EXCLUSIVE: Wake Co. paid $10k to settle lawsuit from election integrity activist
EXCLUSIVE: Wake Co. paid $10k to settle lawsuit from election integrity activist
Lynn Bernstein sued after being banned from the Wake County Board of Elections headquarters
Last year, the Wake County Board of Elections (WCBOE) agreed to pay $10,001 to Lynn Bernstein to settle a federal lawsuit she brought over being banned from the county election headquarters, according to a settlement document exclusively obtained by This Week in the Triangle.
The Background
Bernstein, a Democrat, got involved in election integrity activism after the 2016, and began applying her experience in the field of aerospace engineering to analyzing how our elections are run here in North Carolina. Bernstein ended up founding Transparent Elections NC, "a volunteer group devoted to ensuring that NC elections are worthy of the public’s trust".
"Our mission is to confirm that every eligible vote is counted as the voter intended by working with elections officials to ensure that elections are secure, transparent, robustly audited, and publicly verified."
At the time of the incident in which Bernstein was trespassed from the WCBOE headquarters, she had been regularly attending the public meetings held by the board at the location for years.
Prior to the mainstream media's flip on election integrity in relation to the 2020 election, Bernstein had even been reported on positively by local TV station ABC11: "Cary mom helps convince Board of Elections to reconsider vote on voting machines".
The Incident
On May 14th, 2022, three days before the 2022 primary, Bernstein drove out to the WCBOE property along with John Brakey of AUDIT USA to look for a suitable location to hold a protest on election night to call for greater transparency from the board.
A special police officer working as a security guard at the location recognized Bernstein from her activism, and alerted the WCBOE Director of Elections, Gary Sims, as well as the Deputy Director, Olivia McCall. (McCall has since been promoted to Director after Sims' retirement)
Sims instructed the guard to call the Raleigh Police, and report Bernstein and Brakey for "suspicious activity" for recording video outside the WCBOE building. The guard then called the police a second time on behalf of Sims to request that Bernstein and Brakey be trespassed from the property.
Raleigh Police then arrived, and complied the director's request to formally trespass the two activists; if they returned to the property they could be arrested and charged with a misdemeanor.
With no recourse provided to appeal this permanent ban from the facility where the WCBOE holds it's public meetings, Bernstein filed a federal lawsuit alleging that her constitutional rights had been violated.
The Lawsuit
On July 19th, 2022, Bernstein filed a lawsuit against Sims and the WCBOE in the United States District Court for the Eastern District of North Carolina alleging violations of her constitutional rights; including her Fourteenth Amendment right to due process and her First Amendment right to speak freely and criticize the government without fear of retaliation.
The May 14th incident was not the first conflict between Bernstein and Sims; according to the lawsuit she had "drawn [his] anger" in the 2020 election season for requesting to see poll tapes at precinct locations, and criticizing his illegal processing of absentee ballots and lack of transparency (which was the subject of the planned protest).
Bernstein's filings also included an affidavit which described an October 5th, 2021 incident after a WCBOE public meeting in which Sims allegedly leaned in "within a millimeter of [Bernstein's] nose and quietly seethed 'Get Out'", leaving the affiant, Karen Raines, "stunned by the menacing manner in which [Sims] spoke to Lynn [Bernstein]".
The defendants' responses argued that banning Bernstein from the property was justified; that she had "tampered" with an open gate and prevented it from closing by walking in and out.
They also alleged that Bernstein had "exhibit[ed] behavior at the WCBOE that has necessitated elevated security measures", apparently referring to an incident in which Bernstein left a bag behind after leaving a public meeting. The "elevated security measures" appear to be that the board members began parking in the facility's private lot after Bernstein attempted to ask board members questions on camera in the public parking lot after a public meeting of the WCBOE.
In October, Bernstein released surveillance video from the WCBOE appearing to show that neither she nor Brakey had "tampered" with the the gate, or intentionally prevented it from closing.
On December 1, 2022, Judge Terrence Boyle granted Bernstein a preliminary injunction, preventing the WCBOE from enforcing the trespass notice "during any meeting of the [WCBOE] that is open to the public". A preliminary injunction requires that the plaintiff is "likely to succeed" on the merits, with Boyle ruling that "[Bernstein] has presented sufficient evidence that her being trespassed was motivated not by any criminal activity but by her prior expression of her viewpoint and message," and that the "defendants have failed to sufficiently demonstrate that plaintiffs ban from...WCBOE public meetings, was for a legitimate purpose."
On April 3, 2023, Judge Boyle granted the defendants' motion to dismiss claims for assault and defamation against Sims in his personal capacity, leaving only the civil rights claims against the WCBOE and Sims in his official capacity.
The Settlement
Meanwhile, Bernstein had entered mediation with the defendants and, on April 6, 2023, accepted a settlement agreement.
In exchange for dropping the lawsuit, the WCBOE agreed to revoke the trespass notice against Bernstein, as well as paying her an amount of $10,001.
The settlement did not include any payment of Bernstein's legal costs; from my personal experience with the legal system, depending on her agreement with her attorneys, this very well could have consumed a large part, if not all, of the settlement amount.
In addition, the parties agreed that they "will not make any representation inconsistent with the terms of this Agreement", and that "they will not misrepresent the settlement of this case and will not make any remarks publicly that contradict this Agreement".
The WCBOE and Sims explicitly did not admit fault as part of the settlement.
Thank You for coming to the Western Wake GOP meeting to inform us about the Wake County BOE's payout to a activist Citizen and for telling us about your independent publication.
Lynn B is a brave and wonderful woman!