified voters, this protest aims to destroy the voices of North Carolinians unequivocally eligible to vote by law due to an alleged requirement that could not have been known to them at the time of voting.”
In the months since Griffin filed his protests, some who voted in person and whose ballots Griffin is challenging said they never received the postcards the state GOP was required to send notifying them of the potential challenges. The same is true of overseas voters.
Soto said he didn’t know until his mother plugged his name into an online search tool.
Kathryn Spann, who moved to Spain last year from Durham, didn’t know her vote was being challenged until a reporter contacted her this week. Spann is a former lawyer turned cheesemaker who co-owned Prodigal Farm in Durham.
In an interview, Spann said she’s been following Griffin’s case, but never received an NC GOP postcard. Griffin is challenging her husband’s ballot too.
Spann’s sister is living in the Durham house where Spann lived before moving to Spain. No postcard arrived at that address. And she never received any notice in Spain.
“The idea that after the fact and selectively, not equally across the state, a sitting judge would choose to attack the established electoral system is repugnant,” she said.
“Had I received basic and timely notice, I feel that I could have plugged into the attorneys filing the amicus brief or working with Democrats Abroad.”
In 2008, Spann ran in a down-ballot race for Durham County Soil and Water District Supervisor.
“I’ve always been, perhaps not surprisingly, focused on doing research on all races, not just the top of the ticket,” she said.
In October, she wrote on Facebook about her experience submitting an online ballot. She shared a link for overseas voter registration and encouraged people to vote the entire ballot.
“Our democracy depends on all of us informing ourselves on races up and down the ballot,” she wrote.
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