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Litigation and elections in North Carolina go hand in hand. And in the days and weeks after this election, it seems very possible that trend will continue — even, potentially, with the fate of the race for U.S. president at stake.

Court battles over redistricting in North Carolina dominated the political landscape throughout the 2010s. More recently, Gov. Roy Cooper, a Democrat, has sued the state legislature's Republican majority over control of the North Carolina State Board of Elections. And until last year, Republican-led legislative efforts to implement a photo ID requirement for North Carolina voters were thwarted by lawsuits.

Jump to

• Poll observers
• Election results and certification
• Close races and recounts
• 'Contested' races for statewide executive office
• Litigation that could upend this year's elections
• Delays in certification

This year has been no different. Former third-party presidential candidate Robert F. Kennedy Jr., who has endorsed Donald Trump, successfully persuaded North Carolina's Republican-dominated appellate courts to overrule the Democratic-majority State Elections Board and remove his name from the state's ballots. That court battle delayed the start of absentee-by-mail voting in North Carolina by two weeks.

In another lawsuit, GOP lawmakers also got help from the state's appellate courts in battling the elections board over its approval of UNC-Chapel Hill's digital student ID as an acceptable form of voter identification.

As the final tally of votes from this year's consequential — and, in some cases, very tight — elections approaches, it's worth taking a look at the potential for interventions and the process of finalizing results, either by the courts or other means.

Voter challenges

Under state law, any registered voter in a county may challenge the registration or eligibility of another voter in that county. The rules governing such challenges vary based on the circumstances. For example, if a voter is , the initial adjudication would be handled by a precinct official such as the chief judge.

Challenges to another voter's must be filed with the county board of elections, which would then conduct a preliminary evidentiary hearing to determine whether grounds for the challenge are sufficient. The challenger bears the burden of proof in such challenges.

Poll observers

State law allows for officially recognized political parties to appoint to monitor elections administration. The parties may appoint two observers for each voting place in a county, in addition to a smaller number of at-large observers at the county and state levels.

Under the provisions of the statute, partisan poll observers may move about a precinct's voting area as well as the site's curbside voting area. Observers may listen to conversations between a voter and precinct officials, "provided the conversation is related to election administration."

Additional devised by the state elections board and added to North Carolina's administrative code require observers to wear identification tags to clearly define their role to voters.

Last year, the GOP-led legislature that expanded the ability of partisan poll observers to move more freely about voting sites and to use an electronic device to take notes. This legislation has raised concerns among voting rights advocates that observers could exploit the law to intimidate voters.

However, the law prohibits poll observers from photographing, videotaping, or looking at a voter's marked ballot. And observers may not impede a voter's entrance into, or exit from, the polling place. A chief judge may remove a poll observer from a voting location for engaging in any prohibited conduct.

Jonathon Gruenke

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For ¹ÏÉñapp

Election results and certification

First, it bears repeating that election night results are unofficial, as has been the case for a long time. Often, races are not so close that final counts of outstanding and mail-in ballots from military and citizens overseas make a difference in the ultimate outcomes. So, the end-of-Election-Night numbers often reflect how races ultimately turn out. However, final results do not get certified until after the .

For the 10 days after an election, county elections boards and staff go through a painstaking and thorough audit process. They check provisional ballots — those cast, for example, by people who register at an early voting site, and voters who claim an exception to the photo ID rule. They also validate eligible ballots and count them, and process — submitted by military personnel and citizens overseas), which, under federal law, may be received up to nine days after Election Day.

Under state law, local elections boards also conduct a hand-eye count of ballots from two randomly selected precincts to ensure vote-tabulation accuracy — and they reconcile data from electronic poll books, which are the laptops used to check in voters at polling sites, with the number of ballots cast.

Once the county elections boards certify results, they are submitted to the state elections board for final certification.

Close races and recounts

Under certain circumstances, state law allows for runner-up candidates in North Carolina to . If it's a race for county office, the second-place finisher may demand a recount if they come within 1% of the top vote getter. That margin is the same for a candidate seeking non-statewide office within the jurisdiction of the state elections board, a Congressional candidate, for example. For a candidate seeking statewide office, such as governor or a Council of State position, the margin for recount is 0.5%, or 10,000 votes, whichever is less.

The state elections board sets the rules for such recounts and must specify how the goals of multi-partisan participation, public observation, and good order will be achieved.

'Contested' races for statewide executive office

, of the North Carolina Constitution reserves a special process for resolving contested races for executive office, such as governor and lieutenant governor.

