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HomeMy WebLinkAboutBoard Meeting Agenda Packet 04-12-2022MEETING AGENDA Date: April 12, 2022 Time: 5:00 PM Location: Bd of Elections Office, Long Leaf Room Type: Special Scheduled Attendees: Oliver Carter III, Chair Rae Hunter-Havens, Elections Director Derrick R. Miller, Secretary Caroline Dawkins, Elections Deputy Director Lyana G. Hunter, Member Joan Geiszler-Ludlum, Administrative Elections Bruce Kemp, Member Technician Russ C. Bryan, Member Visitor(s): Sheryl Kelly, Assistant County Manager AGENDA ITEMS 1.Meeting Opening a.Call to Order b.Preliminary Announcement i.Silence Phones ii.Recording & Streaming iii.Other c.Pledge of Allegiance d.Approval of Agenda e.Approval of Minutes (2/15/2022) 2.Public Comment and Question Period •2-minute limit •20-minute limit total 3.Statutorily-Required Business •Review of Absentee Ballot Applications 4.Old Business •Approval of Minutes (9/1/2021 and 9/14/2021) 5.General Discussion •Other Elections-Related Matters 6.Adjournment *Agenda packets are sent via email in advance of meetings. Special Meeting New Hanover County Board of Elections April 12, 2022 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Item # 1d Draft Special Meeting New Hanover County Board of Elections April 12, 2022 Subject: Approval of Minutes Applicable Statutes and/or Rules N.C. Gen. Stat. §§ 163-31(e) and 143-318.10(e) Summary: This includes minutes from the 2/15/2022 meeting. Board Action Required: Staff recommends approval Item # 1d Item # 1e Draft Board Minutes – 02/15/2022 P a g e | 1 REGULAR MEETING New Hanover County Board of Elections February 15, 2022 5:15 P.M. ATTENDANCE Members: Oliver Carter III, Chairman Derrick R. Miller, Secretary Russ C. Bryan, Member Lyana G. Hunter, Member Bruce Kemp, Member Staff: Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Chris Tisbert, Elections Systems Specialist Joan Geiszler-Ludlum, Administrative Elections Technician Visitors: Sheryl Kelly, Assistant County Manager Public Attendees: Bob Gatewood; Matthew Emborsky, Julius Rothlein, NHC GOP; Mike Torbit; Jill Hopman, NHCDP. Virtual Attendees: Mike Pascarell; Loraine Buker; Lynn Bernstein, TENC; one unidentified telephone participant. 1. MEETING OPENING a. Call to Order Chair Carter called the meeting to order at 5:15 p.m. The New Hanover County Board of Elections meeting was held in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. All members were present. b. Preliminary Announcements Chair Carter reminded the audience that the meeting is being live streamed and recorded and requested them to silence their cell phones. c. Pledge of Allegiance Chair Carter invited all in attendance to rise and recite the Pledge of Allegiance. Draft Board Minutes – 02/15/2022 P a g e | 2 d. Approval of Agenda Secretary Miller moved that the agenda be approved as submitted, second by Member Hunter. Member Kemp said he had requested an agenda item regarding enabling observers to observe the opening of the polls. He sees an item on the agenda, Observers, under New Business. Is that the item he requested? Chair Carter said that from the agenda packet it is. Director Hunter-Havens confirmed. Motion to adopt the agenda as submitted carried unanimously. e. Approval of Minutes Chair Carter said he will submit proposed minor, non-substantive revisions to the 9/1/2021 minutes and moved to defer their consideration, to be taken up under Old Business, second by Member Kemp. He asked whether the Board members have had adequate time to review the drafts minutes. Hearing no discussion, he called for the vote. Motion carried unanimously. Chair Carter said he had a proposed edit to the draft 11/02/2021 minutes. On the third page, first full paragraph, change the third sentence, “The State Board of Elections (SBE) gives guidance to the county boards of election which we don’t see,” to read instead, “The State Board of Elections (SBE) gives guidance to the county directors and staff which the Board doesn’t see.” Such guidance usually addresses internal election systems, such as campaign finance or processing voter registration forms in the software, which are the responsibility of staff. He moved to adopt the 11/2/2021 minutes with that amendment, second by Member Kemp. Motion carried unanimously. Chair Carter turned to the draft minutes of 1/11/2022 for consideration. He noted two typographical changes: change “get” to “getting” on page 2, last paragraph, sixth line; and correct typo in “certificates” on page 3, last paragraph, second line from the bottom. With those corrections, he called for a motion to approve the minutes as amended. Member Kemp moved approval, second by Member Hunter. Motion carried unanimously. 2. PUBLIC COMMENT AND QUESTION PERIOD Chair Carter called upon the public in-person attendees for their comments or questions, limited to two minutes each and reviewed the guidelines. He asked that the speaker yield to the Board members or the Director to ask questions for clarification. Chair Carter said the Board received a list of nine questions from Julius Rothlein, addressing list maintenance, written procedures for One Stop Early Voting, and in-kind donations. The Board will review the questions and respond either later in this meeting or at another time. Julius Rothlein, NHC GOP, asked for confirmation that the Board has received the Republican Party’s February 6 nomination of Laurie Apple as a transfer judge for Precinct H10. She is a retired Army officer and previously served as a precinct judge and Draft Board Minutes – 02/15/2022 P a g e | 3 chief judge in Forsyth County, NC from 2008 to 2016. She has served as an observer in New Hanover County. Second, he has a public records request to review the absentee ballot envelopes during the primary weekly on Fridays after the Board has accepted the ballots. Chair Carter asked that Mr. Rothlein email the public records request to Director Hunter-Havens, following the standard procedure. Director Hunter-Havens said she will set a date and time when any interested parties may review the accepted absentee ballot envelopes. Matthew Emborsky asked if the New Hanover County Republican Party observers will be allowed to review the original absentee ballot application requests submitted for 2021 Municipal elections? Second, will they be permitted to review the original absentee ballot requests submitted for the 2022 Primary election? Third, will the Republican Party receive the official register of the 2021 mail-in absentee ballots, containing the information provided by New Hanover County to the State Board of Elections? Director Hunter-Havens said the absentee register information is publicly available as a public record on the State Board of Elections website. That is how the register is made available to the public. Once that downloaded information is made available to the public, no separate document will be generated. Chair Carter called on the Director to address the two requests for access to review the absentee ballot application requests. The Director said she has agreed to produce the redacted requests once payment is made of the estimated administrative fee to cover the expense to print and redact the application requests. Chair Carter asked if the redacted forms are acceptable? Mr. Rothlein said the point is to verify the identification information given by the voter, which is meaningless if redacted. Chair Carter said he has noted the request and called for any other public questions or comments. Member Bryan asked Director Hunter-Havens what information is redacted? The Director said the statute requires redaction of confidential information, defined as date of birth, driver’s license number, social security number (last 4), email address, and signature. She further said that the State software prevents the printing of mailing labels unless all required information is on the form, providing a system check on the completeness of the request. Chair Carter said he will keep working on this request but not in this meeting. The Board will take this matter up at the next meeting. Lynn Bernstein, virtual attendee, said she is the founder of Transparent Elections NC. She is impressed and appreciates the meetings being live-streamed and taking remote public comments. One goal of her group is educating the public about what to expect in elections and as an observer. She also Chair of Democratic Party Disability Access Caucus, working with elections boards on improving access to elections for people with disabilities. She is surveying what county boards are doing in allowing public comment and broadcasting their meetings. Chair Carter thanked her for her interest and comments. Seeing and hearing no other public attendees wishing to comment, Chair Carter closed the Public Comment period. 2. DIRECTOR’S REPORT Draft Board Minutes – 02/15/2022 P a g e | 4 Chair Carter called on Director Hunter-Havens for her report. a. Financial Update The Director reviewed the monthly financial reports, noting that expenditures to date are as expected. Contracted Services appears over budget due to encumbrance of routine big-ticket items for the upcoming primary election. Member Hunter asked whether there is any update on the reason for the Insurance & Bonds expenditure, which is higher than budgeted. Director Hunter-Havens is working with Risk Management, which is still researching the information, but the partial answer seems to be coverage for new voting equipment and the new office location may be the reasons for the increased cost. b. List Maintenance Director Hunter-Havens summarized the Statewide Elections Information Management System (SEIMS) list maintenance data for January 2022: • Removed 409 voters from the voter registration rolls consistent with NC Gen. Stat. §163-82.14. • Processed 961 new registration forms, 258 duplicate registration forms, and 680 registration update forms. She reviewed the National Change of Address process which is underway. Twice each year county boards receive a list of US Postal Service reports of address changes. The county board sends postcards to registered voters at the newly reported address, giving the voter the opportunity to update their voter registration record. Cards that are undeliverable are returned, processed, and a second card is mailed to the registration address of record, providing another opportunity to report an address change or confirm the current address. Undeliverable cards from the second mailing are processed and the voter is placed in Inactive status, pending confirmation or update of the voter’s current address. Address updates may also occur from routine mailings to active voters outside of the NCOA process. c. Redistricting update Director Hunter-Havens gave an update on the redistricting process currently underway. On Friday, February 4, 2022, the NC Supreme Court ruled that the current congressional and state legislative districts are unconstitutional under the free elections, equal protection, freed of speech and assembly clauses of the NC Constitution. In the resulting order, the Court instructed the NC General Assembly, political parties, parties to the case, and other intervenors to submit new maps by February 18, 2022 to the trial court which will then determine which maps to use by noon on February 23, the day before filing reopens. Any emergency appeals to the Supreme Court must be filed by February 23 by 5:00 pm. There will not be enough time to update the software to reflect the approved maps. The State Board plans to provide an app that will allow the county boards to verify eligibility in the districts where residency is required. Chair Carter thanked her for her report and called for any questions or discussion. Hearing none, he continued with the next agenda item. Draft Board Minutes – 02/15/2022 P a g e | 5 4. STATUTORILY-REQUIRED BUSINESS a. Polling Place Change for Precinct W18 The New Hanover County Board of Elections approved an out-of-precinct voting place for W18, Sea Gate Baptist Church, at their January 11, 2022 meeting. After that meeting, the new owners, Multiply Church, formerly First Assembly of God, let us know that they were interested in hosting elections. Director Hunter-Havens said she had not submitted the out-of-precinct voting place request to the Executive Director of the State Board of Elections when she became aware of the possible in-precinct location being available and the out-of-precinct location is no longer the only available alternative. The church has selected the electioneering restriction to allow electioneering and campaign signage on the premises on Election Day only. This limitation will require the approval of the Executive Director of the State Board of Elections if approved by the county Board. This is the same location that had served precinct W18 prior to 2021 when it was on the market. The site is considered in-precinct because a tax parcel is adjacent to the precinct boundary. It meets all accessibility requirements without the need to rent a ramp which was required at the Sea Gate Baptist site. Member Bryan asked if the designation as a polling place is per election. The Director said the designation runs for the election cycle, from January 1 of the odd-numbered year through December 31 immediately following Election Day. This is an opportune time to make this change before the primary election to avoid confusing voters by changing between the primary and general election. Member Hunter asked if there are any contractual obligations with Sea Gate Baptist. Director Hunter-Havens said the folks at Sea Gate were understanding of the preference for an in-precinct location and said they would be willing to serve as a voting location again as needed. Member Kemp moved approval of the Resolution to Adopt Polling Place Change in New Hanover County, to relocate the W18 Precinct Polling Place to Multiply Church, 4927 Wrightsville Avenue, Wilmington, second by Member Hunter. Motion carried unanimously. b. Proposed FY2022-2023 Budget Enhancement Requests Chair Carter called on the Director for her report. She presented three enhancement request forms prepared for submission to the FY2022-2023 County budget process, which take into consideration the reasons for the request to address the increased challenges in recruiting and retaining election officials as well as the budgetary impact looking five years ahead. The three enhancements are: • Increase Election Official Compensation for One Stop Officials from $10 per hour to $15 per hour for assistants and $17 per hour for One Stop Site Leads. • Increase in Election Official Compensation o For Chief Judges from $225 to $300 per day (effectively from $15 per hour to $20 per hour). o for Judges from $180 to $255 per day (effectively from $15 per hour to $20 per hour); and Draft Board Minutes – 02/15/2022 P a g e | 6 o for assistants from $120 per day to $225 per day (effectively from $8 per hour to $15 per hour). • Increase in Election Official Compensation for Multipartisan Assistance Team (MAT) members from $25 per visit to $40 per visit for an average of two-to- three-hour visits. She presented a letter she drafted for the Board to consider sending to the County Commissioners in support of these Elections budget enhancements. She reviewed the survey of compensation offered by comparable county boards, which indicated that New Hanover County is paying less than other boards of comparable size and complexity. Chair Carter requested correction of one typo in the draft letter, change “fiat” to “fair” in the last paragraph. He asked when this letter needed to be submitted to the County Commissioners. Assistant County Manager Sheryl Kelly said the best timing would be mid-March to the end of March, when the Commissioners have reviewed the enhancement requests and the information would be fresh in their minds. The Board members reviewed the letter for any additional changes or corrections. Member Kemp asked if the enhancement requests have been submitted. Director Hunter- Havens confirmed they had. He expressed his concern with the first sentence of item 2, Compensation for One-Stop Officials, which he felt is a harsh characterization that he regrets is included, but he presumes it is based on surveys of the One Stop officials. Director Hunter-Havens confirmed it is, unfortunately, the growing reality of election officials, making it a more challenging role to undertake. Member Kemp said the Board needs to find ways to support election officials to keep this from happening, that the county parties are training their people appropriately, and responding in calm, professional manner and make voters aware of how to voice their concerns to get proper attention. After further discussion, Chair Carter moved to adopt the letter to the County Commissioners with the one change already noted, second by Member Hunter. Motion carried unanimously. c. 2021-2023 Appointment of Chief Judges and Judges Update Director Hunter-Havens reviewed the status of the 2021-23 Chief Judge and Judge appointments. She reported there are three vacancies because of chief judge or judge resignations and four precincts staffed with multiple transfers which NC Gen. Stat. §163- 41(c) does not allow. She called on Deputy Director Dawkins for further explanation. Deputy Director Dawkins reviewed the current vacancies due to resignations: • CF02 judge, non-resident transfer Democrat, due to distance from residence • H04 chief judge, non-resident transfer Democrat, now a full-time Elections staff member • H10 chief judge, non-resident transfer party(?), hold-over appointee to allow room for a resident appointment Notice of the vacancies will be sent to the county parties to present their recommendations to fill these positions, following the same process as the 2021 appointments. The Board will consider the recommendations at the next scheduled meeting. Draft Board Minutes – 02/15/2022 P a g e | 7 Deputy Director Dawkins reviewed the four precincts where multiple non-resident transfers are serving, arising from hold-over transfer appointments in W08 and a move out of the precinct so that all three officials are non-resident transfers. Precinct W13 had hold-over non-resident transfers serving as chief judge and judge. Precinct W03 had two non-resident transfer officials due to a data entry error that misidentified a judge’s home precinct incorrectly as W03 instead of M03. And finally, W24 had two non-resident hold-over transfers from the previous term who have not served since 2018. She has reached out to the State Board of Elections (SBE) for guidance on how to proceed on the precincts with multiple transfers. The three vacancies resulting from resignations do not require further SBE guidance. Director Hunter-Havens said several new applicants have contacted the office stating they have been appointed by their party. She has clarified with them that, while their party may have nominated them to serve, the Board will make those appointments. They are encouraged to submit applications, sign up for information sessions, and complete the on-boarding process. The application deadline is March 1 and the last date to complete on-boarding is April 1. Chair Carter asked if County Human Resources is managing the volume of applicants. He understands the applying election officials are limited to one day each week to submit their employment forms. Member Kemp asked if that schedule constrains the hiring process. Deputy Director Dawkins said the current schedule is adequate for this election but will need additional time slots for a larger election, such as a presidential election year. HR has responded to the needs as asked. Deputy Director Dawkins described the administrative steps in the on-boarding process for new election officials. Member Kemp made note of the March 1 application deadline and the Board next meets March 15. Will that schedule create the necessity of assigning officials for the primary? Director Hunter-Havens said that if the applicants have completed on-boarding, the timing will be fine. Member Kemp asked whether the Board should consider holding a special meeting before the March 15 meeting. The Director said that the Board is making the appointments from the pool of election officials. She is focused on building out that pool so that the Board and the parties have more choices. Member Miller said that it is helpful that the deadlines are now clearer both to the parties and the Board. Deputy Director Dawkins clarified that March 1 is the last date to apply and March 11 is the last scheduled information session. Chair Carter reported for the record that Director Hunter-Havens and Deputy Director Dawkins have met with the county party officials to explain the process and provide the necessary information. The Director said her message to the parties is to help their people decide what role they wish to serve in elections. If they want to represent their party, they should serve as observers and electioneers. If they are willing and able to be nonpartisan, then serving as an election official is an option. Chair Carter asked about the resigned judges and whether their replacements are his appointments as Chair. Director Hunter-Havens said that is an option under N. C. Gen. Stat. §163-41(d), but the Board’s past practice is appointment by the Board. He asked if the county Democratic Party’s list submitted last fall remains valid, or must they resubmit Draft Board Minutes – 02/15/2022 P a g e | 8 it? Director Hunter-Havens said their list should be resubmitted with the focus as much as possible on nominating residents of the precinct. Then if an official drops out close to election day, the option to assign a nonresident transfer official is available. Chair Carter said that he now understands this necessity much better, that it jams up the Board and staff if residency is ignored. The Director said that staffing is complicated by the reluctance of experienced assistants to move into the chief judge and judge positions in the current political climate. Discussion followed about the issues arising from hold-over appointees declining assignment but not resigning so that a replacement may be appointed. Declining assignment is not the legal equivalent of resigning the