The number of provisional ballots that could determine the outcome of North Carolina’s gubernatorial election climbed to more than 50,000 Thursday and could rise further still.
Both sides are girding for an extended and expensive legal challenge or defense of the outcome.
With 10 counties yet to report provisional ballots, the final total could be as high as 60,000, a spokesman for the N.C. State Board of Elections said Thursday evening.
The Democratic candidate for governor, Attorney General Roy Cooper, leads Republican Gov. Pat McCrory by 4,979 votes among ballots counted so far from Tuesday’s general election.
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McCrory can call for a recount if the difference between them is fewer than 10,000 votes. While there remain tens of thousands of uncounted ballots, in the 2012 gubernatorial election more than half of provisional ballots were deemed not eligible to be counted. Those votes were closely split with an edge favoring the Democratic candidate, Walter Dalton, over McCrory.
All the counties in the state are in the process of culling the provisional ballots they have received. County staff members are researching each provisional ballot to determine if it can be counted.
County election boards are required to certify their counts on Nov. 18. Sometime before that meeting, they have to publicly go through the provisional ballots and accept or reject their staffs’ recommendations on each one.
In Wake County, the elections board will do that next Thursday. Dallas Woodhouse, executive director of the N.C. Republican Party, said the GOP would attend all 100 county meetings.
“The N.C. GOP is leading the efforts to monitor the canvassing of all ballots for all our candidates across the state,” Woodhouse said in an email.
Both Cooper’s and McCrory’s campaign teams have retained top-dollar, politically connected law firms to monitor the process every step of the way. McCrory’s campaign announced Thursday it has started a legal defense fund and is soliciting contributions.
Cooper’s campaign has retained two attorneys from Perkins Coie, a prominent firm that has represented Democratic politicians. Marc Elias was general counsel to Hillary Clinton’s presidential campaign and argued in court against North Carolina’s voter ID law. Kevin Hamilton and Elias have worked for U.S. Sen. Al Franken and other national candidates.
Also joining Cooper’s effort is Edwin Speas of Poyner Spruill. Speas served for 32 years as chief deputy to Cooper in the state Department of Justice before leaving the office in 2003.
Working for McCrory will be attorneys with Holtzman Vogel Josefiak, a Virginia firm that specializes in elections and has prominent national Republican clients. The law firm worked on McCrory’s successful bond issue earlier this year.
“We have assembled a team of the very best legal minds and election lawyers in the country to ensure that the results of this election are accurate and that every legal vote is properly counted,” Jason Torchinsky, chief counsel for the McCrory fund, said in a statement.
Torchinsky repeated the campaign’s focus on Durham County, where about 90,000 votes came in late on Election Day. Durham elections officials have said the delay made no difference to the outcome, but a McCrory strategist on Wednesday said there were “grave concerns” about “irregularities” there.
Torchinsky said the McCrory legal defense fund can accept unlimited contributions from individuals, and corporations and political action committees can contribute up to $4,000 each.
Cooper’s team, meanwhile, on Thursday sent out a news release identifying Cooper as the governor-elect and pointing out that McCrory has refused to concede. Trey Nix, Cooper’s campaign manager, said they expect the final ballot count will confirm Tuesday’s victory.
“We expect Gov. McCrory to accept the will of voters when the State Board of Elections, chaired by his appointees, certifies these results,” Nix said. “In the meantime, the Cooper campaign will work to ensure that every vote is properly counted and to protect the integrity of our democratic process.”
The State Board of Elections has advised county boards that they must keep all the ballots, poll books and tapes “properly secured” and document a chain of custody. County staffers do not see the provisional ballots, which are sealed inside envelopes with verifying information about the voter on the outside.
Staff uses that information to recommend whether they should be counted, relying on a variety of public and internal records to verify them. The most common reason for rejecting provisional ballots is because there is no record of the person being registered to vote.
Counties vary in how they secure ballots. In Wake County, they are kept in a warehouse in Raleigh equipped with 24-hour surveillance, security staff, internal controls and a livestream video inside.