Under that article, any contested election for an Art. III office — those belonging to governor, lieutenant governor, and any of the 10 Council of State positions, such as attorney general or superintendent of public instruction — shall be resolved by the North Carolina General Assembly. Neither the constitution nor the relevant statute defines "contested," and neither Article VI nor Article III makes mention of federal races, like president or Congress.

The requires the senate president pro tem and the Speaker of the House to appoint special committees to review the election dispute and recommend an outcome to their respective chambers. A simple majority vote would determine the outcome of the contested election. Under state law, that decision would be final and would not be subject to judicial review. Note that Republicans currently hold large majorities in both houses in North Carolina, and that dynamic is expected to continue after this election.

Matt Ramey

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For ¹ÏÉñapp

Litigation that could upend this year's elections

State and federal courts have already intervened in North Carolina elections this year. As indicated earlier, after the state elections board's Democratic majority ruled it was too late to remove Robert F. Kennedy, Jr.'s, name from North Carolina ballots—a decision upheld by a state Superior Court judge—the Court of Appeals reversed, and the conservative-leaning state Supreme Court affirmed, that reversal. That meant reprinting and delaying the start of mailing out requested absentee ballots.

Earlier this year, in another lawsuit, a state court panel granted Governor Cooper's motion to block a new law that would give lawmakers appointment power over the state and county elections boards. Legislative leaders have appealed that ruling to the state Court of Appeals, which will be taken up after this year's elections.

The lawsuit to keep an eye on, especially for this year's Council of State races and, perhaps, some judicial contests, is one filed by the North Carolina Republican Party and the Republican National Committee.

The case originated as a complaint filed with the state elections board by an individual, who argued 225,000 registered North Carolina voters should be removed from the state's voter rolls. The issue was the outdated registration form they submitted.

As acknowledged by the North Carolina Board of Elections, that form ran afoul of the Help America Vote Act by failing to clearly require the last four digits of the registrant's social security number or their driver's license number.

The NCGOP and RNC sued either to have these voters removed from the state's voter rolls or, alternatively, to have them required to cast provisional ballots.

It should be noted that when casting absentee-by-mail or in-person ballots, voters' identities and eligibility are confirmed in a number of ways. Absentee ballots must be signed by two witnesses or a notary. Voters must provide photo ID whether casting ballots in person or by mail. Additionally, in-person voters are checked in at polling places, where eligibility and address are confirmed.

The state elections board determined the voters who registered with the defective forms did not need to be removed from the rolls. A federal district court judge appointed by former President Trump, Richard Myers II, dismissed the first claim of the GOP lawsuit — that the state elections board violated the for maintaining voter rolls — determining the state and national Republican groups had no standing to bring that challenge.

But Myers sent the second claim of the lawsuit, arguing that failing to remove the 225,000 registered voters violates the equal protection clause of the North Carolina Constitution, back to the state courts for further review.

The Democratic National Committee, which intervened in the case on the side of the state elections board, has appealed that remand order. The U.S. Fourth Circuit Court of Appeals has put a stay on the remand order until noon on Friday, Oct. 25, to allow it to rule on the pending motions.

The potential for remand to the state courts, where conservatives hold majorities at the Court of Appeals and the North Carolina Supreme Court, raises a dicey question: What happens if, say, races for the superintendent of public instruction and lieutenant governor come down to a few hundred votes and a state court finds that 225,000 North Carolina voters should have been removed from the rolls?

Former North Carolina Supreme Court Justice Bob Orr, an anti-Trump Republican-turned-unaffiliated voter, said that with early voting already underway it is unlikely a court will intervene either by ordering the removal of registered voters from the rolls, or by requiring these voters to cast provisional ballots.

"What that does do," Orr asserted during a recent panel discussion organized by the Election Reformers Network, a nonprofit organization dedicated to countering partisan efforts to sow distrust in elections, "is tee up the possibility for the litigation morphing into a protest over a particular election or elections."

Delays in certification

New York University's Brennan Center for Justice compiled a to the way state laws would resolve certain elections disputes in North Carolina and other battleground states. For example, the state elections board has to seize records from counties in the event a local elections board delays or refuses to complete the post-election process.

Polls suggest North Carolina will be closely contested in this year's presidential race, four years after Trump edged President Joe Biden by a little more than 1%. Republicans are fighting to hold onto their slim veto-proof majority in the state legislature. Candidates for down-ballot races such as state superintendent of public instruction and lieutenant governor are engaged in bruising fights.

And lawsuits have just been getting started. All of which is to say, buckle up, things could get even bumpier after Election Day.