appointment. Chair Carter said that Deputy Director Dawkins has made more than sufficient efforts to reach the appointed officials. Member Hunter said since this Board is waiting for further guidance from the State Board, we are not able to act at this meeting. She is not in disagreement with what is being said but questions the value of the discussion when action is not imminent. Chair Carter is not proposing acting in this meeting, but there is benefit in some discussion now for a couple of reasons. We may not get State Board guidance before the March meeting. We would benefit from some consistent approaches that would help navigate the multiple transfer officials’ situations. The Board has the power to remove officials, but it is not to be taken lightly. There is a procedure to remove a precinct official. In a situation where someone is appointed and remains in that position until their successor is appointed and qualified, we can declare a vacancy and the Chair makes the appointment. But the easier route is for the Board to agree unanimously on appointing someone to fill the position and avoid the holdover situations. Director Hunter-Havens reminded the Board that the overrepresentation of transfers in certain precincts is a product of hold-over appointees where the Board could not agree unanimously on a replacement appointee. These transfers were administrative assignments to assure full staffing of the precinct. Chair Carter asked if the concerned officials have been contacted to explain the situation and asked for their resignation. Deputy Director Dawkins said she has not addressed the concern with them pending clear guidance from the State Board, but at the direction of the Board would reach out to them to discuss alternative assignments and resignations as appropriate. Chair Carter said that would be a good common-sense approach to take and does not think the State Board would object to that approach. Member Kemp moved to ask the two voided appointed transfer officials in W08 and W13 to resign, due to their non-resident status which was discovered after the election, to allow the Board to appoint precinct residents and freeing them to serve in another position or assignment, second by Chair Carter. Motion carried unanimously. Member Kemp asked a question about the plausibility of the policy the Board is following by recognizing the precedence of a transfer-holdover appointment which invalidates a later transfer appointment in the same precinct. He referred to the hold-over transfer Republican Judge in W24 and the Board’s subsequent appointment of a transfer Chief Judge in the same precinct. Chair Carter said that while he may tend to agree with that but wants to wait for the pending guidance from the State Board. Deputy Director Dawkins pointed out that the same situation applies to the transfers the Board and Chair Draft Board Minutes – 02/15/2022 P a g e | 9 appointed to W08 and W13. Chair Carter said that is not the only way to read, interpret or apply NC Gen. Stat. §163-41(a). Member Kemp said he is trying to show the implausibility of the policy set out in section (a), that an appointee serves until a successor is appointed as a constraint on section (d) when there is a demonstrated vacancy. Chair Carter asked Member Kemp to clarify what he is saying. Member Kemp said section (a) says that an appointee serves until their successors are appointed and qualified. Because the Board is treating that as a higher standing than the definition of a vacancy when the appointee is unable to serve for a particular election, the Board is unable to appoint someone under section (c) or (d) as a transfer for those precincts. Until we replace them, the appointee holds the transfer slot. We are not able to replace them until we can find an in-precinct resident, and we can’t free up the transfer slot to appoint a qualified judge or chief judge. Chair Carter gave as an example the appointment he made last September in W13 under section (d) as Chair. He appointed a non-resident transfer to the vacancy before realizing that the appointed chief judge is a hold-over non- resident transfer. He is understanding Member Kemp to say that his appointment was void when it happened or should be treated as void at the time the mistake was realized. In either case, the judge position is vacant. Member Kemp said he is trying to say that the chief judge position should be considered a vacancy because the appointee has not served in several elections. We are emphasizing that an appointee serves until their replacement is appointed and qualified as a higher priority than filling the slot. The position is technically vacant because the appointee has not served in three or four years. Chair Carter said the position is de facto vacant for all practical purposes but legally, de jure, it is not vacant. Member Kemp agreed with that description. Member Kemp said the phrase in section (d), “other cause”, should include the de facto vacancy. Chair Carter said he is not opposed to that view, but wants to hear from the State Board before going down that road. Member Kemp said that “if for any other cause there be a vacancy”, not serving for three or four years should be sufficient cause to declare the position vacant. Chair Carter said that when he discussed the appointment he made in the fall with each Board member individually, everyone was comfortable with that view, but would like clarification from the State Board before acting now. Member Kemp said he is hopeful that the discussion today is productive of appointing judges on March 15 by unanimous consent so that appointments are made. If some of these questions are not answered well, he fears the Board will have to have a special meeting up against the deadline. Chair Carter said he would like to avoid a special meeting as well. Member Kemp wants the Board to appoint the judges or have the Chair appoint them under section (d). He called on the other Board members for their thoughts. Member Bryan said he has nothing to add. He thought Member Kemp summarized the issue well. He thinks the Board should look for opportunities to correct the problem. Holdovers not resigning makes election administration less effective. The analysis makes sense to him, and he is not hearing objections to it. Member Hunter said with another attempt to contact these officials, something actionable may become apparent. Deputy Director Dawkins said she has made multiple attempts to reach them by phone and email without success. Member Bryan said that reasonable efforts have been made. He wondered whether the appointees understand what they are doing by not showing up. Draft Board Minutes – 02/15/2022 P a g e | 10 Director Hunter-Havens said the key point is they are in this position after serving through their term. They become hold-overs because they accepted appointment for the previous term and the party and/or Board is not able to appoint their successors, which is not their responsibility. Chair Carter agreed, some of these holdovers remain in place because the Board struggled with the appointment process and could not reach unanimous agreement on appointing their successors. While we have whittled down the number of such situations, we have some administrative issues that we need to tidy up. Chair Carter said, pending State Board guidance, he would be inclined to a process where the staff sends a certified letter on March 1 to Diane Brown, Mimi Marquis, Jeanene Mathews and Carol Barclay, politely worded, proposing Board removal, thanking them for their service and inviting them to attend the March 15 meeting if they do not wish to be removed. Deputy Director Dawkins said that she has heard from Diane Brown who said she is willing to continue serving in W29. Since she is willing to serve in that capacity, it may not be appropriate to send her that kind of letter. Director Hunter- Havens said it is difficult when we start talking about removing an official, which requires establishing clear grounds for removal and a hearing before removal. She is looking for State Board guidance as to what those steps must look like. Member Bryan asked, out of 100 counties in this state, are we the only board that is struggling with these appointments? Director Hunter-Havens said she would be glad to get that information from the State Board. Chair Carter said we can decide on a tentative procedure to undertake, contingent on receiving guidance from the State Board, then we can send the letters March 1st, and if we then receive guidance from the State Board that halts that process, the Board can meet on March 15th as scheduled and simply not take any further action. If the State Board does not give guidance or greenlights this process, we have checked all the boxes necessary to replace some or all hold-over appointees and increase flexibility to appoint precinct residents when available. Deputy Director Dawkins asked if she was also to reach out by phone and email to these appointees? Chair Carter said that is the question on the table. Member Kemp said since we have tried that unsuccessfully, a certified mailing seems the way to go now to verify receipt and assure a response. He said they should be treated like an inactive voter who is removed after failing to respond to required attempts to reach them. He contends the position is vacant and should be addressed under section (d) when the appointee declines to serve. Chair Carter asked member Kemp if he is proposing not a semi-formal removal process but rather the Board apply section (d)’s “any other cause” clause and declare the position is vacant. Member Kemp said that is what he is saying. Chair Carter said that is not a bad proposal, but it was rejected by the State Board as an approach in the fall. He wants to get to the place where there is only one transfer official in a precinct. Member Miller said it seems logical that is someone has not served in three or four years and is not in contact with the Board, the Board should be able to deem that position vacant and remove them. It appears we are close to agreement on that process, but he is not clear what we are achieving with such a process which is the reason he has not said much. Chair Carter said his purpose is to set a tentative course of action because we may not hear timely from the State Board on a course of action. It may be easier for the State Draft Board Minutes – 02/15/2022 P a g e | 11 Board to approve or disapprove a suggested process than to solve the process for us. He asked Director Hunter-Havens for her thoughts. She said we can propose a remedy, but her concern is that she does not want removing someone to taint someone’s service when the only reason they are in this situation is because the Board did not agree on appointing a successor for the 2021-2023 term. She has shared in a follow up ticket with the State Board what the Board has rebuked us for, relating what proposals the Board has discussed, asking that the State Board answer the original question, asking to advise whether these proposals are possible remedies, and advise what the next best step is. Chair Carter asked the Directory if the State Board responded with agreement to remove the hold-over official and declare the position vacant, then the Board would proceed to apply that process to positions held by Mimi Marquis (H04), Jeanene Matthews (W24), and Carol Barclay (W24). Member Kemp said we would also want to reappoint Diane Brown since she has agreed to continue serving in W08. Chair Carter moved that the Director propose to the State Board that this office send a letter by certified mail to Mimi Marquis, Jeanene Matthews, and Carol Barclay, unless the State Board says not to send such a letter. The letter proposes to remove them and declare the appointment vacant at the March 15 meeting, and invite the official to appear at that meeting. Member Kemp said he prefers to send a letter revoking their appointment rather than just doing our job. Deputy Director Dawkins said she would prefer giving the official the opportunity to respond by phone or email, allowing her to ask the person to resign if not willing or able to serve, to thank them and express appreciation for their service. It allows for a different tone and one more chance to respond in a way that also acknowledges and values their previous service. Taking the approach of a removal feels back-handed, while she also understands it is a part of this process and it needs to be. She asks for time to take this approach while awaiting response from the State Board with better guidance. Member Kemp asked Ms. Dawkins whether she can confirm that the officials are receiving the previous emails and calls. She said she cannot say one way or the other. Member Kemp said that is part of the challenge as he sees it, as email addresses and phone numbers change. Deputy Director Dawkins said she has not checked for phone numbers available outside of the Precinct Officials database, such as in their voter registration information. She can do that as part of this outreach to the officials. Out of respect for the service they have provided, one more contact is called for. Chair Carter withdrew his motion and called for any further discussion. Hearing none, he continued with the agenda. 5. OLD BUSINESS • Approval of Minutes of 9/14/2021 (tabled from earlier in this meeting) Chair Carter asked if the Board wanted him to go through his proposed revisions of the 9/1/2021 and 9/14/2021. Member Kemp said, while he realized Old Business comes before New Business, he would prefer to ensure time to discuss Observers. Member Hunter asked Chair Carter to email his proposed changes. Chair Carter moved to table the minutes of the 9/1/2021 and 9/15/2021 meetings to the March 15 meeting, second by Member Bryan. Motion carried unanimously. Draft Board Minutes – 02/15/2022 P a g e | 12 6. NEW BUSINESS • Observers Chair Carter called on Member Kemp to address the item he requested be placed on the agenda. Member Kemp deferred to Director Hunter-Havens to speak to the materials presented in the agenda packet to clarify what is there. Director Hunter-Havens said she included the guidance document in use since at least 2011 and given to observers. During the 2021 election a discrepancy was brought to her attention between what is contained in the guidance document and what is stated in the statute and North Carolina Administrative Code. She has communicated this information to the State Board, which plans to review and revise the guidance document for this and all election-related processes, including management of observers and electioneering at all in-person voting sites in time for the 2022 elections. During the 2021 election, there were numerous challenges reported by election officials and new levels of threats and intimidation of officials who report being followed to their vehicles and increased levels of disrespect shown to officials. She has pointed out the concerns voiced by the Republican Party to the State Board’s legal team and our liaison. She expects an updated numbered memo addressing these issues. Member Kemp asked the Director which are the most significant discrepancies in the current guidance. She said it is whether observers can enter the polling place during opening. She has pointed that out to the State Board. Any revisions made by the State Board to these administrative guidance documents will be adopted and implemented in this office. Member Bryan asked if staff is not required to follow the statute. The Director said the county board is required to follow the administrative guidance issued by the State Board of Elections. Chair Carter said the Republican party representatives are particularly interested in viewing the machine opening procedures during opening of the polls and that the bin is empty. He said he is surprised this is the first time this question has come up. The Director said there are various procedures, checks and balances in place to ensure that One Stop reconciles day to day between the numbers on the tabulators against voter history, which have been in use successfully for years. Member Bryan has heard the various things that party representatives want to see or not see during opening of the polls, but the statute does not allow some of those things and the statute is the statute and an administrative body cannot do much about that. He asked how long the state Board has had this question before them. The Director communicated these concerns to the State Board during the municipal election, which advised they are comprehensively reviewing all the in-person voting guidance documents and feedback from the counties. Member Bryan said he is not happy about the amount of time it is taking to reissue these Draft Board Minutes – 02/15/2022 P a g e | 13 documents. He has seen prior odd things and is not reassured. They could at least acknowledge the discrepancy and assure it is going to be corrected. Member Kemp said the summary in the agenda packet does not adequately describe his concern because it does not reference the specific part of the Administrative Code that says any member of the public may see the opening of voting equipment. An observer is a member of the public before the polls open and should be able to see the zero tape and the bin is empty. Otherwise, observers are not being allowed to observe a proper election. He has a motion he would like the Board to vote on which is in his email. Member Kemp moved that, pursuant to 08 NCAC 04.0304, second sentence, the New Hanover County Board of Elections request the State Board of Elections modify the training materials and guidance provided to directors of elections to empower and approve election observers to enter the voting enclosure to observe the opening activities of the polls, in particular the opening of the DS200s or applicable ballot tabulator. Chair Carter asked Director Hunter-Havens if that motion is out of order. The Director said she is not sure what she is being asked to speak to. Chair Carter said out of order may not be the best way to say it. The Director said that she has communicated that specific concern to the State Board in several emails. Chair Carter said it does not seem an appropriate way to make a request. Director Hunter-Havens said the referenced discrepancy has been communicated to the State Board in several emails. Certainly, the Board can take that action and she will communicate it to the appropriate representative. Member Kemp asked if the code section was included in the previous communications. The Director said it was, because that was the initial question: at what point is a person a member of the public and at what point an observer? Member Kemp said he did not recall that conversation. The Director clarified she is referring to her conversations with the State Board. That will be part of their review of the guidance to all county boards. Chair Carter said he is not averse to a motion that asks the State Board to revise the guidance consistent with the administrative code, and he is not averse to administering this code section. The Director has communicated this several times, but if the Board wants to lend its support to those communications to say we feel the same way. He is interested in hearing further discussion. Member Hunter does not see it as necessary. Secretary Miller said he does not see the necessity either and he did not receive the email with the motion now presented and it was not in the agenda packet. Member Kemp said he requested its inclusion in the agenda a week in advance and it was not included. Secretary Miller said that his point is that he did not have the written motion. He would not oppose some wording like what is proposed at the next meeting. He is not comfortable voting for it with only having it read to him. Chair Carter said Member Kemp’s email went only to him and the Director. Director Hunter-Havens said her perception was it was a motion to be made at the meeting but not that it was to be included in the agenda packet. Since the whole Board was not bcc’d on the email, she did not see it as matter to be shared by her with the whole Board. It becomes difficult to know what is expected when receiving emails from individual Board members that are copied only to the Chair and not all Board members. She was asked to add it to the agenda which she did, following the procedural rules adopted by the Board. How the Board proceeds with the motion is up to the Board to decide. Chair Carter said he Draft Board Minutes – 02/15/2022 P a g e | 14 interpreted the request the same way the Director did. He did not realize member Kemp was asking to include the motion in the agenda packet. Member Kemp said he sent the email January 28 and thought he was following the procedure set by the Board. Chair Carter said it was included. Member Kemp said there is no mention of the referenced NCAC code section. He did not think the item was responsive to his request but he wanted to hear the Director’s explanation. This is why he raised the question before approving the agenda. The Director said if she missed the exact section of the Code, she apologizes. What is referenced are the two main sections of the statute, NC Gen Stat. §163-45, and the Administrative Code, 08 NCAC 20.0101, used in the guidance. Member Kemp said he refers to the specific section, 08 NCAC 04.0304, that speaks to the opening of the polls. Chair Carter said it is a fair motion. He said that he needed a short break and handed the gavel to Secretary Miller at 7:24 p.m. Director Hunter-Havens asked that, when she sends the agenda packet to the Board on the Friday before the meeting, if she missed something, to please let her know that so she can correct it. It is more difficult if it is brought up during the meeting. It was not an intentional omission on her part. Secretary Miller said we have a motion on the floor and a second, though unless I am mistaken, the motion was read to the body. He called for any discussion or motions to amend. Member Hunter suggested waiting for Chair Carter to return. Chair Carter returned to the meeting at 7:25 p.m. He said he is comfortable with a simple motion along the lines of “Dear State Board, please revise the guidance consistent with 08 