NC elections board censures Wake officials over deceased voters’ ballots

After an hours-long hearing on Wednesday, the North Carolina State Board of Elections (NCSBE) voted unanimously to censure Wake County Board of Elections members Greg Flynn and Gerry Cohen for counting the votes of three deceased voters who voted prior to the General Election in November 2024.

Republican board member Angela Hawkins made the motion after an earlier motion that she made to remove both men from the county board for not following election law failed, with her and Republican board member Stacey “Four” Eggers voting yes and Republican member and chair Francis De Luca, and Democratic members Siobhan Millen and Jeff Carmon voting no.

Hawkins also made the motion in which the board voted 3-2 along party lines, with Hawkins, De Luca, and Eggers voting yes, and Millen and Carmon voting no, that the Numbered Memorandum 2022-05, directing county boards on board challenge processes and board members was presented to the Wake County Board of Elections and had received a list of ineligible votes cast for that election and that the state board conclude that Cohen and Flynn engaged in a violation of the election laws.

Numbered Memorandum 2022-05, as revised Dec. 15, 2023, directs county election boards to remove ballots cast by voters who voted early in person or by absentee ballot and died before the day of the election.

The hearing was held based on a decision made by Administrative Law Judge Linda F. Nelson on Feb. 24, who stated that the NCSBE violated its own rules and must conduct a new hearing into local elections board members.

She originally gave the same ruling on Feb. 12 but struck it on Feb.13 to be retroactive to Feb. 12, removing it from the docket.

Rowan County is also listed in the decision but was not discussed at the hearing on Wednesday.

Steve Holland of Weaverville filed a complaint against the elections board, alleging that three Wake County Board of Elections members failed to follow a state board directive requiring the removal of early votes cast by individuals who died before Election Day, Nov. 8, 2024.

Holland requested hearings on Nov. 21 and Dec. 4, 2024, on whether certain county election board commissioners breached their duties under Chapter 163 of the North Carolina General Statutes or participated “in irregularities, incapacity or incompetency to discharge the duties of office.”

The state board voted 3–2 along party lines in January 2025 not to hold one. At that time, the board included Democratic members Alan Hirsch, Jeff Carmon, and Siobhan Millen; and Republican members Stacey “Four” Eggers and Kevin Lewis.

Holland subsequently filed a contested case petition with the Office of Administrative Hearings, challenging what they described as an unlawful decision.

Nelson concluded in her ruling that the state board “erred as a matter of law in determining that the Request[s] for Hearing did not establish a prima facie case” and ordered the board to hold hearings to determine whether Wake County Board Members Gerry Cohen and Erica Porter, who has since resigned, should be removed from office since they allegedly improperly voted not to remove challenged ballots cast by voters who voted early in person or by absentee ballot and died before Election Day, resulting in these votes being counted.

Wake County board member Greg Flynn was also a subject of the complaint. Flynn was reappointed to fill Porter’s position.

The North Carolina Attorney General’s Office, representing the state board, sought to dismiss the case last summer on procedural grounds. 

Before the hearing began on Wednesday, Millen asked Hawkins, who previously served as the chair for the Wake County Board of Elections, if she should recuse herself because she had knowledge of the situation and was a witness, and worked with the county board on early elections.

Hawkins replied, “I’m not a witness, and I have no more knowledge than anyone else that was present at that meeting when the potential conflict or allegations occurred.”

She also stated that she didn’t work with the board on early voting and that she could be impartial and already consulted with the Ethics Commission and said she had a lot of respect for the NCSBE and Millen herself who did not recuse herself in a matter that came before the board years ago involving her husband’s law firm and was able to evaluate the matter objectively and fairly.

In his opening statements, Holland said that Cohen and Flynn were both aware of the directives in the memo and consciously chose not to follow them, adding in his closing statements that they weren’t malicious in doing so, but that they should be removed from the board.

He also said it was troubling that 42 other votes from deceased voters were thrown out, while the three in question were counted.

“Similarly situated voters were treated differently,” he said. “The Wake County board counted three ballots cast by voters that died before Election Day while removing numerous other ballots cast by voters who also died before Election Day. The evidence will demonstrate that materially indistinguishable voters receive different treatment under the same legal framework. Election law cannot mean one thing for some voters and another thing for others.”

Both Cohen and Flynn said they were moved by hearing from family members of a 96-year-old man, a 78-year-old man, and an 18-year-old woman after they received challenge letters stating that their votes were in question since they passed away before the General Election.

“These people cast their votes deliberately knowing that they were in the last stages of their lives,” Flynn said. “Those votes were cast and as soon as they were cast, they were sacred, and we have a duty to treat those votes as sacred, as sacred as any other vote. Then, this process makes us turn around and treat them like felons, worse than felons, and subject their next of kin to what’s essentially cruel and unusual punishment for people who didn’t do anything wrong.”

Cohen said he strongly believed that the law is not what the numbered memo says and that the law was in conflict with the North Carolina Constitution, which is what is to be upheld.

“If this triggers a process to look at this that’s fine,” he said. “If I help with the grief of these three survivors, then I’ve done more than anything I’ve done in several years.”

Flynn added that both and he and Cohen followed the numbered memo

Both men also said that neither engaged in illegal conduct and removal was not necessary, and apologized for what they did and wouldn’t take the same action again.

Eggers said since at least the last 25 years, it has been read and interpreted and applied that a voter has to be alive on Election Day in order for that ballot to count.

Millen argued that nowhere in the memo does it say if a person dies between when they vote and Election Day that ballot will not count and that both men made an error in judgement and asked that they be reprimanded and not removed from the board.

Carmon agreed, stating that there was ambiguity in the law and you can’t penalize a member when there is confusion between the law and the memo.

Before the second motion to censure Cohen and Flynn was made, Hawkins said she was also concerned that the directive in the memo wouldn’t be followed in future elections if other counties don’t agree on something that is said.  

“NC elections board censures Wake officials over deceased voters’ ballots” was originally published on www.carolinajournal.com.