NC Board of Elections declines Berger request for hand-eye recount of 220 ballots ...Middle East

North Carolina State Board of Elections Executive Director Sam Hayes speaks to members of the media on Wednesday, March 18, 2026. (Photo: Brandon Kingdollar/NC Newsline)

Republican state Senate Leader Phil Berger (R-Rockingham) was handed a setback in his election recount efforts Wednesday when the North Carolina State Board of Elections declined to take up his request for an expedited hand-eye recount of 220 ballots.

The decision comes as Berger seeks to overcome a 23-vote deficit to primary opponent Rockingham County Sheriff Sam Page. The request for the hand-eye examination — meaning visual review by human counters without the use of a machine — came as part of Berger’s request for a recount of the race on Tuesday, which remains ongoing.

Of the ballots Berger singled out, 217 are undervotes, in which voters appear to have not voted on a ballot item despite casting a ballot, either because they left the section blank or left an unclear marking. The other three are overvotes, ballots in which multiple candidates appear to have been selected, invalidating the vote.

There is no remedy for the former if they truly are undervotes, said State Board of Elections Executive Director Sam Hayes, because the board “can’t account for something that is not there.”

Under state law, “if it is impossible to clearly determine a voter’s choice in a ballot item, the official ballot shall not be counted for that ballot item.” For ballot items where selections cannot be read by a machine, votes can only be counted if “human counters can clearly determine the voter’s choice.”

“We’re going to follow the law as it’s dictated in statute and rule, and that’s what we’re doing here,” Hayes told members of the media after the decision. “That’s why the board took no action today to let this process, as it’s laid out, go forward.”

Those 220 ballots may still get a hand-eye review as part of a full manual recount if it’s required in the race. After completing the machine recount, each county board of elections will conduct a hand-eye recount of ballots in 3% of the precincts in the race.

Only if a discrepancy in that randomly selected sample is enough to overturn the results when extrapolated to the full pool of votes would a hand-eye recount of all ballots take place.

Jonathan Felts, a spokesman for the Berger recount effort, said the board’s decision threatens to disenfranchise voters as the ballots in question “have never been counted” and require “a careful inspection” to ensure they have been correctly identified as over- or undervotes.

“These citizens obviously made the effort to vote, and one can safely assume they want their vote to be counted. Their ballot deserves to be examined for voter intent,” Felts said. “Today’s ruling leaves little recourse for every legal vote being counted other than to seek a hand recount. But no decision has yet been made on that front.”

Patrick Sebastian, a spokesman for Page, said the board’s decision is evidence that Berger “should concede the race he lost so the Republican Party can unite behind Sam Page for the general election.”

“Senator Berger resorted to asking the Board to ignore state law in his attempt to cling to power after losing more than two weeks ago,” Sebastian said. “That’s not how elections work in North Carolina — and the Board made that clear today.”

The unusual request to perform a hand-eye recount on a specific subset of ballots is not explicitly provided for in state law. Rather, Berger’s letter referenced the board’s broad  sweep of authority to make rules “with respect to the conduct of primaries and elections as it may deem advisable” and to “advise the county boards of elections as to the proper methods of conducting primaries and elections.”

“These overvotes and undervotes could very likely determine the outcome of this race,” Berger wrote in his letter to the board on Tuesday. “By counting the overvotes and undervotes by hand during the first machine recount process, the candidates and the public can have confidence in the accuracy of the vote count in this very close race without the need to conduct a full hand-to-eye recount of all votes cast.”

In addition to the recount request, Berger is contesting the election results through multiple other avenues. He filed four protests with county boards of elections on Tuesday concerning 13 ballots, and he has also alleged voter intimidation by the Page campaign, a complaint he could pursue through the State Board of Elections.

“That’s certainly within our purview to investigate,” Hayes said of the complaint, though he stressed that election board investigations are confidential. “If we receive credible evidence of the fact there was voter intimidation, certainly, our division of election security enforcement would take that on.”

Wednesday’s meeting was the first for new Board of Elections member Angela Hawkins, a Republican who succeeded Bob Rucho after his resignation over improper campaign contributions. Members of the board also postponed consideration of the use of a controversial noncitizen list maintenance tool until next month to allow staff time to review around 15,000 public comments.

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