NCAC 04.0304 prior to the primary.” He was expecting to discuss it tonight, then draw up a formal resolution, so the Director could send them something instead of paraphrasing an oral motion. The Director said she can send what the Board chooses to do tonight, followed by a copy of the minutes. The format of the message will not affect the action they take. She will send it first thing in the morning, then follow it up with the minutes once approved by the Board. That message has been communicated quite clearly to the State Board. Member Bryan asked, when you say the State Board, to whom are you directing the request? The Director said it depends on the matter, she communicates with our liaison, Lauren Hines, sometimes the legal team, which is the General Counsel and Associate General Counsel. Guidance is written by a team including business, administrative and legal staff. Chair Carter asked that a copy of this communication to the State Board be sent to the Board members. Chair Carter called on Member Kemp to restate his motion. Member Kemp moved that, pursuant to 08 NCAC 04.0304, second sentence, the New Hanover County Board of Elections request the State Board of Elections modify the training materials and guidance provided to directors of elections to empower and approve election observers to enter the voting enclosure to observe the opening activities of the polls, in particular the opening of the DS200s or applicable ballot tabulator, second by Chair Carter. Chair Carter moved to amend the motion to read as Dear State Board, the New Hanover County Board of Elections respectfully requests that you revise the written guidance and training materials issued to directors so that it is consistent with the Administrative Code, in particular section 08 NCAC 04.0304.” that is the language he suggests. Member Kemp seconded the motion. Chair Carter called for any further discussion. Hearing none, he called for Draft Board Minutes – 02/15/2022 P a g e | 15 the vote on the amendment. Motion to amend carried 4 to 1, Chair Carter, Secretary Miller, Members Bryan and Kemp voting aye, Member Hunter voting no. Chair Carter called for further discussion of the motion as amended. Hearing none, he called the vote on the motion as amended. Motion as amended carried 3 to 2, Chair Carter and Members Bryan and Kemp voting aye, Secretary Miller and Member Hunter voting no. 7. GENERAL DISCUSSION Chair Carter called for discussion among Board members of other issues or information. Secretary Miller said he wanted to go back to the Public Comment session to confirm something he heard. He heard a member of the public and the GOP request to see absentee ballot request forms, including the last four numbers of social security numbers and/or drivers license numbers, and dates of birth. They were told that is confidential information, but they still want to see the forms with that information. He asked if he heard that correctly? Chair Carter said that information is confidential and can be redacted, but the documents are not useful for the requestors’ intended purposes. Member Kemp said, as a member of the Board, if it is done in the context of a Board meeting, it is permitted, as he understands it, but cannot write anything down, take no notes, only see the actual applications. Director Hunter-Havens said that the guidance from the State Board is that the only way confidential data can be exposed to or shared with Board members is in the context of legitimate board business being conducted that requires that, such as a voter challenge hearing or an absentee ballot challenge hearing. The Board does not approve absentee ballot request forms. That is not one of the Board’s responsibilities. That is done through the software program. The guidance from State Board Associate Counsel Paul Cox is that the Board must vote to allow any member to see these confidential documents because it is a highly irregular request. Chair Carter added that there is a public records request for these documents in unredacted form, and Member Kemp has requested to see them as a Board member. It was discussed and voted on back in October. Director Hunter-Havens said that review involved redacted forms. The Board must specifically authorize review of unredacted forms because that is an irregular request. Without putting words in anyone’s mouth, Chair Carter said member Kemp made a motion that he thought would give him access to the unredacted forms and the Board approved that motion. Director Hunter-Havens understood it as a different level of access. Director Hunter-Havens said, according to the guidance from the State Board legal team, the only way such a request can occur is for the request to come back before this Board and the majority of the Board votes to delegate its authority to an individual member because of official business before this Board. Right now, the request needs to specify what that official board business is, beyond the particular interest of an individual Board member or political party. Member Kemp said the request at the time was related to the validity of applications for absentee ballots and timely requested during the absentee period. What he was asking to do is to see the hand-written applications to verify to see that the information related to identity appeared to be in the same hand- writing as the rest of the application. Chair Carter said we can discuss it, but this is not the time to take any action on such a request. Secretary Miller said his question is answered. Member Kemp said another matter was deferred from the public comments regarding writing letters to the party chair encouraging training on proper decorum in polling places Draft Board Minutes – 02/15/2022 P a g e | 16 and proper channels to report misconduct or conflict. Member Bryan said while we were talking about the incidents of harassment, he was also thinking about conduct from voters. Director Hunter-Havens said the occasional incident arises from a voter being told they must vote provisionally, but that is not the majority of reported incidents. More complaints arise from party-affiliated observers or party or partisan electioneers or runners. Chair Carter said that is a good idea. He will draft a letter from the Board along those lines, in consultation with the Director. Chair Carter asked if the county Board of Elections has offered training for party- appointed observers. The Director said no, this is a nonpartisan office. The Board members signed the letter to the County Commissioners supporting the requested budget enhancements for the County Board of Elections. ADJOURNMENT Member Hunter moved that the meeting be adjourned at 7:44 p.m. Motion carried unanimously. The next Board meeting is scheduled to be held on March 15, 2022, at 5:15 p.m., at the Board of Elections office, Long Leaf Room, 1241A Military Cutoff -Road, Wilmington, NC APPROVED BY: RESPECTFULLY SUBMITTED: _______________________________ _____________________________ DERRICK R. MILLER RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Draft Special Meeting New Hanover County Board of Elections April 12, 2022 Subject: Public Comment Summary: This is an opportunity for members of the public to provide comment on elections-related matters. Each commenter will be limited to two minutes with a twenty-minute limit total for all public comments. Board Action Required: Discuss as necessary Item # 2 Item # 2 Draft Special Meeting New Hanover County Board of Elections April 12, 2022 Subject: Review of Absentee Ballot Applications Applicable Statutes and/or Rules N.C. Gen. Stat §§ 163-229(b) and 163-230.1(f), NCSBOE Numbered Memos 2021-03, 2021-07 and 2020- 29 Summary: By statute, county boards of elections are required to meet beginning on the fifth Tuesday prior to each election to review and take action on upon absentee ballot applications. At each absentee board meeting, county boards will need to either approve or deny the absentee applications. All returned absentee ballot applications for the 2022 Primary Election must include the following: 1. The voter’s certification of eligibility to vote the enclosed ballot. 2. The certification of two witnesses, to include their residence address, or one public notary. 3. The certification, to include residence address, of any individual that assisted a voter in accordance with N.C. Gen. Stat. §163-226.3. Per Numbered Memo 2021-03, there are three different types of deficiencies associated with absentee ballot applications: 1) deficiencies that can be cured by sending the voter a certification, 2) deficiencies that require the ballot to be spoiled, and 3) deficiencies that require additional board review and action. Deficiencies that can be cured: • Missing voter signature • Voter signed in the wrong place Deficiencies that require the ballot to be spoiled: • A witness or assistant did not print name (If the witness or assistant’s signature is legible such that the name can be determined, the absentee ballot application is not deficient and the ballot should not be spoiled, absent any other deficiency) • A witness or assistant did not print address (Failure to print witness zip code does not invalidate the application. Failure to include the city or state in the address does not invalidate the application if the county board of elections can determine the correct address) • Missing witness or assistant signature • Witness or assistant signed in place of voter signature (Otherwise, if all witness or assistant information is present on the application but not on the designated lines, then the application is not deficient, and the ballot should not be spoiled absent any other deficiency) • If container-return envelope arrives at the county board of elections office unsealed or appears to have been opened and re-sealed • The envelope indicates the voter is requesting a replacement ballot Item # 2 Item # 3 Draft Deficiencies that require board action: • Deficiency is first noticed at a board meeting • No ballot in a container-return envelope • More than one ballot in a container-return envelope • Two voter’s ballots and container-return envelopes are switched County boards of elections take preparatory steps to expedite review of absentee ballot applications by the board. After intake, staff must inspect the absentee ballot application on each container-return envelope and make an initial determination as to whether the envelope was properly executed. If a deficiency exists, they must follow the cure process outlined in Numbered Memo 2021-03. Staff should also perform an initial sort of ballot envelopes into categories upon initial review and to present those recommendations to the board at each absentee board meeting. Those categories may include designations for recommended approval, recommended disapproval, envelopes awaiting a cure certification, and those that staff have questions about that require deliberation by the board. The board may by majority vote accept staff’s recommendation for absentee ballot envelopes that staff have reviewed and recommended for approval. The delegation must include a process for the board to spot-check the envelopes to ensure accuracy and consistency. However, the board must individually review all ballot envelopes that: (1) have been recommended for disapproval by staff, (2) have a cure certification associated with that ballot envelope, or (3) where staff need further guidance from the board as to whether the envelope was properly executed. If the quantity of absentee by mail ballots approved by the board is low for the first one or two meetings, the historical practice of many county boards is to securely store the approved container- return envelopes, with enclosed ballots, for a future absentee board meeting closer to Election Day when the preparatory steps for the optical scanning of ballots will be completed at a public board meeting under the supervision of the board. At the meetings when ballots are optically scanned, a bipartisan duplication team is required to be present at absentee board meetings where the optical scanning of the ballots takes place in the event a ballot needs to be duplicated to successfully scanned by the central scanner. In addition, all envelopes and ballots should be reconciled at the end of the meeting with the number of ballot envelopes approved at the meeting equal in number to the number of ballots counted by the tabulator. The county board of elections staff should record the count on the tabulator at the start and end of each absentee meeting. Document/s Included: NCSBOE Numbered Memos 2021-03, 2021-07, and 2020-29, Absentee Poll Book and Reconciliation Log Sheet (Provided at meeting) Board Action Required: Discuss as necessary and action required Draft Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or(866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2021-03 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Absentee Container-Return Envelope Deficiencies DATE: June 11, 2021 This numbered memo replaces Numbered Memo 2020-19, which was first issued on August 21, 2020 and subsequently revised and reissued on September 22, 2020, and October 17, 2020. The State Board is required to provide a cure process for voters whose absentee container-return enve- lopes contain certain deficiencies. There were two separate court orders requiring a cure process. The Consent Judgment in NC Alliance v. State Board of Elections, No. 20-CVS-8881 (Wake Co. Sup. Ct. Oct. 2, 2020), which formed part of the basis for the revised 2020 memo, was limited to the 2020 general election. The preliminary injunction in Democracy NC v. State Board of Elec- tions, 476 F.Supp.3d 158 (M.D.N.C. Aug. 4, 2020), was not limited to a particular election. This numbered memo revises the cure process that was first established for the 2020 general election and applies to all elections going forward. County boards of elections must ensure that the votes of all eligible voters are counted using the same standards, regardless of the county in which the voter resides. This numbered memo directs the procedure county boards must use to address deficiencies in ab- sentee ballots. The purpose of this numbered memo is to ensure that a voter is provided every opportunity to correct certain deficiencies, while at the same time recognizing that processes must be manageable for county boards of elections to timely complete required tasks.1 1.No Signature Verification Verification of the voter’s identity is completed through the witness requirement. The voter’s signature on the envelope shall not be compared with the voter’s signature in their registration 1 This numbered memo is issued pursuant to the State Board of Elections’ general supervisory authority over elections as set forth in G.S. § 163-22(a) and the authority of the Executive Direc- tor in G.S. § 163-26. Draft 2 record because this is not required by North Carolina law.2 County boards shall accept the voter’s signature on the container-return envelope if it appears to be made by the voter, meaning the sig- nature on the envelope appears to be the name of the voter and not some other person. Absent clear evidence to the contrary, the county board shall presume that the voter’s signature is that of the voter, even if the signature is illegible. A voter may sign their signature or make their mark. 2.Types of Deficiencies Trained county board staff shall review each executed container-return envelope the office re- ceives to determine if there are any deficiencies. County board staff shall, to the extent possible, regularly review container-return envelopes on each business day, to ensure that voters have every opportunity to timely correct deficiencies. Review of the container-return envelope for deficien- cies occurs after intake. The initial review is conducted by staff to expedite processing of the envelopes. Deficiencies fall into two main categories: those that can be cured with a certification and those that cannot be cured. If a deficiency cannot be cured, the ballot must be spoiled and a new ballot must be issued, as long as the new ballot is issued before Election Day. See Section 3 of this memo, Voter Notification. 2.1. Deficiencies Curable with Cure Certification (Civilian and UOCAVA) The following deficiencies can be cured by sending the voter a cure certification: •Voter did not sign the Voter Certification. •Voter signed in the wrong place. The cure certification process applies to civilian and UOCAVA voters. 2.2. Deficiencies that Require the Ballot to Be Spoiled (Civilian) The following deficiencies cannot be cured by certification, because the missing information comes from someone other than the voter: •A witness or assistant did not print name.3 However, if the witness forgot to print their name but the witness’s or assistant’s signature is legible such that the name can be deter- mined, the container-return envelope is not deficient and the ballot shall not be spoiled, absent any other deficiency. 2 See also Numbered Memo 2020-15, which explains that signature comparison is not permissi- ble for absentee request forms. 3 If the printed name is readable and on the correct line, even if it is written in cursive script, for example, it does not invalidate the container-return envelope. Draft 3 •A witness or assistant did not print address.4 •A witness or assistant did not sign. •A witness or assistant signed on the wrong line. Where the witness or assistant signed in place of the voter’s signature, that deficiency cannot be cured and requires the ballot to be spoiled. Otherwise, if all required information from the witness or assistant is present but not on the designated line for each (for example, the witness or assistant printed their name on the address line, printed their address on the name line, and signed), the container-return envelope is not deficient and the ballot shall not be spoiled, absent any other deficiency. •Upon arrival at the county board office, the envelope is unsealed or appears to have been opened and re-sealed. •The envelope indicates the voter is requesting a replacement ballot. If a county board receives a container-return envelope with one of these deficiencies, county board staff shall spoil the ballot and reissue a ballot along with a notice explaining the county board office’s action, in accordance with this numbered memo. 2.3. Deficiencies that require board action Some deficiencies cannot be resolved by staff and require action by the county board. These in- clude situations where the deficiency is first noticed at a board meeting or if it becomes apparent during a board meeting that no ballot is in the container-return envelope, more than one ballot is in the container-return envelope, or two voters’ ballots and container-return envelopes were switched. If the county board disapproves a container-return envelope by majority vote in a board meeting, it shall proceed according to the notification process outlined in Section 3. 4 Failure to list a witness’s ZIP code does not invalidate the container-return envelope. G.S. § 163-231(a)(5). A witness’s or assistant’s address does not have to be a residential address; it may be a post office box or other mailing address. Additionally, if the address is missing a city or state, but the county board of elections can determine the correct address, the failure to list that information does not invalidate the container-return envelope. For example, if a witness lists “Raleigh 27603,” you can determine the state is NC, or if a witness lists “333 North Main Street, 27701,” you can determine that the city/state is Durham, NC. If both the city and ZIP code are missing, staff will need to determine whether the correct address can be identified. If the correct address cannot be identified, the envelope shall be considered deficient and the ballot spoiled in accordance with Section 3. See Numbered Memo 2020-29 for additional information regarding address issues. Draft 4 3. Voter Notification 3.1. Issuance of a Cure Certification or New Ballot If there are any deficiencies with the absentee envelope, the county board of elections shall contact the voter in writing within one business day of identifying the deficiency to inform the voter there is an issue with their absentee ballot, enclosing a cure certification or new ballot, as directed by Section 2. The written notice shall also include information on how to vote in-person during the early voting period and on Election Day. The written notice shall be sent to the address to which the voter requested their ballot be sent. The outside of the envelope containing the new ballot or cure certification shall indicate that it contains official election mail, unless it is not possible due to the use of a specialized USPS or commercial carrier service envelope. If the deficiency can be cured and the voter has an email address on file, the county board shall also send the cure certification to the voter by email. If the county board sends a cure certification by email and by mail, the county board should encourage the voter to only return one of the certi- fications. If the voter did not provide an email address but did provide a phone number, the county board shall contact the voter by phone to inform the voter that the county board has mailed the voter a cure certification. If the deficiency cannot be cured, and the voter has an email address on file, the county board shall notify the voter by email that a new ballot has been issued by mail to the voter. If the voter did not provide an email address but did provide a phone number, the county board shall contact the voter by phone to inform the voter that the county board has issued a new ballot by mail. A county board shall not reissue a ballot on or after Election Day. If there is a curable deficiency, the county board shall contact voters up until the day before county canvass. 