One of North Carolina’s top lawmakers wants election officials to take a closer look at ballots in his district’s GOP primary, which he is losing by a razor-thin margin. He’s also questioning the constitutionality of how elections officials are tallying ballots — the latest sign that the process could play out in court.
Senate leader Phil Berger — who holds immense power over which bills become law in the state — on Friday asked election officials for what’s known as a “hand-to-eye” recount in his GOP primary against Rockingham County Sheriff Sam Page, who leads Berger by 23 votes.
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Berger’s request comes a day after elections officials in the district — which includes Rockingham County and part of Guilford County — completed a machine recount of the race’s 26,000 votes. It yielded no change in Page’s lead.
Because the candidates are still separated by less than one percentage point, state law allows Berger to request what’s known as a partial hand-to-eye recount. Elections officials will randomly select 3% of the precincts in the district to recount the ballots from and examine those one-by-one, tallying the results by hand. If — and only if — those results return enough errors, a full recount can be conducted at Berger’s request.
Berger’s request for the hand recount redirected attention to a previous demand that officials conduct a hand recount of about 220 specific ballots that machines marked as having no candidate selection — or too many selections — in the Senate primary. Such votes are known as overvotes or undervotes. Sometimes that’s caused by voters accidentally filling in too many bubbles or just skipping that portion of a ballot.
Berger reasserted his desire for a hand recount of those ballots — or all 26,000 ballots in the race — because he thinks there might be enough to turn the result in his favor. Berger, in a letter to state officials on Friday, said he thinks the law allows the board to grant a full recount at any time.
“Overvotes and undervotes must be reviewed by hand to see if it is possible to determine voter intent before the votes can be rejected and not counted,” Jonathan Felts, a Berger spokesman, said in a statement Friday.
Berger’s initial request for special attention on those 220 ballots — made earlier this week in a letter to the North Carolina State Board of Elections — was rejected Wednesday by the bipartisan board, which opted to stick with rules articulated in state law.
"It is the mission of the State Board to ensure that every legal vote is counted, and a hand-to-eye recount of all ballots cast, including the undervotes and overvotes, is required to accomplish that mission," Berger wrote in his letter to the state board on Friday.
In addition to repeating his request Friday for that previously rejected plan, Berger also alleged that overvotes and undervotes are being adjudicated differently in the two counties in violation of equal protection clauses of state and U.S. constitutions.
“That's not fair to the voters,” Felts said. He noted that Rockingham County, which he lost by a wide margin, appears to have a less strict approach for adding votes to the count than Guilford County, which he won by a large margin. If there are additional votes to be found for Berger in this race, they’re more likely to be in Guilford than in Rockingham.
Page, who for weeks has called for Berger to concede, says Berger’s requests for a hand recount of the 220 ballots, as well as his request for a full recount, bypassing the partial recount step, are both illegal.
“Phil Berger is once again asking for special treatment and trying to change the rules after he lost,” Patrick Sebastian, a Page advisor, said in a statement on Friday. “North Carolina law is clear — and it applies to everyone. Senator Berger doesn’t get to rewrite it because he doesn’t like the outcome.”
Sebastian added: “Every ballot has already been counted — twice — and the result has not changed. Phil Berger lost this race.”
Berger’s campaign ultimately might not get to see a hand recount of each of those ballots; state law says he can only ask for one if the random sample finds enough errors to suggest that the result might change after more ballots are reexamined.
Jason Tyson, a spokesperson for the North Carolina State Board of Elections, reiterated the board’s decision on the request for a special review of the overcounts and undercounts. "The state board indicated they are going to follow the process set out by law and will continue to do so,” Tyson said Friday.
The board is scheduled to meet again on Wednesday. The board had not added discussion of Berger's request to the agenda as of late Friday.
Recounts have been part of the Berger campaign’s three-pronged approach to trying to change the election outcome.
In addition to requesting the recounts, Berger has filed paperwork challenging the ballots of 13 voters over allegations of wrong ballots and voter registration irregularities. County elections officials on Thursday voted to consider Berger’s protests: Guilford holding a hearing April 6 and Rockingham holding a hearing March 27.
The high stakes of the race have invited national attention to the district.
Berger became the Senate president pro tempore in 2011 when Republicans took control of the legislature for the first time in a century. He has stayed in the leadership position through several governors and House speakers — pushing through laws that cut taxes, slash regulations, limit abortions, loosen gun restrictions and more. Page, who was first elected sheriff in 1998, campaigned on the idea that Berger lost touch with the needs of his district.