Bernstein v. Sims: Election Integrity Advocate Sues after Banishment from Wake County BoE Headquarters
On May 14th, 2022, three days before the North Carolina primary, election integrity advocate Lynn Bernstein was “trespassed” from the Wake County Board of Elections Headquarters. Bernstein is currently bringing a federal lawsuit against the Board and the county Director of Elections, alleging that her constitutional rights have been violated by the prohibition against setting foot on the property, which is open to the public for occasions such as Board meetings and observation of certain counting/recounting procedures (case: Bernstein v. Sims (5:22-cv-00277)).
Bernstein has a hearing on a preliminary injunction next Monday (November 14th). There hasn’t been much if any media coverage of the incident, so I figured I’d write something up after an analysis of the motions and evidence filed by both parties in the case. Since I’m not a lawyer, I’ll be focusing on the facts alleged as opposed to the legal claims made.
Background
Lynn Bernstein got into election integrity after the 2016 election, utilizing her experience testing complex systems in Aerospace Engineering to examine North Carolina election systems, laws, practices, et cetera. Prior to 2020, local mainstream media had actually covered Bernstein’s election integrity efforts favorably, such as in an ABC11 article titled “Cary mom helps convince Board of Elections to reconsider vote on voting machines”. In 2019, Bernstein founded Transparent Elections NC, a “non-partisan group of volunteers who are making elections more trustworthy in NC by working with elections officials to ensure that elections are transparent, secure, robustly audited, and publicly verified”. Bernstein is a Democrat, as can be verified by her voter registration, or her presence as a Board Member for the Democratic Women of Wake County.
May 14th, 2022
The following facts are not in dispute: three days before North Carolina’s 2022 primary election night, Bernstein and John Brakey, co-founder and directory of AUDIT USA, travelled to the Wake County Board of Elections property to scope out a location for an election night protest to call for greater transparency from the Board. A private “Special Police” officer Janice Carter working security for the Board observed Bernstein and Brakey driving around the property before parking at a nearby lot, and recognized Bernstein from previously visits to the Board. Carter then contacted Gary Sims, the Wake County Director of Elections because she was aware of “prior incidents” “involving” Bernstein, and met Sims outside the building in view of Bernstein and Brakey. Carter then called the Raleigh Police to report a “suspicious vehicle”. Although Carter does not specify in her declaration that the call was made at the direction of Sims, in the call to the police she stated that “the director asked me to call and state that it’s a suspicious activity.”
Bernstein and Brakey moved around the outside of the property, looking for a good location to hold their planned protest. The pair also approached an open gate, out of view of where Carter and Sims were watching. We’ll get into what happened at the gate below, as the exact facts are in dispute. After Sims received a call from his Deputy Directory Olivia McCall about the gate incident, Carter called Raleigh Police again to expedite the response to her first call.
When the Raleigh Police Officer arrived, he informed Bernstein and Brakey had already left the property. The officer informed them that they were being trespassed. For those who aren’t aware, this does not mean they were arrested, or charged with any crime. Instead, they were informed that they would be arrested in the future if either returned to the property
Facts in Dispute: the Gate Incident
Bernstein and Brakey had approached an open gate to a parking lot on the North West side of the building. According to Bernstein, Brakey took a few steps inside the gate “get a better look” at some signs which had been set up inside the fence. As soon as Brakey stepped inside the gate, it began to close. Brakey rejoined Bernstein outside the automated gate, which proceeded to open and close multiple times.
The defendants have a different description of this incident, alleging that Bernstein was “tampering” with the gate, and that this was the basis for the trespass from the property. There is also the third-hand allegation in Carter’s declaration that McCall told Sims that “a person or persons were seen on camera by the Wake County Security Officer using their foot to activate the sensor to the gate in an effort to prevent the Wake County Security officer from closing the gate”. McCall’s declaration does not include any mention of a foot, instead stating that “the security officer informed me that there were two individuals positioned near the gate and one individual was preventing the gate from closing properly.” The report filed by the security officer in question, Caleb Sparks, claims that “console attempted to close the gate but there were a [sic] two individuals (an older male and female) who walked through the gate and kept it from closing (Can be viewed on 5710F BOW EX NW Main Parking 2). These individuals proceeded to walk through the gate and onto BOE property several more times, preventing the gate from closing.”
The video of the incident captured by the security camera which Sparks references does not appear to have been included in the case. In reference to Sparks’ report, Bernstein’s Amdended Complaint alleges that “the report also refers to two different County surveillance videos, videos that were not provided to Ms. Bernstein even after multiple requests. County surveillance video provided to Ms. Bernstein clearly shows that she never entered the gate.” It seems to me that this video of the incident would clearly demonstrate which version of the story is more accurate, and whether the Board has any real evidence that Bernstein or Brakey was in fact attempting to tamper with the gate. It would also clear up whether the plaintiff, Bernstein, actually ever set foot inside the gate (even the declarations filed by the Board are not consistent in this regard).
“Prior Incidents”
As we can note in both the declarations of Carter and McCall, Bernstein was known to them by both name and face. In McCall’s declaration, she states that she “personally witnessed [Bernstein] exhibit behavior at the WCBOE that has necessitated elevated security measures.” As documented in an attached email regarding a board meeting on October 5th, 2021, the “behavior” in question was Bernstein leaving her bag in the Board Meeting room after the meeting ended. In addition, Bernstein is alleged to have waited outside in the parking lot to ask Board Members questions on camera as they exited. The “elevated security measures” in question appear to be that the Board Members started parking in a private lot so they could “enter and exit without being approached by members of the public.”
Bernstein’s filings contain a description of a different sort of “prior incident” at the same October 5th board meeting, where Sims approached Bernstein, leaned in to “within a millimeter of [Bernstein’s] nose, and quietly seethed ‘Get Out,'” according to an included affidavit by Karen Raines. Raines also attested that she was “stunned by the menacing manner in which [Sims] spoke to Lynn [Bernstein].”
Conclusion
That’s my analysis of the facts alleged by both sides in this case as they currently stand. On the one hand, Bernstein alleges that the trespass/ban is targeted harassment as a response to her 100% legal behavior in consistently addressing the board and attempting to hold them accountable for what she perceives to be a lack of transparency. On the other hand, the Board alleges that it was solely Bernstein’s behavior which contributed to the ban, without any regard for the content of her speech.
Document links:
1 Original Complaint
13 Motion for Preliminary Injunction
14 Memo in Support of Motion for Preliminary Injunction
16 Answer to Complaint
17 Motion to Dismiss (Failure to State a Claim)
18 Memo in Support of Motion to Dismiss
20 Response in Opposition to Motion for Preliminary Injunction
21 Amended Complaint
22 Response in Opposition to Motion for Dismiss
23 Reply in Support of Motion for Preliminary Injunction
23 Reply in Support of Motion for Preliminary Injunction Exhibit A
23 Reply in Support of Motion for Preliminary Injunction Exhibit B
23 Reply in Support of Motion for Preliminary Injunction Exhibit C
I have photographic, audio, and video exhibits as well, but I’m not sure the best way to make them available. There’s links in a document published by Bernstein, as well as a press release.