3.2. Receipt of a Cure Certification The cure certification must be received by the county board of elections by 5 p.m. the day before county canvass. The cure certification may be submitted to the county board office by fax, email, in person, or by mail or commercial carrier. If a voter appears in person at the county board office, they may also be given, and can complete, a new cure certification. There is not a postmark re- quirement for cure certifications returned by mail – the cure certification must be received by the deadline, not postmarked by the deadline. The cure certification may only be returned by the voter, the voter’s near relative or legal guardian, or a multipartisan assistance team (MAT). A cure certification returned by any other person is invalid. Voters who require assistance in mailing their ballot pursuant to 08 NCAC 18 .0101(a) may also direct that the cure certification be taken directly to the closest U.S. mail depository or mailbox by a person selected by the voter in accordance with the Rule. It is not permissible for a Draft 5 cure certification to be submitted through a portal or form created or maintained by a third party. A cure certification may not be submitted simultaneously with the ballot. Any person who is permitted to assist a voter with their ballot may assist a voter in filling out the cure certification, but the cure certification must be signed by the voter. A wet ink signature is not required, but the signature used must be unique to the individual. A typed signature is not acceptable, even if it is cursive or italics such as is commonly seen with a program such as DocuSign. 3.3 County Board Review of a Cure Certification At each absentee board meeting, the county board of elections may consider deficient ballot return envelopes for which the cure certification has been returned. The county board shall consider together the executed absentee ballot envelope and the cure certification. If the cure certification was timely received and contains the voter’s name and signature and was returned by an authorized person, the county board of elections shall approve the absentee ballot. 4. Late Absentee Ballots Voters whose ballots are not counted due to being late shall be mailed a notice stating the reason their ballot was not counted. Late absentee ballots are not curable. If a ballot is received after county canvass, the county board is not required to notify the voter. Draft Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2021-07 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Deficiencies in Notary Portion of Absentee Application and Certificate DATE: August 31, 2021 This numbered memo explains how county boards of elections should treat technical deficiencies in the execution of the notary portion of an absentee container return envelope (officially called the absentee ballot application and certificate). It replaces Numbered Memo 2020-07. The guidance balances the goal of uniformly applying the law while seeking to not punish the voter for a notary’s inadvertent mistake or error. G.S. § 163-231(a) requires a voter to mark the absentee by-mail ballot in the presence of two witnesses or one notary public, who must sign the container return envelope as witness(es). If witnessed by a notary, the statute requires the notary public to affix their valid notarial seal to the envelope and include the phrase “Notary Public” below his or her signature. State Board of Elections staff consulted with the North Carolina Department of the Secretary of State’s Electronic Notarization and Notary Enforcement Division regarding the validity of an incomplete notarization on the container return envelope. While the Secretary of State’s Office cannot adjudicate an absentee ballot, they provided useful information on how the notary statutes work in conjunction with our election statutes, including that there is a presumption of regularity in the absence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of the notary statutes by the notary.1 The Secretary of State’s Office has requested that notarial errors on the absentee ballot container-return envelope be reported to them. Certain technical errors in executing the notary’s portion of the container return envelope are not considered deficiencies. Other errors are considered deficiencies that require the ballot to be spoiled and reissued in accordance with Section 2.2 of Numbered Memo 2021-03. 1 G.S. 10B-99(a) (relevant portion): “In the absence of evidence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of this Article by the notary, the courts shall grant a presumption of regularity to notarial acts so that those acts may be upheld, provided there has been substantial compliance with the law.” Draft 2 1. Technical Errors That Are Not Considered Deficiencies The following technical errors do not affect the sufficiency, validity, or enforceability of the notarial certificate itself or the underlying document and are not considered deficiencies: • Notary leaves off the name of the voter or misspells the voter’s name; • Notary does not write the expiration date of their commission; • Notary does not include the name of the county or State; • The notary seal is hard to read; • The notary does not include the date the notary witnessed the marking of the ballot; or • A combination of the above.2 2. Technical Errors That Are Considered Deficiencies The following errors in the notarial certificate are considered deficiencies that cannot be cured by certification, and require that the ballot be spoiled and reissued in accordance with Numbered Memo 2021-03: • The notary’s signature is missing. Pursuant to G.S. § 163-231(a)(5), the notary’s signature is required. • The notarial seal is missing altogether or contains missing information. G.S. § 163-231(a) requires the notary to affix a valid notarial seal to the envelope. 2 G.S. § 10B-68 (relevant portion): (a) Technical defects, errors, or omissions in a notarial certificate shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related instrument or document. […] (c) As used in this section, a technical defect includes those cured under G.S. 10B-37(f) and G.S. 10B- 67. Other technical defects include, but are not limited to, the absence of the legible appearance of the notary's name exactly as shown on the notary's commission as required in G.S. 10B-20(b), the affixation of the notary's seal near the signature of the principal or subscribing witness rather than near the notary's signature, minor typographical mistakes in the spelling of the principal's name, the failure to acknowledge the principal's name exactly as signed by including or omitting initials, or the failure to specify the principal's title or office, if any.” G.S. 10B-67: “An erroneous statement of the date that the notary's commission expires shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related record if the notary is, in fact, lawfully commissioned at the time of the notarial act. This section applies to notarial acts whenever performed.” G.S. 10B-37(f): “The failure of a notarial seal to comply with the requirements of this section shall not affect the sufficiency, validity, or enforceability of the notarial certificate, but shall constitute a violation of the notary's duties.” Draft 3 3. Fraud Indicators If there are indications of fraud on the absentee envelope, whether they relate to the notary section or other sections of the envelope, this information should be sent to the State Board’s Investigations Division. Examples of fraud indicators include: • A notary or witness completed multiple applications containing technical errors; • The handwriting for the voter’s signature and witness’s signature appears identical; • The envelope appears to have been tampered with; and • There are stray or suspicious markings on the envelope. Draft Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-29 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Witness or Assistant Address Issues on the Absentee Container-Return Envelope DATE: October 4, 2020 This memo is issued to provide uniform guidance and further clarification on how to determine if the correct address can be identified if the witness’s or assistant’s address on an absentee container- return envelope is incomplete. If No Address If a witness or assistant does not print their address, the envelope is deficient. Missing ZIP Code or City As previously explained in Footnote 3 of Numbered Memo 2020-19, failure to list a witness’s ZIP code does not require a cure. G.S. § 163-231(a)(5). A witness or assistant’s address does not have to be a residential address; it may be a post office box or other mailing address. Additionally, if the address is missing a city or state, but the county board of elections can determine the correct address, the failure to list that information also does not invalidate the container-return envelope. For example, if a witness lists “Raleigh 27603” you can determine the state is NC, or if a witness lists “333 North Main Street, 27701” you can determine that the city/state is Durham, NC. If City and ZIP Code Missing If both the city and ZIP code are missing, staff will need to determine whether the correct address can be identified. If the correct address cannot be identified, the envelope is deficient. If one of the following criteria are met, you can determine the address and the envelope is not deficient: • The witness or assistant’s address is the same as the voter’s address – either because the witness or assistant wrote “same as above” or something similar on the address line or because the partial address provided matches the address of the voter – or it is on the same street as the voter’s address; • The witness’s or assistant’s name and partial address match that of a registered voter in your county in SEIMS; or Draft 2 • The street address is a valid address in your county. You may confirm this using a county GIS website1 or office, or a similar tool. Do not use an online directions tool such as Google Maps, which does not identify whether an address is valid. If there is only a street address and none of the above criteria are met, the county board cannot determine the address and the envelope is deficient. If a P.O. box is listed but the address provided does not include a city or ZIP code, it is not possible to determine the address and the envelope is deficient. 1 https://www.lib.ncsu.edu/gis/counties.html Draft Special Meeting New Hanover County Board of Elections April 12, 2022 Subject: Approval of Minutes Applicable Statutes and/or Rules N.C. Gen. Stat. §§ 163-31(e) and 143-318.10(e) Summary: The revised draft minutes, including Chair Carter’s edits, of the 9/01/2021 and 9/14/2021 meetings are included your packet for review and approval. Board Action Required: Staff recommends approval Item # 4 Draft Board Minutes - 09/01/2021 1 SPECIAL MEETING New Hanover County Board of Elections September 1, 2021 5:15 PM ATTENDANCE Members: Oliver Carter III, Chair Derrick R. Miller, Secretary Russ C. Bryan, Member Lyana G. Hunter, Member Bruce Kemp, Member Staff: Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Joan Geiszler-Ludlum, Administrative Elections Technician Visitors: Sheryl Kelly, Assistant County Manager Public Attendees: Loraine Buker, League of Women Voters of the Lower Cape Fear; Bob Gatewood; Julius Rothlein, Will Knecht, NHC GOP; Ellen Jo Kraemer, Sarah Giachino, Tom Kreamer, Susan Kreamer, NHC GOP. Virtual attendees: 1 OPENING Chair Carter called the meeting to order at 5:17 p.m. The New Hanover County Board of Elections meeting was held in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. All members were present. AGENDA Member Hunter moved adoption of the agenda as submitted, second by Member Bryan. Motion carried unanimously. PUBLIC COMMENT Chair Carter called on the public in-person attendees for their comments or questions, limited to two minutes each. Susan Kreamer asked how many One Stop sites will be open and where are they located? Draft Board Minutes - 09/01/2021 2 Chair Carter noted that there will be one or more sites but not necessarily in precinct polling places. He called on Director Hunter-Havens to respond. There are two plans now pending before the State Board of Elections (SBE), a majority plan and a minority plan, on which action is expected at their September 10 meeting. Both plans include the Board of Elections Paynter Room as one site, the majority plan recommending a second site at CFCC Health Sciences Building and the minority plan recommending a second site at the Senior Resource Center. Will Knecht, Chair of the New Hanover County Republican Party, thanked the Board for appointing his 7 resident nominees to serve as precinct Chief Judges and Judges at their last meeting. He asked for further Board consideration of the remaining 8 non-resident nominees for appointment in the recommended precinct. He understands the requirement that two of the three officials must reside in the precinct. His goal is integrity of elections by assuring bipartisan representation in each polling place. Chair Carter thanked him for providing his nominees for consideration. Seeing and hearing no additional public attendees wishing to comment, Chair Carter closed the Public Comment period. GENERAL DISCUSSION Chair Carter called on the Board Members for their discussion. Member Kemp asked whether SBE had acted on the One Stop plans submitted, noting this is not on their agenda. Chair Carter noted that SBE requires a member to present the plans to their meeting. After discussion, Member Bryan agreed to present the minority plan and Member Hunter agreed to present the majority plan. SBE will consider the plans when they next meet remotely on September 10 at 1:00 p.m. There being no further discussion, Chair Carter closed the General Discussion period. NEW BUSINESS 2021-23 Precinct Official Appointments Chair Carter called on Director Hunter-Havens to clarify what decisions are before the Board. The Director noted that, in their last meeting, the Board appointed two of the five resident names timely received, pursuant to N.C. Gen. Stat. §163-41(c). Specifically, the chair of the NHC Democratic Party (NHCDP) submitted the names of five individuals who were residents of the precinct in which they were nominated to serve. The Board appointed two of them. Similarly, the chair of the NHC Republican Party (NHC GOP) submitted the names of fifteen individuals who were resident of the precinct in which they were nominated to serve. The Board appointed seven of them. The Director explained that under N.C. Gen. Stat. §163-41(c), nominees who are resident of the precinct in which they are nominated to serve are entitled to a higher priority, and the Board may only Draft Board Minutes - 09/01/2021 3 proceed to consider other nominees once it has diligently sought to fill the positions with nominees who are residents of the precinct. The State Board guidance is clear that the next steps are to appoint in the following order by unanimous vote: 1. Those who were not recommended by either party but who are residents of the precinct.; and 2. After diligently seeking to fill the positions with registered voters of the precinct, those who were recommended by the party but are not residents of the precinct (including names the party did not submit by the statutory deadline but may have recommended after that time) and, where possible, the county board must seek and adopt the recommendations of the county chair of the party affected. Chair Carter took exception as to the clarity of the State Board guidance. Member Miller asked whether he received all the emails being referenced going around among the Board members. Chair Carter acknowledged that Member Miller may not have been blind copied on all the emails due to the open meetings requirements. He stated his understanding of §163-41 is that it sets out procedures which are part mandatory and part discretionary. The State Board sees less discretion than what he sees in the statute. He understands the Board made the resident appointments from the party lists and one additional appointment of a non-resident Republican official in place of a non-resident Unaffiliated official in Precinct W08. Director Hunter-Havens stated §163-41 further requires: • In making its appointments, the county board shall assure, wherever possible, that no precinct has a chief judge and judges, all of whom are registered with the same party. • In no instance shall the county board appoint nonresidents of the precinct to a majority of the three positions of chief judge and judge in a precinct. Chair Carter stated he will consider State Board guidance, but will rely on his own interpretation of the applicable statutes. Director Hunter-Havens distributed the County Board of Elections Member Application, at the direction of the State Board, to remind the Board Members of the last bullet point under Section 7, County Board Member Responsibilities, which reads “Complying with all applicable statutes, rules, court orders, and State-Board-issued guidance/memos.” Member Bryan stated in his view that is something added by the SBE and conflicts with the Board Oath of Office. He felt SBE attempted to direct County Boards in 2020 to violate the law in the absentee by mail cure process, to which he objected. Chair Carter concurred and noted what he sees as the internal inconsistency within the statute. He wants to see a higher degree of bipartisanship. He realizes not all agree with Member Kemp’s concerns with considering the voting history to identify party leanings of Unaffiliated nominees for appointment as precinct officials. Without this information, Draft Board Minutes - 09/01/2021 4 it may leave the results of an election vulnerable to challenge as to the integrity of the election, but he is not 100 percent sold that this is a proper approach. Member Hunter stated people register as Unaffiliated for a reason. This proposal makes them affiliated against their will. It is abhorrent to go down that rabbit-hole and insert partisanship where it does not belong and is not what the law says. This partisan division is not valuable nor an efficient use of Board time. Member Bryan stated, while he has questioned SBE guidance in the past, he agrees this is a rabbit-hole, and he does not favor exploring the voting history of Unaffiliated voters in this process. How far back to you go? What is the next litmus test? Getting balance in polling places is desirable but leave that to the party chairs to address. Secretary Miller stated his agreement with Members Hunter and Bryan not to explore voter history. It leads to mere speculation on a voter’s intent and active second-guessing about an Unaffiliated voter’s party affiliation preference. Member Kemp described the scenario where a Republican observer sees a problem, asks to speak with a Republican Judge to report it, and is told there is no Republican Judge assigned to the polling place. Chair Carter stated that is a worst-case scenario to be avoided, noting that the proposed names on the Chief Judge and Judge list are committed to working 100 percent to carry out proper elections, and are vetted and trained to that end. Director Hunter-Havens responded and concurred. Precinct officials take an oath to serve voters in a non-partisan manner. Chief Judges are charged with receiving reports of any concerns observed in a polling place. All precinct officials receive extensive training to perform their assigned roles, and Chief Judges receive additional specific training on polling place management. Member Kemp stated if it were not a concern, the statute would not give this emphasis to the appointment process. Chair Carter said the law requires having both parties represented. Member Hunter stated there is a difference between disliking the law as written and following what the law says. If it is a matter of disliking the law as written, then contact your legislators to address that. We need to staff these precincts for the upcoming election. It is unproductive to argue with the law as written. Member Bryan asked whether any new party chair nominations have been received? Member Hunter noted that the current list of recommended nominations meets all the criteria as listed in the statute. Director Hunter-Havens noted the only deviation is the non-resident nominees. Deputy Director Dawkins worked for months to compile this list of people willing to serve as Chief Judges and Judges. The challenge is that, in the current environment around Draft Board Minutes - 09/01/2021 5 elections, fewer precinct officials are willing to serve in polling place leadership. Deputy Director Dawkins added that the increased use of technology in elections requires technical skill sets in the polling places. Director Hunter-Havens further noted that Deputy Director Dawkins knows all these officials well and gives thoughtful consideration to all recommendations in assembling the precinct leadership teams. Chair Carter recognized the challenges and expressed his appreciation for the staff efforts. Member Miller stated we need to trust the staff’s expertise. The range of this debate is from the most skeptical view that the list presented is adequate, while my view is it is excellent. Chair Carter asked again whether the presented list includes any new names submitted by the party chairs? Deputy Director Dawkins noted that the names highlighted in yellow indicate the party chair nominees that were previously approved. She reviewed precinct official survey responses received after the deadline, resulting in one change in Precinct W30 where a resident Republican judge replaces a resident Unaffiliated judge who appeared on the previous list. Chair Carter noted that a question has been raised about the voter registration in this county of the non-resident Unaffiliated Chief Judge nominee for Precinct H10, Karl Ricanek. Deputy Director Dawkins replied that there appears to be a question based on whether the nominee is a Junior or the III which may not have been clearly identified from his voter registration. Each of the nominees is fully checked, including to verify voter registration, in the on-boarding process. She will recheck the voter registration and review with the nominee if any questions remain. Chair Carter questioned the report that this nominee served in one previous election, yet his voter registration is dated 02/07/2020. Director Hunter-Havens replied that he was registered before the 2020 primary, making him eligible to work in the 2020 elections. Member Kemp raised a question because he was unable to find about the