North Carolina county boards of elections completed their official counts in the March 3 primary at their canvass meetings on March 13. In the 26th Senate District Republican primary, Rockingham Sheriff Sam Page finished with a 23-vote lead over North Carolina Senate leader Phil Berger (see the graphic of the official final count from the North Carolina State Board of Elections (SBE) below).
So, is the race over?
Hardly.
We have at least one more week of wrangling over the race, and maybe several more.
Phase 2: The recount(s)
Berger officially requested a recount on March 17, the last day he could do so.
Election officials in Rockingham and Guilford counties will retabulate all ballots cast in the district.
It is highly unlikely that a recount will shift enough votes to put Berger ahead. A statewide recount in the 2020 North Carolina Supreme Court Chief Justice contest resulted in a net change of just five votes, from Paul Newby winning by 406 to him winning by 401 over incumbent Cheri Beasley.
The Berger camp has also requested that the SBE order the counties to conduct a discretionary hand count of three overvoted and 217 undervoted ballots.
Overvotes here mean that the voter marked the ballot for both Berger and Page. Sometimes voters mark a ballot for one candidate, then cross out that name and fill in the bubble for the other candidate. The tabulator would count that as an overvote, but the voter’s intent would be clear to someone hand-counting the ballot. If the voter’s intent is not clear, the ballot is not counted.
(Note to voters. If that situation ever happens to you, you can request a new ballot. Officials will spoil your old ballot, and your new ballot will be counted.)
Source: The New Hampshire Bulletin
Undervotes mean they voted for neither candidate, leaving that race blank. It is possible that a voter marked a ballot for a candidate in a way the tabulator would not notice, such as a light check mark in the bubble or circling a candidate’s name. In most cases, however, an undervote means the voter was not interested in that particular race.
Phase 3: The protests
In the likely event that Page remains ahead after the recount or recounts, Berger’s next move will be to file a protest, claiming that something in the process was amiss and that the SBE should order a new election. That recently happened when the SBE ordered a new election for the 9th Congressional District after allegations of ballot harvesting marred the 2018 election.
Under state law (§ 163‑182.13.), the SBE can order a new election if at least four of the board’s five members are satisfied that one of the following happened:
- (1) Ineligible voters sufficient in number to change the outcome of the election were allowed to vote in the election, and it is not possible from examination of the official ballots to determine how those ineligible voters voted and to correct the totals.
- (2) Eligible voters sufficient in number to change the outcome of the election were improperly prevented from voting.
- (3) Other irregularities affected a sufficient number of votes to change the outcome of the election.
- (4) Irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness.
Berger’s team filed protests, with the first alleging that “at least eight Guilford County voters eligible to vote in the SD-26 race were given ballots that did not include the contest between Berger and Page.” The Berger camp also claims that two voters who did not have their voter files properly updated to reflect their address in the district should have their votes counted in the SD-26 race. A final protest requests that three Rockingham County unaffiliated voters who initially requested Democratic ballots but switched to Republican ballots should not have their votes counted. Unaffiliated voters can choose to vote in either party’s primary.
Those protests amount to only 13 ballots, well short of the 23 he needs to overturn the election. So, Berger’s team would have to convince the SBE board that those issues demonstrate that the entire process was so tainted as to cast doubt on its fairness. The closeness of the election would be a factor to consider.
Phil Berger has every right to request recounts and file protests to confirm that he truly lost a very close race, but his odds of prevailing are low, and he should be ready to make a graceful exit if he does not.
