Senate Bill 749 restructures the state boards of elections so that tied votes are inevitable and the Republican-controlled legislature has the power to break them.
The North Carolina House passed a bill on Tuesday that replaces the state’s efficient, bipartisan and award-winning elections infrastructure with a system likely to create deadlock over important decisions and give legislators ultimate power over the voting process.
Senate Bill 749, which passed the Senate this summer, passed the House by a vote of 60 to 41, all on party lines. Because there were some amendments, the bill now goes back to the Senate.
Lots of attention has been paid to another bill, SB 747, a sprawling piece of legislation that makes it harder to vote by mail and gives partisan poll observers freer reign at voting sites. But SB 749 could cause even more disruption.
For one, the bill blows up the existing state and county board of elections, the groups responsible for carrying out, monitoring and protecting North Carolina’s elections.
Currently, the state board has five members, two Republicans, two Democrats, and one member appointed by the governor – in this case, Cooper.
SB 749 would create an eight-member state board, evenly split among Democrats and Republicans, all of whom are chosen by the legislature.
Republicans say this makes things fair and eliminates “partisan advantage in elections.”
It will likely do the opposite. Five members means there’s a tie breaker and decisions get made. Eight members means no tie breaker and problems go unresolved.
Who gets to make the decision on major issues if the board can’t agree? The legislature, currently under a Republican Supermajority.
‘We’re Fooling with the Third Rail’
The bill reorganizes the county boards of election in a similar way, moving five-member boards to four members evenly split between the two parties.
During the vote on Tuesday, the House made a couple of amendments, including one offered by Rep. Carolyn Logan, a Democrat, to bar lobbyists from serving on county boards of elections. But the House voted down several other Democratic amendments that would have addressed some of the larger concerns, including one that would ensure each county had adequate early voting sites if there was a deadlock, and one that would clarify that a deadlocked board still had to certify the results of an election unless there was actual evidence of fraud.
Because the House changed the bill a bit from the Senate version, it will have to go back there for another vote before heading to the desk of Gov. Roy Cooper, a Democrat.
During the debate over the bill, Rep. Abe Jones compared voting to the third rail of a subway system: Messing with it can be dangerous.
Elections were so free and fair in 2020, he pointed out, that Donald Trump lost more than 100 lawsuits complaining of fraud.
Jones said he didn’t understand the sudden rush to change an elections system that has worked pretty well so far.
“What’s the hurry?,” he said. “We’re fooling with the third rail. Why?”
Cooper vetoed SB 747 and is likely to veto this bill, too, but Republicans have the votes to override the governor’s veto actions.
“SB 749 is an unnecessary and misleading bill that is opposed by many North Carolinians, including the last five governors of both parties who have opposed similar, even less-far reaching legislation,” Ann Webb, policy director at Common Cause NC, said at a news conference this month.
“Instead of the current clear path to making a decision,” she said, “deadlock is inevitable.”
A Threat to Easy Early Voting
While the state and county boards make all sorts of important decisions that would be severely disrupted by gridlock, the two biggest consequences could have to do with early voting and the certification of the elections themselves.
Early voting is the most popular voting method in the state. More than 3.6 million people cast their ballots during the early voting period in 2020, and more than 2 million people did so in 2022. That was more than the number of voters who voted on Election Day in either year.
Republicans, who have been trying to limit early voting for years, have created a backdoor way to restrict it in SB 749.
County boards decide the number of early voting sites. Under SB 749, if a given county can’t agree on the number, it would default to one. One site may be fine in smaller counties, but early voting is the most widely used form of voting in North Carolina, and one site would mean chaos in larger counties like Wake and Mecklenburg.
“I just want you to imagine Mecklenburg County for example,” Webb said in September. “Mecklenburg County had more than 350,000 people use early voting in the 2020 elections. They have one county board of elections office with by my estimate less than 50 parking spots. How would that work? What would that look like in an election like the 2024 presidential election? It would be a disaster.”
The state board is also in charge of certifying the final election results. A deadlock here could create a constitutional crisis with the legislature having the final word.
“Imagine if there was a partisan dispute about the certification of our election statewide and the only way to resolve it was to send it to the legislature?” Webb said.
“Would that feel like Democracy at work in North Carolina?”
To her point, under the bill, legislators who trail by a few hundred votes in their own reelection race could be the deciding vote to invalidate the count in order to stay in power.
A Disruption Close to the 2024 Election
The bill’s timing is also an issue, voting groups say .
If passed, the law would take effect on July 1, 2024, just five months before the 2024 elections in which the state will vote for president, and elect a new governor, attorney general, lieutenant governor, and hundreds of other state and local lawmakers.
Under SB 749, the newly-appointed boards would have to choose their leadership, tackle all the decision making that goes into elections, learn the ropes, and try to come to agreement—all on an accelerated timeline.
A bipartisan group of election workers sent a letter to lawmakers in July urging them to listen to the people who’ve actually been running things and know what these changes will mean.
The group opposed Senate bills 749 and 747, and urged lawmakers to meet with county elections officials to hear how harmful some of these changes would be.
In 2018, both the state supreme court and North Carolina voters rejected separate attempts by the legislature to restructure state and county-level boards of elections.
The legislature voted to take away the governor’s ability to appoint members to the elections board, but the court said the law violated the state constitution. Lawmakers also proposed a constitutional amendment that would have created an even split on the boards.
Voters rejected the amendment with 61% of the vote.
“Here we are saying, ‘We don’t care what [voters] said,’” Rep. Monica Morey, a Democrat, said during the floor debate on Tuesday.
“It’s not about governing, it’s about politics. Because anytime there’s gridlock in the state board of election, who makes the final decision?” she said.
“This body. This supermajority body.”