voter registration of Elaine Syres, the Democratic Chief Judge in Precinct W27. Deputy Director Dawkins explained that Ms. Syres goes by Elaine but her first name is Marie. The precinct officials database uses the official’s preferred name. Chair Carter noted the meeting was approaching the one-hour mark which was the commitment made for the duration of this meeting. The Members agreed to continue. Member Bryan proposed to isolate the appointments where a board member has questions and proceed to approve the rest. Member Kemp moved to approve the appointments for all precincts except FP06, H10, W13, W24, W 26, and W27, second by Secretary Miller. Motion carried unanimously. Chair Carter called on Will Knecht to address the Board. Mr. Knecht stated he is a big fan of the staff of the New Hanover County Board of Elections. He stated that the guidance sent to the county party chairs for their nominees only stated that residence in the county is required. He, and he assumes his counterpart, spent countless hours vetting their nominees, saying both party chairs were under the same misapprehension as to the requirements. He was not aware that Deputy Director Dawkins was also vetting the Draft Board Minutes - 09/01/2021 6 individuals. He noted he submitted non-resident names as transfers for three vacant positions – Tom Morris for W13; Thomas Newton for W24; and Samantha Nguyen for W26. Director Hunter-Havens said, as she noted in the last meeting, her email stated the preliminary requirements which include that the nominees must be registered to vote in this county, and cited §163-41 for the additional requirement that the party chairs’ nominees must also live in the precinct where serving. Chair Carter said that the requirements are technical and not well-drafted. Member Kemp stated he will vote no on the remaining precinct positions, so that the Board can appoint Republican nominees to replace Unaffiliated nominees, which will require a unanimous vote. Director Hunter-Havens pointed out that the staff recommended nominees who reside in the precinct, while the party nominees are nonresidents. Chair Carter stated he was not clear why that makes a difference. Chair Carter asked Mr. Knecht whether he has submitted any additional nominees supplementing his original list. Mr. Knecht said he has not. Chair Carter asked him to do so by email to him. Secretary Miller asked whether that was appropriate and should instead go to the Director. Member Kemp stated that he wants to reach the next step after the Director requests nominees from the party chairs. He will be happy to reject Unaffiliated transfers to get Republican transfers appointed. Chair Carter responded that is his prerogative, and suggested the Board go through the remaining six precincts one by one for vote. Secretary Miller stated, regarding the three names noted by Mr. Knecht, he is concerned about patch-work communication because not all Board members were copied on all the email correspondence. He stated consideration is out of order and asked whether these names had been vetted. Chair Carter said there is no motion to consider those names at this time. Member Hunter asked whether part of the list can be approved. Director Hunter-Havens said yes, but has concerns about continued delays in filling the remaining assignments to have adequate time for on-boarding and training. There are over 300 officials to prepare to assure high levels of service to the voters. Member Hunter asked what happens if the vote is not unanimous? Director Hunter-Havens stated that the current appointees continue to serve until their successors are appointed. Member Kemp stated he understands the Board is in step two of the §163-41 (c) process. Chair Carter read the second paragraph of §163-41(c): If the recommendations of the party chairs for chief judge or judge in a precinct are insufficient, the county board of elections by unanimous vote of all its members may name to serve as chief judge or judge in that precinct registered voters in that precinct who were not recommended by the party chairs. If, after diligently seeking to fill the positions with registered voters of the precinct, the Draft Board Minutes - 09/01/2021 7 county board still has an insufficient number of officials for the precinct, the county board by unanimous vote of all of its members may appoint to the positions registered voters in other precincts in the same county who meet the qualifications other than residence to be precinct officials in the precinct, provided that where possible the county board shall seek and adopt the recommendation of the county chairman of the political party affected. In making its appointments, the county board shall assure, wherever possible, that no precinct has a chief judge and judges all of whom are registered with the same party. In no instance shall the county board appoint nonresidents of the precinct to a majority of the three positions of chief judge and judge in a precinct. Chair Carter moved approval of the appointment of Barbara Aaron as Chief Judge and Robert LaGoe as Judge in Precinct FP06, second by Mr. Kemp. Motion passed unanimously. Member Hunter moved to appoint Lynda Fahrman as Judge in Precinct FP06, second by Secretary Miller. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted nay. Motion failed due to lack of unanimous vote of all the members. Secretary Miller asked Member Kemp to give his reason(s) for his vote. Member Kemp declined to give his reason(s). Member Kemp moved to approve appointment of Rina Messler to Precinct H10; Donna Bender and Dawn Midkiff to Precinct W26; and Elaine Syres and Christine Hennessey in Precinct W27, second by Secretary Miller. Motion passed unanimously. Member Kemp moved to appoint the transfers nominated by the chair of the Republican party, subject to the staff identifying any qualification issues in which case it would be left to the Board chair to appoint after consultation with the party chair. Member Hunter stated she is not prepared to vote on these other names tonight since their qualifications have not been checked. Chair Carter asked whether the Board wanted to stop here? Member Hunter asked if there are any other matters to vote on in this meeting? Member Kemp said he does not understand when the provisions of the first paragraph of NCGS §163-41 (c) end and the second paragraph takes over. Director Hunter-Havens explained that when there are vacancies in Chief Judge and Judge appointments and there are no further party nominations, the staff will recommend a transfer from another precinct, as the Board did in Precinct W08 in the previous meeting. The concern is the ability to provide the proper level of service to the voters. Chair Carter reminded the Board these are the positions remaining to be considered: FP06 – 1 Judge (resident Unaffiliated nominee) Draft Board Minutes - 09/01/2021 8 H10 – Chief Judge (transfer Unaffiliated nominee) and 1 Judge (resident Unaffiliated nominee) W13 – Chief Judge (transfer Democratic nominee) W24 – Chief Judge (transfer Democratic nominee) W26 – 1 Judge vacant (Republican position) W27 – 1 Judge (resident Unaffiliated nominee) Secretary Miller said he does not understand the issue with these positions. Member Kemp declined to elaborate on his position, then stated he wanted these votes to fail to allow the party chairs to make nominations. Member Miller said this feels like an ambush, perhaps he was not included in all the emails among the Board members. Chair Carter noted that the open meetings law, which is all important, restricts the ability of the Board members to communicate outside of Board meetings, which may have resulted in all members not being included in all emails. He proposed that the Board proceed to vote on the remaining positions and adjourn. Member Bryan agreed that is the right thing to do to get the right people in place. He noted there have been no complaints to the Board during his tenure about precinct officials. Director Hunter-Havens said there were complaints to the office about observers but not about precinct officials. Member Bryan said we all are learning a lot that will serve us well the next time. He wants to be sure we are not creating a bigger problem over five positions and there are other back stops. Chair Carter said the statutes and guidance received are not clear. Member Hunter said she has no questions. Chair Carter asked if the members want to defer these five slots to the next meeting. Member Bryan said it sounds like there will be member(s) voting against in either case. Chair Carter reminded the members that a unanimous vote is required to make these appointments, allowing one member to veto the nomination. Director Hunter-Havens cautioned the Board to keep in mind that transfer decisions cause ripple effects across other precincts. Chair Carter moved to adjourn the meeting at 6:49 p.m., second by Member Hunter. Chair Carter and Member Hunter voted aye, Secretary Miller, Members Bryan and Kemp voted no. Motion failed for lack of a majority. Secretary Miller preferred to vote on the record, then adjourn, noting that any transfer officials approved can be replaced later with resident appointments. Secretary Miller moved to appoint unaffiliated transfer Karl Ricanek III as Chief Judge in Precinct H10, second by Member Hunter. Chair Carter, Secretary Miller, Members Bryan and Hunter, Member Kemp voted no. Motion failed due to lack of unanimous vote of all the members. Secretary Miller moved to appoint unaffiliated resident Darla Jane Green Hughes as Judge in Precinct H10, second by Member Hunter. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. Motion failed due to lack of unanimous vote of all the members. Draft Board Minutes - 09/01/2021 9 Secretary Miller moved to appoint Democratic transfer Margaret Davit as Chief Judge in Precinct W13, second by Member Kemp. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. Motion failed due to lack of unanimous vote of all the members. Secretary Miller moved to appoint Democratic transfer John David Purnell as Chief Judge in Precinct W24, second by Member Hunter. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. Motion failed due to lack of unanimous vote of all the members. Member Bryan said the Board runs the risk of not getting precinct officials in place in time to train and prepare them. Member Kemp noted there are other vacant positions. Deputy Director Dawkins said that having an experienced Chief Judge is critical in a precinct like W24 which generates a lot of voter registration challenges and provisional voting. Mr. Purnell has a lot of prior experience and excellent skills in multiple precincts to bring to a precinct with a small pool of resident candidates who are willing to serve this precinct, where a lot of UNCW students are registered and deserve the same level of service as other voters. She has more success recruiting resident voters to serve as Judges, hence a transfer in the Chief Judge position is not an obstacle. Member Kemp replied that after the party chairs are consulted, the appointment can be reconsidered. Secretary Miller moved to appoint unaffiliated resident Kathryn Lawson as Judge in Precinct W27, second by Member Kemp. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. Motion failed due to lack of unanimous vote of all the members. Member Kemp said now the Board can seek and adopt recommendations from the county party chairs. Director Hunter-Havens asked for clarification, the Board is rejecting unaffiliated precinct residents because they wish to appoint party-affiliated nonresidents? Chair Carter objected to the “because”, stating that is not the Board’s motivation, although it may be attributed to an individual member. Member Kemp declined to give his reasons for the way he voted. Director Hunter-Havens expressed her concern that she is being directed to violate state law which she must report to the SBE. Chair Carter said the Board is trying to understand and follow the guidance that has been given. Secretary Miller moved to appoint unaffiliated resident Lynda A. Fahrman as Judge in Precinct FP06, second by Member Hunter. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. Motion failed due to lack of unanimous vote of all the members. Secretary Miller discussed the criteria for rejecting nominees who are transfers and unaffiliated voters. Chair Carter called on Director Hunter-Havens to summarize as best she can. Member Bryan took exception to the statement that the Director must report Board actions to the SBE. Director Hunter-Havens responded that the County Board of Elections is required to comply with SBE guidance when sought and she in turn must report back to the SBE legal team. Member Bryan disagreed, saying the CBE has autonomy to make decisions. He felt the Board needed legal advice from the County Draft Board Minutes - 09/01/2021 10 Attorney. Director Hunter-Havens disagreed, stating CBEs must follow SBE policies and guidance. Chair Carter suggested referring the question to the County Attorney in the same way the County Commissioners may. He stated that the numbered memos are clear but the email advice he received is open to question or clearly wrong, undermining their credibility with him. SBE can vacate or reverse CBE actions. Member Bryan agreed that is how the process works. Chair Carter thanked the Board for their service and the attendees for their presence. He apologized to Director Hunter-Havens for all the extra work. Member Kemp asked if the MAT team appointments were approved? He said he voted twice as not prepared to vote in the previous meeting on August 18, disputing the draft minutes he has seen. Chair Carter moved to adjourn the meeting and asked Member Kemp to consult with Director Hunter-Havens about the draft minutes. Director Hunter-Havens said that, with unaffiliated MAT appointments, appointment required unanimous approval. Secretary Miller said he was fuzzy on the MAT appointments. Member Hunter recalled that the MAT appointments were approved. Member Kemp said he is prepared to vote again. Member Bryan suggested he may object to approving the minutes. ADJOURNMENT Chair Carter moved that the meeting be adjourned at 7:19 p.m., second by Secretary Miller. Motion carried unanimously. The next Board meeting is scheduled to be held on September 14, 2021, at 5:15 p.m. APPROVED BY: RESPECTFULLY SUBMITTED BY: ___________________________ ________________________________ DERRICK R. MILLER RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Draft Board Meeting - 09/14/2021 Page | 1 REGULAR MEETING New Hanover County Board of Elections September 14, 2021 5:15 P.M. ATTENDANCE Members: Oliver Carter III, Chairman Derrick R. Miller, Secretary Russ C. Bryan, Member Lyana G. Hunter, Member Bruce Kemp, Member Staff: Rae Hunter-Havens, Executive Director Chris Tisbert, Elections Database and Systems Specialist Joan Geiszler-Ludlum, Administrative Elections Technician Visitors: Sheryl Kelly, Assistant County Manager Public Attendees – In Person: Steph Fetzer; Richard Poole; Susanne Werner, NHC Democratic Party; Loraine Buker, League of Women Voters – Lower Cape Fear; Bob Gatewood; Julius Rothlein, NHC GOP; Thom Miller; Will Knecht, NHC GOP; Dottie Playforth, NHC GOP; Susan Kreamer; Tom Kreamer; Peggy Vineyard; Andre Brown. Public Attendees - Virtual: Leslie Cohen; J. T.; two unidentified telephone numbers. OPENING Chair Carter called the meeting to order at 5:17 p.m. The New Hanover County Board of Elections meeting was held in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. All members were present. Chair Carter reminded everyone that New Hanover County is under an indoor mask mandate. All attendees must wear masks while attending the Board of Elections meetings. He requested all attendees to silence their cell phones. He announced that this meeting is being recorded, both audio and video. Finally, he asked attendees not to interrupt another speaker and reminded that in the Public Comment period, speakers are limited to two minutes each. Draft Board Meeting - 09/14/2021 Page | 2 AGENDA Chair Carter asked for the following changes in the order of the agenda: after the Public Comment period, move to item 5.b., Temporary Transfer of Voters for Precinct H08, and 5.c., 2021-2023 Appointment of Chief Judges and Judges as Old Business, then the Director’s Report and the remaining items. Chair Carter moved adoption of the agenda as amended, second by Member Kemp. Motion carried unanimously. Chair Carter announced he will no longer call for abstentions when calling for the vote. MINUTES Chair Carter moved that the minutes of the 08/17/2021 Special Board meeting be approved as submitted. Member Kemp requested a change on page three, last paragraph, seventh line, adding “where possible” after party affiliation. Secretary Miller requested a change on page four, paragraph six, second line to correct the spelling of the last name from “Willis” to “Wills”, second by Member Kemp. Motion carried unanimously. PUBLIC COMMENT Chair Carter called upon the public in-person attendees for their comments or questions, limited to two minutes each. Suzanne Werner, representing NHC Democratic Party and chair Andre Brown, said she has been working on the chief judge and judge appointments for many years. This year, the Democratic Party recommended six judges and four were rejected because they were non-residents of the precinct. She has brought forward an additional name of a voter who is resident in the precinct to Chair Carter. She was not aware that non-residents of the precinct are now eligible. As she understands the statute, residence in the precinct is the most important qualification. She is aware that there are recommendations to transfer in and replace a resident Unaffiliated official with a non-resident party-affiliated official. That is an error. In some precincts, Republican and Unaffiliated officials are appointed and no Democrats. Replacing a transfer Democrat with a transfer Republican is inappropriate in those cases. Chair Carter took note that Ms. Werner was reading from the guidance from the State Board of Elections and passed out copies of his edited excerpts from NCGS §163-41 to the Board Members and the public in-person attendees. Seeing no other public in-person attendees wishing to offer comment, Chair Carter called on the virtual attendees for their comments. Leslie Cohen asked whether the August 17 meeting minutes are posted on the website? The August 17 minutes were approved earlier in this meeting and will be posted to the website tomorrow. In-person attendee Susan Kreamer reported she served as an observer on Election Day 2020. At the end of the day, she was told to leave by the chief judge as the precinct officials were breaking down the equipment. She asked that the chief judges be trained to Draft Board Meeting - 09/14/2021 Page | 3 let observers stay. Director Hunter-Havens acknowledged that there was some confusion about allowing observers to remain and that has been noted for future training. Seeing and hearing no other public attendees wishing to comment, Chair Carter closed the Public Comment period. OLD BUSINESS 5.b. Temporary Transfer of Voters for Precinct H08 Chair Carter called on Director Hunter-Havens for her report. Currently there are no registered voters who reside within the municipal boundaries in Precinct H08. The deadline to register to vote in the municipal election is October 8, 2021. The State Board of Elections (SBE) has recommended that the Board temporarily transfer voters in Precinct H08 to Precinct H12 for the 2021 Municipal Election only. Precinct H12 is adjacent to Precinct H08. The statute governing a temporary transfer requires that, when the board assigns voters from more than one precinct to the same precinct, the board shall maintain separate registration and voting records to identify properly the precinct in which the voter resides. (N.C. Gen. Stat. §163-128(a) (2020)) The polling place for Precinct H12 is Porters Neck Elementary School. The voting enclosure is the multipurpose room, which has sufficient interior space to maintain separate registration and voting in the event an eligible Precinct H08 voter registers to vote. Question was raised whether there is a similar situation in H12? Director Hunter-Havens reported that H12 has about 300 to 400 voters in the municipal limits. Member Kemp moved adoption of the Resolution to Temporarily Transfer Voters for Precinct H08, second by Member Hunter. Director Hunter-Havens said that at this time there are no voters to notify of the temporary transfer, but the staff will follow up again after the voter registration deadline. Secretary Miller asked what happens with the chief judge and judges appointed for Precinct H08. Precinct H08 officials will not work on the municipal election day but will be in place for 2022. Director Hunter-Havens explained that Precinct H12 has an experienced chief judge in place who can navigate the specialized process with the transfer. Motion carried unanimously. 5.c. 2021-2023 Appointment of Chief Judges and Judges Chair Carter introduced the next item of business, noting that section 163-41(c) requires that at least two of the three among chief judge and judges reside in the precinct. There are 16 vacancies to be filled among 43 precincts. While there are now 15 to 16 names Draft Board Meeting - 09/14/2021 Page | 4 before the Board, not all can be appointed at this time because not all of them live in the precincts where officials are needed. Member Kemp asked whether the names submitted by Susanne Werner on behalf of the Democratic Party were already reviewed by staff? Chair Carter reviewed the four names received from Ms. Werner to fill vacant positions: • W16 – Alex Lee • CF02 – Irving Trust • H12 – Edward Beckes • W24 – Veronica McLaurin Brown Ms. Werner asked the Board to consider Ms. McLaurin Brown for appointment to Precinct W17 instead of W24 to avoid a second non-resident transfer in W24 in deference to the recommended appointment of John David Purnell as the non-resident Chief Judge. Secretary Miller affirmed his position is to appoint the duly recommended nominees put forth by staff. He is willing to engage in further discussion. There are several names beyond the five that were duly and timely put forward by staff that the Board already voted 4 to 1 to approve at the last meeting. He stated he would like the Board to approve those appointments unanimously, then consider the appointment of these further names. Secretary Miller moved to appoint the five chief judges and judges that remain unappointed that were duly and timely recommended by staff. Those five are: • Karl Ricanek III, H10 • Darla Jane Green Hughes, H10 • Margaret Davit, W13 • John David Purnell, W24 • Kathryn Lawson, W27 He reminded that the Board voted in the last meeting 4 in favor and 1 against those appointments. Chair Carter asked for clarification of the resident status of the nominees. Director Hunter-Havens confirmed that Ms. Hughes and Ms. Lawson are residents of the precinct to which they are recommended for appointment. Member Hunter seconded the motion. Chair Carter reviewed NCGS §163-41 (c), second paragraph, where the party chairs’ recommendations are insufficient, the Board may name chief judges and judges who reside in that precinct without the recommendation of a party chair. That would be two of the five that Secretary Miller named in his motion. He has no problem with considering the other three also but thinks it contemplates making the resident and nonresident appointments separately. He recognizes his view is inconsistent with the guidance provided by the SBE legal department in two respects. First, they say we “must” appoint, and the statute says we “may” appoint, we have been over that. Second, the statute focuses on registered voters in the precinct, but then gets into registered voters from other precincts. He does not mind tackling two steps at once and has no problem with the motion on the floor but wants to track the steps as they are laid out in the statute. Draft Board Meeting - 09/14/2021 Page | 5 Member Bryan said SBE clearly could not mean “must” in direct conflict with the statute. Chair Carter said he is inclined to consider they meant “may” instead of “must” and noted the SBE had the opportunity to retract their guidance and have chosen not to, but is not inclined to argue about it further. The statute says “may”. Secretary Miller said, as a non-lawyer on the Board, he feels like the Board is getting into the weeds. This is still the starting point for him. He added that the Board has not previously rejected non-resident judges and chief judges who were recommended by staff rejected. The Board is departing from custom and past practice. Chair Carter said that at step three, the Board must have diligently sought names of resident voters to fill the open positions with in-precinct nominees. Secretary Miller asked if he understands Chair Carter to be saying he would be more comfortable in voting on the names of the two resident appointees first and then move onto the transfers recommended to the Board? Chair Carter responded that he is not saying the law compels the Board to appoint the resident officials, but that the Board may appoint them. It compels the Board to diligently seek to fill those positions. It raises the question whether voting against those nominees is the Board “diligently seeking” to fill those posts with residents of the precincts, or is the Board not being diligent enough? That is a question each Board member must answer for herself or himself. Chair Carter said he would be happy for Secretary Miller to bifurcate the motion, but he is not going to amend the motion. Member Hunter said, for clarification, the SBE is getting “must appoint” from NCGS §163-41(a), setting the threshold requirements that nominees are residents of the county, of good moral character, and able to read and right, and extrapolate from that, if the names presented meet those criteria, the Board must appoint them. Chair Carter said he tends to think that is correct even though the SBE did not come right out and say that. He accepts that as a plausible way to reconcile their guidance with what the statute says. He sees those requirements as a baseline minimum and not an exhaustive list of requirements. That is as close as he can come to what the SBE means. Member Hunter agreed that this is their interpretation of the law, they are the experts, and she intends to follow their advice as the experts. It is the Board’s responsibility to seek their guidance and put it into action. Chair Carter said his perspective is slightly different, that the Board is well-advised to seek their guidance, but also to weigh that guidance against the plain language of the statute, and when there is any daylight between the two, the Board needs to be very careful to adhere to the statute and not to conflicting guidance. Member Hunter said it may be expedient to divide the question as one part may be more controversial than the other. Secretary Miller agreed to withdraw his previous motion and instead moved to approve in H10 as Judge, Darla Jane Green Hughes, a resident of H10 and not a transfer, and in W27 as Judge, Kathryn Lawson also noting she is not a transfer, second by Member Bryan. Chair Carter called for any further discussion. Member Kemp noted that with the appointment of Ms. Lawson in W27 there are already two Democrats appointed as judges there and he sees the need for a Republican judge in that precinct. In H10 there are no municipal voters now, so anybody assigned to H10 now is not available to fill judge and Draft Board Meeting - 09/14/2021 Page | 6 precinct needs when they might be needed in the city, whereas the Board can appoint before the 2022 primary when there will be more people available to serve. This allows the Board to conserve judges by not assigning them to precincts that are not voting this year, giving the staff and the Chair more choices to fill vacancies. Secretary Miller said he understood this is a staff nominee and he understands the Board’s duty is to appoint, not hoard officials. He disagrees with Member Kemp in this use of personal, idiosyncratic criteria added to the list the Board must consider. Member Bryan asked to hear from the Director regarding saving judges. Director Hunter-Havens advised that precinct H10 does have municipal voters this fall, about 110 at last check. We try not to inconvenience that many voters by a temporary transfer to another precinct. With a footprint that small, a chief judge and two judges serve as a smaller presence to assure those voters can vote and receive the same level of service as the other precincts with more registered voters. Administratively it is extremely helpful to complete these chief judge and judge appointments so that these officials, who have not served for ten or eleven months, can build their experience, update their knowledge of statutory changes, and prepare to serve in the primary election when there will be a much larger turnout. To save individuals in hopes we can find more people, from an administrative standpoint, does not allow us to build their skills and build their knowledge base so they can better serve the voters in this county. We have a trained election official pool of almost a thousand officials. In start making these recommendations, the key factors are who is available and willing to serve. We are mindful in all our recommendations whether they are residents of the precinct or strategic transfers. Certain positions, such as chief judge, can be very challenging to fill. Many experienced judges are hesitant to take on chief judge responsibilities. Administratively we encourage the Board to appoint as many experienced chief judges and judges as possible so to provide the level of service that voters in New Hanover County are used to receiving. Member Bryan asked Director Hunter-Havens, if there are 110 eligible voters, how many do you expect will vote Election Day versus One Stop? The Director responded that, traditionally, there is less turnout during Early Voting for a municipal election. During a presidential election, about 60 percent voted early voting in-person, the highest it has ever been. In a municipal election, turnout runs around 18 percent, and of those voters who voted in the last municipal election, approximately 20 percent voted during the early voting period. Member Kemp said it has been nearly a month since the Board first considered these appointments and wondered if any additional residents of the precinct have expressed an interest in serving in any of the precincts where there are vacancies not yet filled. Are we going back and revisiting steps we considered in the previous meeting? The names received from the party chairs were appointed. The next step is to diligently seek people who live in the precinct who are available. We are back to the names that were originally submitted so I am asking whether staff have received names of others willing to serve who might replace a transfer or may be a Republican or a Democrat where there is none that could be appointed. The Director responded that she was not expecting additional judges to step forward. We have continued to receive responses from the pool of Draft Board Meeting - 09/14/2021 Page | 7 officials, and we have received additional applications from individuals with no election experience who we will continue to on-board to be available to fill vacancies as needed to give these individuals experience so they will be ready to step into a leadership role. We want judges to get experience now to be ready for the primary and general elections in 2022. Chair Carter addressed Member Kemp’s question: these are the only two people that we are aware of, whether names given by county staff or either party, nominated to serve as judges in the precinct in which they live. He asked Director Hunter-Havens if that is her understanding and she confirmed it is. Chair Carter asked if anyone has any information to the contrary. Addressing Member Kemp, he asked if that clarifies things. Member Kemp concurred. Chair Carter called for any further discussion on the motion before the Board. Hearing none, he called for the vote. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. The motion failed for lack of a unanimous vote of all the members. Member Bryan asked whether we know where we can reach some common ground, so we don’t need to go through the entire process? He would like to get some proposals on the table to get this work completed. Member Kemp contended the Board has plowed this ground already, that we are now is in the second sentence of the second paragraph of §163-41(c). We have received from the party chairs names that live outside the precinct and he is prepared to nominate those folks to serve those precincts. If the Board approved the previous motion, those nominees would not be appointable, because there is already one out-of-precinct transfer appointed. Member Hunter pointed out that the two names just voted on are not transfers. Member Bryan agreed that in the previous motion, which he seconded, both reside in the precincts to which they were nominated. Member Kemp said the Board has previously voted on these names. Chair Carter said that as part of the Board’s required diligence in seeking to fill the positions, multiple votes to reach unanimity are appropriate. Appointing Ms. Green in H10 would not prevent appointing a Republican transfer to a position in that precinct, while appointing Ms. Lawson in W27 would. Member Kemp said that there are already two Democrats appointed in W27. Chair Carter called for a motion to vote on these two names separately. Secretary Miller moved to name Darla Jane Green Hughes as judge in H10, second by Member Hunter. She pointed out that Ms. Green Hughes has experience in five previous elections, is a resident of the precinct, presumably of good moral character and can read and write. She meets all the criteria for appointment. There being no further discussion, the motion carried unanimously. Member Hunter noted Ms. Lawson has served in one previous election, is unaffiliated which makes no difference according to the statute, and moved the appointment of Kathyrn Lawson to serve as Judge in W27, second by Secretary Miller. Draft Board Meeting - 09/14/2021 Page | 8 Hearing no further discussion, the Chair called for the vote. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. The motion failed for lack of a unanimous vote of all the members. Member Kemp moved to appoint Dorothy Playforth as Judge in W27, second by Member Bryan. Her name was submitted by the county Republican chair prior to August 17. Chair Carter said that Member Kemp’s motion falls under §163-41(c), second paragraph. This motion presupposes that the Board has already diligently sought to fill the position with in-precinct officials. Once the Board satisfies that pre-requisite, the statute then says the Board may appoint out-of-precinct officials. Those appointments may be based on recommendations from the staff and the political parties. But the statute also says, where possible, the Board is required to seek and adopt the recommendation of the county parties. He finds that particularly important because that same language is not found in the immediately preceding section. He understands the statute to say the parties play an explicit role when the Board is operating under this step of the statute. There may be a difference of opinion among the Board members as to whether we have diligently sought to fill the position with an in-precinct official. He is not taking a position on that quite yet. But if we get past the pre-requisite and do act on the positions, then we are required to consider the input from both parties. [Chair Carter then excused himself from the meeting and asked Secretary Miller to take over the chair.] Secretary Miller addressed questions for further information to Member Kemp. The name that you just put forward was submitted when? Member Kemp responded it was submitted on August 17 and clarified the name being moved for appointment. Secretary Miller noted that she is not the person currently on the list entitled “All Remaining Vacancies and Suggestions” in the Board packet, which lists Samantha Nguyen in W27, not Dorothy Playforth. Unless I am mistaken, this is a new name not presented before. Mr. Rothlein, representing the county Republican party, stated her name was submitted in the beginning for W26. Secretary Miller asked Director Hunter-Havens if she has any documentation of what Mr. Rothlein said. She said she would have to check the emails. She has submitted to the Board each updated version; this is the fifth or sixth effort to summarize all the names that have been put forth. She does not have any information about Dorothy Playforth, but the Board can take any action it chooses. She understood Samantha Nguyen is the name, but may be mistaken. Member Bryan noted that Ms. Nguyen is also listed under W26. Director Hunter-Havens said that may have been an error on her part, for which she apologized. Is Dorothy Playforth a resident of W27? Mr. Kemp reported she is a resident of H13. That means she is a non-resident put forward by the county party chair, put forward under §163-41(c), second paragraph. The Board has made a diligent effort, having voted twice without success on Kathryn Lawson. Secretary Miller said there may be competing interpretations of what has and hasn’t happened, and that is okay. Clarifying, Dorothy Playforth of precinct H13 has been recommended to serve as Judge in W27. Has there been any documentation that she is eligible? [Chair Carter returned to the meeting and resumed the chair.] Director Hunter-Havens advised that both party Draft Board Meeting - 09/14/2021 Page | 9 chairs have submitted names without additional information. Ms. Playforth is not in the precinct officials pool. Chair Carter called for any further discussion of the motion on the table. Member Hunter said this is a blatant effort to elbow in Republican judges. The Board has an eligible person who is a resident of the precinct, and has met all the criteria that is outlined by the statute, and Mr. Kemp wants summarily to not approve her, even though she meets all those requirements, in favor of a partisan move to place a Republican in that position. She stated she would not vote to approve the motion. Member Bryan objected to the description as “a blatant effort” and said that there is a genuine effort to balance things out. Having a Republican serve in this position he can support based on the statutory interpretation and the Board is required to approve the nomination of the party chair after diligent effort. We are looking at risks/rewards here. The staff needs to have everybody in place. There are some places in this process where partisanship is involved because we have a particular governor in place. We don’t need to assume that the partisan side always wins, and the other side always loses. This is appropriate under the rules, but may not be what everyone wants. At some point, the Board must appoint somebody. On average, having two Democratic judges and one Republican judge is not a situation where we need to spend an inordinate amount of time to get this completed. We are doing more harm to the election than we would appointing two Democrats and one Republican to the voting site. Chair Carter thanked Member Bryan for his comments and called on Secretary Miller. He asked Member Kemp if he has additional names he wants to put forth, other than the five currently before the Board and recommended by staff? Member Kemp asked the Chair if that is relevant to the motion? Chair Carter said he is not sure if he understands the question, but it is probably relevant. Secretary Miller addressed the relevance of his question. As he stated at the outset, his starting point is that the names before the Board for appointment are duly recommended nominees from staff. He is not prepared to vote for any other nominees. Member Bryan argued that we must. Member Hunter said she would argue that the Board must appoint the slate of resident precinct officials submitted to the Board, and did not. That is what the statute requires. And now we are choosing to implement the “shall” part of the statute which is ridiculous because we did not do what the law clearly states. There are two Democrats and an Unaffiliated person. To say that is favorably weighted one way or the other… that is what satisfies the requirements of the law. Chair Carter called for any further discussion regarding the motion on the floor. Member Kemp said it seems to him that we are referring to the staff documentation on the statute, where the word “must” occurs, and not the actual statute, where the word “may” occurs. It requires a unanimous vote. I do not believe I am going against the statute. I believe I am following the statute, which is my oath, and I have the prerogative under the main clause to vote no, and I have done that. I did that on September 1, and I would have done that on August 17 if I had the chance to review the names prior to the meeting. But I did not have that opportunity to review the names prior to the meeting. They were presented to us along with guidance that was counter to the statute, and I was not able to digest the two of those, so I said, “not voting.” I am diligently trying to follow the statute. Draft Board Meeting - 09/14/2021 Page | 10 Member Hunter said the agenda and all the supporting documents were provided in advance. To say that you did not have the documentation is incorrect. All members received the information in advance. She acknowledged she did not understand it and needed some explanation when we got to the meeting on August 17. But we had all the information in advance of the meeting. My second point is that, if you look at the actual statute book, I guess you don’t have that, I can show you that, under §163-41, it says “persons appointed to the office must be registered voters, residents of the county in which the precinct is located, of good repute, and able to read and write.” Those are the criteria. Then we go off into the alternative selection once we are not able to meet those criteria. That is what the statute says. Responding to a question from Chair Carter, Member Hunter confirmed she is reading from section (a). Member Bryan suggested the Board proceed to vote on the motion. Chair Carter agreed to treat that suggestion as motion to cut off debate or calling the question. Secretary Miller asked the Chair to restate the motion. The motion is to appoint Dorothy Playforth as a judge in precinct W27. Members Kemp and Bryan voted aye; Chair Carter, Secretary Miller and Member Hunter voted no. Motion failed for lack of a majority. Chair Carter called on Ms. Werner, saying the Board would hear from one member of the NHC Democratic Party and one member of the NHC Republican Party to share their thoughts. Ms. Werner stated that the Board needs to abide by the statute, which in her view creates a priority that the appointee be a resident, and the Board should be voting for the recommendations of the staff. Chair Carter called on Mr. Rothlein as a representative of the NHC Republican Party. Back on September 1, the Board asked Will Knecht to submit names for six positions, and he provided those names. The Board should be able to vote on each of those names. Chair Carter thanked Ms. Werner and Mr. Rothlein for their comments. He recalled telling Mr. Knecht two weeks ago to submit any additional names he had. We all want to appoint precinct officials so that elections can run smoothly, so that the precincts are fully staffed, so that the Director and her team have time to train these folks, without causing undue stress in their lives, and so we are doing the best that we can to serve the voters of New Hanover County. All five of us, no matter what our differences are, we want to appoint people to these offices. Member Bryan said he wanted to find whatever middle ground we can. He senses that there are two very fixed positions, but is trying to find points of agreement so we can get this done. Obviously, we don’t all agree on the interpretation of the statute or whether we should follow the State Board’s advice. When possible, out of respect for the other party, for what we are trying to do, which is to be able to have a sense that their party is represented in as many polling places as possible and would reduce the likelihood of complaints or irregularities. Getting caught up in the language and trying to block that effort may be understandable given your interpretations but is counterproductive too. I think the goal for both sides is, as the Board of Elections and from the staff point of view, Draft Board Meeting - 09/14/2021 Page | 11 to have zero to few complaints about decisions made in the field. We have enough legal authority to do that, that we should keep it as balanced as possible. You know my position that the risks are very low by putting in place the staff and party recommendations, who take oaths, are trained, and I have very little worry that there will be any accusations of impropriety. But understanding the more fixed positions on the Board, I am trying to see if there is a way to find legitimate guidance to get us there and let the staff do their jobs. I don’t think, personally, either way we go, whether we appoint all six Republicans or not, there is going to be problems with the election. We reduce that possibility by following the guidance. I understand everyone’s position and I respect it. We can agree to disagree agreeably on various points. If we totally disagree, we don’t fulfill what we are obligated to do which is to complete the appointments. Secretary Miller spoke to Member Bryan’s comments about seeking middle ground. He asked Member Kemp his thoughts on the appointment of John David Purnell in W24 with two vacant positions left, and what his considerations are; the same for Margaret Davit in W13. Mr. Kemp responded regarding Purnell in W24, he understands that includes the UNCW campus and there are no in-precinct judges of any party so someone must be appointed there. He said he is willing to approve Mr. Purnell. Regarding W13, we are doing something our Director says she likes to avoid, transferring someone into the precinct who has only one year of election experience which prevents any other transfers to serve in that precinct The Chair recognized Director Hunter-Havens to respond. She said that in recommending the appointment of a non-resident chief judge, we are very mindful of the skills needed. Chief judge positions are the most difficult to fill. These are critical positions as all voters and all officials look to the chief judge for guidance and as their primary point of contact in the polling place. Ms. Davit is willing to serve, has experience in one prior election, and in all our contacts with her and our assessment of her, she has the skills and the abilities that we feel will make her a good chief judge. By no means have I said that we do not sometimes recommend a transfer chief judge. I believe my statement was that unless we have more understanding of the service history in the precinct, we strategically save transfers to fill chief judge positions. We ask the Board to appoint residents to those positions because, as we get closer to Election Day, chief judges and judges suddenly become unavailable. We will have some assistants appointed as chief judges and judges at the last minute. We will often use a transfer to fill that position because a resident assistant will not be able to step up. We try to avoid transfers if possible. In this case, traditionally, W13 would need a transfer chief judge and Ms. Davit is willing to step into that position. Chair Carter called on Secretary Miller. He made a motion to appoint John David Purnell as chief judge for W24, second by Member Hunter. Chair Carter called for any discussion. Member Kemp went back to the earlier discussion of the statute, prior to inquiring my opinion, it was stated that §163-41(a) requires appointment of a resident of the precinct, but I am not seeing that. I am seeing that it says that the appointee must be a resident of the county in which the precinct is located. But they do not have to be residents of the precinct. I do not see where section (a) applies to that appointment at all, and I believe we are through the first part of section (c) where we ask county party chairs Draft Board Meeting - 09/14/2021 Page | 12 to submit names for transfers. Member Hunter asked if this applies to the appointment of John David Purnell. The statute is permissive in the first instance because we “may” appoint, but if we do appoint, we “shall” appoint those recommended by the party chairs. Member Kemp asked the chair to restate the motion. The motion is to appoint John David Purnell as chief judge for W24. Member Hunter noted staff’s report of his qualifications: he has served in nine previous elections, he has the desired level of experience for this precinct, he meets the criteria, he is a non-resident transfer who meets the staff criteria for recommending his appointment. Motion carried unanimously. Secretary Miller moved to appoint Margaret Davit as chief judge in W13, second by Member Hunter. Chair Carter called for any discussion. Member Kemp made a substitute motion to appoint Thomas S. Morris as chief judge in W13, following the county Republican party chair’s nomination and § 163-41 (c), second paragraph, second sentence as the authority for that substitution. Chair Carter asked Member Kemp whether his motion is an amendment of the motion on the floor. Member Kemp agreed to treat his motion as an amendment rather than a substitute motion. Member Bryan made a procedural point that, while an amendment may be possible, for the sake of simplicity, it may be better to vote on one motion and then take up the next. Member Bryan asked whether the original movant, Secretary Miller, would accept the amendment. Secretary Miller summarized the discussion, that he made a motion which was seconded, there is a motion to amend which needs a second, then the Board votes on the amendment. After additional discussion, Member Bryan seconded the motion to amend. For clarification, Secretary Miller said the Board will vote first on whether to amend the motion, and if the amendment passes, the Board will have further discussion and vote on the motion as amended. Members Kemp and Bryan voted aye; Chair Carter, Secretary Miller, and Member Hunter voted no. Motion to amend failed for lack of a majority. Chair Carter returned to the original motion to appoint Margaret Davit as chief judge for W13 and called for the votes. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. Motion failed for lack of unanimous vote of all the members. Member Bryan said he wants to avoid the appearance of partisanship and make more effort to find the balance in these precincts instead of blocking the appointments. Chair Carter distributed a resolution he prepared, entitled “A Unanimous Resolution of the New Hanover County Board of Elections.” He said it may need to be modified but he hopes it will serve as a basis for appointing a substantial number of additional judges. Member Hunter moved to appoint a W16 resident put forth by the county Democratic Party, Alexander Field Lee, as judge for W16, second by Secretary Miller. Chair Carter called for discussion. Member Kemp asked Director Hunter-Havens to confirm that Mr. Lee is a resident of precinct W16. She confirmed Mr. Lee resides in precinct W16 and was nominated by the county Democratic party chair, to whom she reached out for additional names as Chair Carter requested, to give both parties the equal opportunity to submit additional nominees. In response to Member Kemp’s question, the Director confirmed Mr. Lee’s name did not appear on the first list presented to the August 17 Draft Board Meeting - 09/14/2021 Page | 13 meeting. Confirming there was no further discussion, Chair Carter called for the vote. Motion carried unanimously. Secretary Miller asked Chair Carter if any of the names on the list he presented are resident of the precincts. Chair Carter first pointed out that three of the names on his proposed list have already been appointed: Darla Jane Green Hughes in precinct H10, John David Purnell in precinct W24, and now Alexander Field Lee in W16. Noting the amount of time already spent on this, he asked whether the Board would like to table further discussion of precinct official appointments to address the remainder of the agenda and then come back to the appointments, or if a break would be helpful. Member Hunter would like to identify those names on which the members can reach agreement and approve those, and then consider the names where agreement might be more problematic. Member Kemp moved to appoint the names that Chair Carter proposed that have not already been approved. Member Bryan said he was looking for one of the Democrats on the Board to second the motion. Member Hunter suggested it would be more fruitful to consider the names one by one. Secretary Miller said he is willing to appoint any of the names who are residents of the precinct to which they are appointed, as with Mr. Lee’s appointment. Chair Carter confirmed none of the remaining names reside in the precinct of appointment. Member Kemp requested clarification of which part of §163-41(c) the Board is following. Have we “diligently sought” or are we in the second paragraph, second sentence? Chair Carter said in response that each Board member needs to decide that for himself/herself. For himself, he feels the Board is very close to having done their diligence and have worked hard at this. There is disagreement as to which requirements still operate. Member Bryan asked what happens if the Board is deadlocked. Member Kemp said that is what section (d) addresses. Chair Carter said that before we get to section (d), we would look at those officials appointed two years ago who might be still willing to serve. Director Hunter-Havens said that, for positions that are listed as vacant, staff has reached out to the incumbents and not received a response or declined to accept the appointment this time. Those appointees continue to serve until their successors are appointed. If that appointee is not available to serve for this one election, then that vacancy in the appointment can be filled administratively on an election-by-election basis. Previous Boards have been able to do that by unanimous vote. If not, then it becomes an appointment by the Chair. One Stop voting begins October 14 and all election training begins September 28. The administrative deadline for new precinct official applications is September 21. We will prioritize by position applied for, chief judge and judge first, and chronologically by date application was submitted. The last date for information sessions to explain the position and role and assess skills is September 28. The last date to process HR paperwork is October 4. We continue to accept applications after that date, informing the candidate that their name will be kept on file for appointments for the next election and will consider them for appointment to any vacancies that occur. We Draft Board Meeting - 09/14/2021 Page | 14 need to move forward with the critical appointments to conduct a successful municipal election. Member Hunter offered her observations. Looking at the remaining suggestions from Chair Carter, and looking first at the Republican names, Crystal Gayle Wolfe is the only name offered for judge in FP06 and is a transfer, and she is willing to appoint her. And the same is true for Samantha Nguyen in W26; hers is the only name to be put forward. Member Hunter moved to approve the appointment of these two nominees. Member Kemp said there is already a motion on the floor, his motion to approve the remaining names on Chair Carter’s proposed list. Chair Carter said there was no second for that motion. Member Kemp asked whether Member Bryan seconded that motion. Member Bryan said he did not. Chair Carter called again for a second for Member Kemp’s motion. Hearing none, Member Hunter’s motion is in order, second by Member Kemp. Secretary Miller discussed sequencing of the appointment decisions. He does not agree with that as it does not track for him. He remains cautious about jumping around to the different points that different Board members have raised about sequencing. While he is willing to support approval of these two nominees, he still believes the importance of making the other staff-recommended appointments. If we could approve the three remaining recommended appointments in one motion, he would support that. Chair Carter asked if that is a motion to amend the motion? Secretary Miller moved to amend the motion to appoint Karl Ricanek III as chief judge in H10; Margaret Davit as chief judge in W13; Kathryn Lawson as judge in W27; Crystal Gail Wolfe as judge in FP06; and Samantha Nguyen as judge in W26, second by Member Hunter. Member Kemp said three of those nominees have already been voted on tonight and that his vote will remain the same. Voting on these names one at a time is more productive, or go back to the original motion. Chair Carter called for any further discussion on the amendment to the motion. Member Hunter said this motion is in the spirit of finding common ground. She said her position is fixed only in the law which requires certain things. As a Board member, she is ethically bound by the law. This is an effort for the parties to get what they want, and more importantly, the staff is getting what they need to move forward to run an efficient election. She added to Member Bryan’s sentiments that a compromise is needed. This is that compromise. Chair Carter noted that when we get into section (c), second paragraph, where it says, “provided that where possible the county board shall seek and adopt the recommendation of the county chairman of the political party affected”, that last phrase, “of the political party affected” is not clear to him. It is not clear that the Board is required to seek and adopt the party chair’s recommendations. It seems to suggest that the Board needs to seek and adopt the recommendation of the chair of one party or the other party but is unclear how the Board determines which of the two parties is “the affected party.” Member Bryan said he assumes it means the party that is not represented among the chief judge and judge positions. Chair Carter responded that is an assumption with no basis in the statute. Member Bryan said it is a logical inference, but without reference to the legislative history, it is not clear. Chair Carter said that should not hold us up as several members have noted there is a need to move ahead with the appointments. There is a sequence, but we are not in agreement what the sequence is. We are doing our best to follow the statute Draft Board Meeting - 09/14/2021 Page | 15 as we understand it. The motion is before the Board to appoint two individuals, then amended to add three additional individuals, and when discussion is completed, proceed to vote on the amendment. Member Kemp asked whether the correct Karl Ricanek is nominated. Director Hunter- Havens said the correct voter, Karl Ricanek III, is the nominee and is a registered voter. Secretary Miller confirmed all the names included in the motion. He said, not being a lawyer, he is not able to parse the statute the way other members are. He feels the Board is cherry-picking certain points. The option on the table seems to be that Member Kemp can get two of his preferred names on this list, or none. He is not prepared to vote on the transfer names before we vote on the Board-recommended names. He will follow the initial guidance given, what Board practice has been previously, the routine process, and as to inserting partisanship into this process, only one party started investigating the voter history of unaffiliated voters to discern whether they were truly Republicans or truly Democrats. He rejects the statement that insisting on voting on the recommendations is somehow a partisan move. This disruption to the routine process is what injects partisanship into the decision. You get two or none, and further discussion will not change my position. Hearing no further discussion on the motion to amend the motion, Chair Carter called for the vote. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. Motion passed 4 to 1, carries by majority. Chair Carter called for any discussion on the motion as amended. Hearing none, he reviewed the motion and called for the vote. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. The motion failed for lack of a unanimous vote of all the members. Member Bryan asked if the Board should go back to the original motion appointing two individuals? Member Hunter understood Secretary Miller to say either appoint all unanimously or none. Member Bryan said earlier your goal was if we can get any appointed, now refusing. Member Miller responded that after many weeks and many hours of intransigence and obstruction, whatever the good intentions may be…. Member Kemp stated his objection to “intransigence and obstruction.” Chair Carter called for each member to allow the other to speak and to preserve decorum. Secretary Miller started over, saying that after many hours of non-negotiable “no’s”, he feels the Board has reached all the unanimity that we can reach. Member Bryan called on the Chair to move on to other business. Chair Carter asked if anyone wanted to discuss the precinct appointments further at this time. Member Kemp asked the Chair to clarify where the Board is in section (c). Chair Carter said that he understands different Board members are of a different mind as to where the Board is in section (c) at this time. Member Kemp said it seems that Secretary Miller’s complaint is that the Board has made a diligent effort. Chair Carter declined to characterize what Secretary Miller feels. Member Kemp cut off the Chair and said if Secretary Miller is going to characterize me the way he has, then I would say that is diligent. Chair Carter invited Member Kemp to speak for himself, that he feels he has Draft Board Meeting - 09/14/2021 Page | 16 been diligent. Member Kemp said that he and the Board have been diligent in their efforts to fill the positions with residents of the precinct. Chair Carter agreed the Board has made some progress in this meeting to do that, and expressed his appreciation to Members Kemp and Hunter and to Secretary Miller and Member Bryan. This has been a challenging process for the Board. There are certain requirements in the statute that make it particularly challenging. At this time the Board is well served to move on to other business, taking this matter off the table and returning to it at the end of the meeting. Member Bryan said he may need to leave the meeting as it has already run longer than he expected. If his presence affects items that require unanimous vote of the Board, he encouraged the chair to take up those matters first and then he can leave. Chair Carter said he not aware of any other agenda items that require unanimity of the Board other than appointment of precinct officials. He understands that the meetings are running longer, the business before the Board is important, and the Board members are all present. Member Bryan said he is aware of all that, but he sees little prospect of reaching a unanimous decision as each side has indicated their differing positions. 3. Director’s Report Chair Carter called on Director Hunter-Havens for her reports. [Member Kemp left the meeting.] a. Financial Update The Director explained the template for the monthly financial update, giving a snapshot of the revised operating budget for fiscal year 2021-2022, with year-to-date expenditures, and the previous fiscal year for comparison of the actual expenditures for the previous and the current fiscal years. Bear in mind that this fiscal year is different from the last because the elections are different. In FY2021-2022 there are two elections, the municipal election in November 2021 and the primary election in March 2022, versus in 2020-2021 with one presidential election, a unique election with unique expenditures that were grant-funded. This year there are significant encumbered funds, related to the temporary employees who will support election preparations in the office, separate from the election officials. The encumbered $219,000 for Contracted Services reflects what we expect to spend for both elections, through the 2022 primary election. We have made an offer to fill one of the vacant positions to someone who was working through an employment agency and until her contract ends with the agency, we will be paying her through Contracted Services for thirteen weeks. [Member Kemp returned to the meeting.] Note that transfers and adjustments are zero. She can cover the increased expense through Contracted Services. She invited questions from the Board members. Member Hunter asked the Director, noting the line item for Rent, whether the office is required to pay rent to the County for the office space. The line item covers rent for private polling places for Election Day, based on anticipated rent of $125 for use over a three-day period: for set-up on Monday, use on Tuesday, and pick up on Wednesday. Member Bryan reported that he, the Director and Member Hunter met with the SBE the previous Friday, to present the county’s One Stop plans. He wants to understand the Draft Board Meeting - 09/14/2021 Page | 17 impact on the budget. They presented the majority and minority plans for the alternative second One Stop sites. After their presentations, SBE adopted both plans, which the County Board had not agreed to and did not anticipate. New Hanover County is now directed to have three sites for One Stop Early Voting, which SBE based on the County’s recent sale of the hospital, making the County cash-rich and therefore able to afford the additional site. Conceptually, the plan is not a bad idea, they were just not aware of the SBE’s authority to make that decision. He asked Director Hunter-Havens how that decision plays into the department’s budget. She estimated the cost of full staffing at $25,000 per site. In the municipal election planning process, the Director sends an estimate of the cost of the election to the municipalities for their budget planning. The municipalities are charged with covering the cost of the election. That estimate included one One Stop site. The largest cost is salaries for One Stop officials, based on two shifts on the weekdays, nine hours on weekdays, over 15 days. The weekends are staffed with a single shift and covers only the second weekend and the final Saturday. Staff is assigned with consideration for the same factors as the election day staffing: bipartisan representation, prior service history, and a strong management team. In consultation with Assistant County Manager Sheryl Kelly, the county has agreed to absorb the additional cost. Assistant Manager Kelly noted that by statute municipalities pay the cost of municipal elections. Considering that they did not have this cost in their budgets, in particular the beach towns which have smaller budgets, the County opted not to pass the additional costs along to the municipalities. Chair Carter expressed the appreciation of the Board for the County’s decision. Director Hunter-Havens reported that the assigned budget analysts are on notice that there may be additional adjustments related to the cost for the primary election as well. Member Bryan added that they must have done such a good job in presenting the two plans that they convinced the SBE both plans were right. Chair Carter called on Member Hunter for her observations on the SBE meeting. Member Hunter noted that their agenda is structured similarly to ours, citing the statutory authority for the item, which indicated that the SBE may consider plans A, B, or C. They are not limited to choosing between the plans presented and may create their own plan. She had noted that as she prepared for the meeting, so she was not shocked by the decision because the SBE is very supportive of expanding access, as much as possible and where they can. That seemed to be the impetus behind the decision, making voting more accessible for the voters and favoring enabling more voters to vote. Chair Carter thanked the Board members and the Director for participating in the meeting which took about two hours. Member Hunter noted that Director Hunter-Havens did a great job answering the questions. Chair Carter added that, while this was not the Board’s original plan, it will offer more opportunity for on-the-job training for next year’s primary and general elections. Hearing no further questions, Chair Carter called on Director Hunter- Havens to continue with her report. b. List Maintenance She reported that the National Voter Registration Act (NVRA) report gives a snapshot of the changes in voter registration rolls over the period from July 1 to August 31, 2021. These reports reflect the tools available to gather this snapshot but is not a reconciliation document. Over the period from July 1 to August 31, 2021, 1,203 voters were removed Draft Board Meeting - 09/14/2021 Page | 18 in accordance with the statute, including 164 Inactive voters; and processed 2,155 new registrations, 939 duplicate registrations, and 1,878 registration updates. The large majority come in from DMV, but as we get closer to the registration deadline and into the higher profile 2022 primary and general elections, the pace of registration activity will increase, based on experience. Some registration activity was suppressed last year by COVID. Member Hunter asked for an explanation of NCOA. NCOA stands for National Change of Address. Confirmation postcards are sent twice a year, typically in January and June, to voters for whom we have received information from USPS of a possible change of address, showing both the address provided by USPS and the address we have on record, giving the voter the opportunity to update their voter registration address. The voter may check the box for their correct current address. Postcards which are returned as undeliverable are resent to the address we have on record. If the second postcard is returned undeliverable, the voter’s status is changed to Inactive. To vote, the voter either confirms the address of record or provides an updated address, and can proceed to vote. Member Kemp asked the Director if she could supply a June list maintenance report if that has not been publicly available. The Director agreed to run the report and post it on the website. Hearing no further questions or comments about list maintenance, Chair Carter thanked Director Hunter-Havens for her reports. 5. New Business Chair Carter turned to New Business, the 2021 municipal elections notice and called on Director Hunter-Havens to speak to it. a. 2021 Municipal Elections Notice The Director explained this is the notice required by statute. The legal notice is prepared with guidance from the State Board and contains information about the dates and locations of One Stop voting and Election Day voting; the procedures for requesting and submitting absentee-by-mail ballots; the dates, times and location that the Board will meet to consider and act on applications for absentee ballots; and the voter registration options and deadlines. Member Bryan moved approval of the 2021 Municipal Election Notice, second by Member Hunter. Member Kemp asked whether the listed delivery methods for return of absentee-by-mail ballots are examples or exclusive? Director Hunter-Havens confirmed those are exclusive for absentee-by-mail ballot return. Hearing no further discussion, Chair Carter called for the vote. Motion carried unanimously. Chair Carter moved to take a five-minute recess. Member Bryan asked the purpose. Chair Carter said it would provide a chance to refresh and return to the previous discussion about precinct officials. Member Bryan noted he was seeing other members Draft Board Meeting - 09/14/2021 Page | 19 shaking their heads. Member Kemp said he has a motion that, he believes, will be received favorably. Chair Carter withdrew his motion for a brief recess. Member Kemp said there were four names brought forward by the chair of the Democratic Party for precincts CF02, Irving Trust; H12, Edward Beckes; W16, Alex Lee; and W17, Veronica McLaurin Brown. He moved approval of those names for appointment, second by Member Hunter. He stated he believed all are non-resident transfers. Chair Carter noted that Alex Lee has already been appointed as judge of W16. and called for any discussion. Secretary Miller requested a few minutes to review the nominees and see who has already been appointed to serve in those precincts. These names were submitted to the August 17 meeting, but the Board has not yet considered them for appointment because they are non-resident transfers. Member Kemp noted these are Democrats who will serve in precincts where there are currently no Democratic judges appointed. He is interested in appointing Democrats instead of unaffiliated judges to fill these vacant positions. Member Hunter clarified that her second to the motion is based on these names being Democrats but not to displace unaffiliated people from appointment. That is not relevant for purposes of appointing these officials. Secretary Miller asked for a sense of the Board for adding to that list Samantha Nguyen as judge in W26 and Crystal Gail Wolfe as judge in FP06, both names nominated by the chair of the Republican Party to fill vacant positions in those precincts. Seeing agreement from the other members, Member Kemp agreed to revise his motion to appoint Irving Trust to CF02; Edward Beckes to H12; Veronica McLaurin Brown to W16; Crystal Gail Wolfe to FP06; and Samantha Nguyen to W26, second by Secretary Miller. Hearing no further discussion, Chair Carter called for the votes. Motion carried unanimously. Board members again declined Chair Carter’s suggestion for a brief recess. [Chair Carter left the meeting, handing the gavel to Secretary Miller.] Member Hunter said that appointments in H10, W13, and W27 remain. Secretary Miller asked the Director whether any of these precincts offer staffing challenges or situations for special considerations? Precinct H10 has many registered voters and requires a strong chief judge to assure high quality service to the voters. So far, no resident officials have stepped forward or been identified. The nominee for chief judge, Karl Ricanek III, is a transfer nominated for his strong skill set and experience. W13 is across from UNCW and presents similar challenges as W24 which is on the campus. Voters get confused between the two polling places, generating a higher number of provisional voters. The precinct also has a small pool to draw from for precinct officials. W27 traditionally has higher election day turnout, calling for a chief judge and judges with more service history and strong administrative and technical skills to serve the volume of voters. [Chair Carter returned to the meeting and assumed the gavel.] Secretary Miller asked whether H10 and W13 are more challenging than W27. The Director noted that she only recommends appoint of a non-resident transfer chief judge in situations where the experienced judges are not willing or lack the service history to take on the duties of chief judge. These positions require strong precinct management and leadership skills. Member Kemp would like to nominate the nominees of the Republican Party chair for these open positions. Mr. Rothlein has information to share regarding their Draft Board Meeting - 09/14/2021 Page | 20 qualifications. Chair Carter asked if there was any further discussion from the Board members before hearing from Mr. Rothlein. Member Hunter said she would not favor replacing the resident nominee for W27 with someone who does not have prior experience. The nominee meets the criteria for appointment. Chair Carter clarified that there is no motion on the floor and the Board is in general discussion. Secretary Miller wanted to continue the discussion as he believes the Board is moving toward a solution. Secretary Miller said he would be willing to compromise on the three positions, with great reservations, on H10 and W13, while staying with the staff recommendation for W27. After discussion about hearing from the Republican Party representative, Chair Carter called on Julius Rothlein to address the Board. He noted that the names suggested worked the previous election cycle and he is trying to build on that capacity. Thomas Newton, previously nominated as a judge in W24, has 37 years of national account sales experience and served as a poll observer in 2020. Chair Carter deferred any further comment from Mr. Rothlein to allow further Board discussion. Secretary Miller moved to appoint Kathryn Lawson as judge in W27; Thomas Morris as chief judge in W13; and Sarah Giachino as chief judge in H10, second by Chair Carter. The Chair called for any discussion, noting that Secretary Miller has offered a compromise that reflects a change from his earlier position, which is why he seconded the motion and plans to vote for it. Member Hunter said the challenge for her is the motion is to appoint two people as chief judges who have no prior election experience. Director Hunter-Havens selected the people she nominated for their prior election experience. Her hesitation is the lack of prior experience, not party affiliation. Experience is important in the two precincts under consideration. Member Bryan said the officials are not on an island. Director Hunter-Havens said there is a dedicated call center for the officials to report any difficulties they encounter during the day, such as equipment failures. They receive training to report any incidents they encounter. IT staff are standing by to assist with technology either by phone or on site. Chief judge is such a critical role that selection considers prior election experience as well as information gathered through information sessions and e-skills assessment, and having a working relationship. Member Bryan said we should understand that there is training and accessibility. Chair Carter said we are not throwing them into the 2022 general election, this is a municipal election with less stress and lower voter turnout. Secretary Miller said that he understands and shares Member Hunter’s concerns, but the Director’s information allays those concerns somewhat. The Board is looking at appointing these chief judges as opposed to no chief judges, knowing that there will be training, and this is a municipal election cycle with potential for wide utilization of three One Stop sites which takes some of the pressure off the election day polling places. Without minimizing those concerns, he is willing to accept the risk, considering the alternative. Hearing no further discussion, Chair Carter called for the vote. Chair Carter, Secretary Miller, Members Bryan and Kemp voted aye; Member Hunter voted no. Motion failed for lack of a unanimous vote of all the members. Member Hunter moved approval of the staff recommendations: Karl Ricanek III for H10 chief judge; Margaret Davit for W13 chief judge; and Kathryn Lawson for W27 judge, second by Secretary Miller. Hearing no discussion, Chair Carter called for the vote. Draft Board Meeting - 09/14/2021 Page | 21 Secretary Miller and Member Hunter voted aye; Chair Carter, Members Bryan and Kemp voted no. Motion failed for lack of a unanimous vote of all the members. Member Bryan said he appreciated everyone’s positions and the progress made today, but we have reached the point that we need to adjourn this meeting. Director Hunter-Havens brought to the Board’s attention the schedule of the absentee meetings with the first meeting on September 28, the date set by statute. Absentee-by-mail ballots will not be mailed until October 4, meaning there will be no returned absentee-by-mail applications to review on September 28. She asked whether the Board would like to cancel that meeting so that proper notice can be given. Chair Carter asked if the Board could discuss precinct official appointments at that meeting if the proper notice is given? Director Hunter-Havens said that date is too late to complete the on-boarding process for precinct officials and there are many other critical functions that must be performed and take priority. Any remaining vacancies will have to be filled with those who have completed the on-boarding process. Before calling for a second to Member Bryan’s motion to adjourn, is it the sense of the Board that we have exhausted our efforts to appoint precinct officials under §163-41(c)? Member Kemp disagreed, efforts not exhausted under the second paragraph of (c), which we have not attempted. Member Hunter disagreed and said efforts are exhausted. Member Bryan asked Members Kemp and Hunter if blocking each other’s attempts to put someone in the positions is better than bending a little bit? Member Hunter rejected that description, that her preferred position is to follow the law and that is what she is standing by. Member Bryan asked if she is following someone else’s opinion of the law? She said she knows how to read the statute and is following the guidance issued by the State Board of Elections. Based on those two things, she is acting within her purview as a Board member. Chair Carter asked Secretary Miller whether the Board’s efforts are exhausted. Secretary Miller replied he is not able to say but feels the Board has exhausted its ability to reach common ground, barring some breakthrough. Chair Carter addressed the same question to Member Bryan who responded that he is not clear on what the statute means by “exhausted”. Chair Carter deferred calling for a second to Member Bryan’s motion to adjourn, and instead moved that the Board declare it has exhausted its efforts to appoint precinct officials under §163-41(c). Member Bryan asked what such a declaration would trigger? Chair Carter responded that he believes it allows him as Chair to make appointments to fill vacancies. Member Hunter said she is hesitant to tie the action specifically to the section of the statute, but she agrees the Board has exhausted its ability to reach unanimity on the last three positions. Member Kemp said he felt the Board should seek the recommendations of the party chairman under §163-41(c), section 2, before moving to §163-41(d). Chair Carter withdrew his motion and Member Bryan withdrew his motion to adjourn. Member Bryan requested that Member Kemp read the portion of the statute to which he is referring, and Member Kemp proceeded to read from §163-41(c), second paragraph: Draft Board Meeting - 09/14/2021 Page | 22 If, after diligently seeking to fill the positions with registered voters of the precinct, the county board still has an insufficient number of officials for the precinct, the county board by unanimous vote of all of its members may appoint to the positions registered voters in other precincts in the same county who meet the qualifications other than residence to be precinct officials in the precinct, provided that where possible the county board shall seek and adopt the recommendation of the county chairman of the political party affected. Member Hunter stated her view is that the Board has done that. Both county chairs have submitted names and we have made some movement in appointing some names and then the remaining names have not been approved. The statute reads “where possible … shall”. Secretary Miller asked if we have determined the meaning of “the party affected”? It seems that it is the Democratic party that is affected, following the tradition that the chief judge reflects the party of the Governor. Chair Carter asked Member Kemp if he is contending that there are names that have been submitted that the Board has not considered yet? Member Kemp responded that he is contending that the Board has not satisfied the second sentence of the second paragraph of §163-41 (c). The Board must do that before moving on to (d). Chair Carter called on Member Kemp to state his motion. Member Kemp moved to follow the recommendations of the Republican Party chair which the Board requested, to appoint as non-resident transfers Sarah Giachino as H10 chief judge; Tom Morris as W13 chief judge; and Dorothy Playforth as W27 judge, second by Member Bryan. Chair Carter called for any discussion. Secretary Miller noted that in W13, Margaret Davit, as a Democratic appointee, indicates that the Democratic Party is the affected party. He has not heard how we are defining “affected party.” In H10, Karl Ricanek III is an unaffiliated appointee who has been denied, so there is no affected party chair to consult. The same for Kathryn Lawson in W27, also unaffiliated. How is the Republican party the “affected party” here when the Board has turned down two unaffiliated nominations and one Democratic nomination for appointment? Chair Carter said no one can offer more than a guess about what is meant by “affected party”. It all falls under the provision that the Board may appoint precinct officials who were not recommended by one of the party chairs. Member Kemp noted that the Director asked both party chairs to submit their recommendations which means the Board must vote on those names. He has not seen a list from the Democratic Party chair. The Republican Party chair’s list was received by email to the Board days ago. Chair Carter said the Democratic Party chair’s list was received today, although some of the names have been submitted previously. Member Kemp asked if some of those names have been approved? Chair Carter said some have been. Member Bryan said that is the point, that the Board has tried to approve some names from the Democratic list without success. Member Hunter said that the Board has also attempted to approve some names from the Republican list without success. Chair Carter said that all have made efforts and made progress. No one has gotten everything that they wanted and that is frustrating, and we have been here for three hours and that is frustrating. Member Kemp said that, if the Draft Board Meeting - 09/14/2021 Page | 23 motion passes, they are appointed. If the motion fails, we are either disagreeing on the names or disagreeing where we are in the process. If we do not agree where we are in the process, we cannot move on. This motion attempts to state where we are in the process. Member Hunter said the motion is trying to force the Board to agree on something where there is no agreement. Focusing on the sequencing remains unclear to her. Hearing no further discussion, Chair Carter called for the vote. Chair Carter and Members Bryan and Kemp voted aye; Secretary Miller and Member Hunter voted no. Motion failed for lack of a unanimous vote of all the members. Chair Carter moved that the Board resolve that it has exhausted its efforts to appoint precinct officials under §163-41(c), second by Member Kemp. Secretary Miller said that he can agree that the Board has exhausted its efforts but is not clear on the meaning of tying it to the referenced part of the statute. Chair Carter withdrew his motion and made a new motion. He moved that the Board has exhausted its efforts to appoint precinct officials, second by Member Hunter. Member Kemp pointed out that the statute addresses both precinct officials and precinct assistants as defined in §163-41(b). In response, Chair Carter again withdrew the previous motion and moved that the Board has exhausted its efforts to appoint chief judges and judges, second by Secretary Miller. Motion carried unanimously. Member Kemp said this finding allows the Chair to begin appointing precinct judges according to §163-41(d). Chair Carter acknowledged that interpretation may be right but has not studied subsection (d) yet and does not have a final opinion on that. Member Kemp moved that, where precincts do not currently have a Republican appointed as judge, identify those slots as Republican slots so that the Chair will seek to fill those positions with Republican appointees before considering Unaffiliated appointees, second by Member Bryan. Chair Carter opened the discussion by saying he does not support the motion at this time as he does not want to be pinned down, but also will not rule it out. He wants to study the statute, get other input, and then proceed as he finds appropriate. Member Hunter requested the Chair seek the guidance of the State Board of Elections regarding next steps, what the Board is required to do by law, and what the proper procedure is to carry out the next steps. Chair Carter agreed that would be appropriate and he will seek that guidance, but he will not commit to following that guidance until he sees it. Member Bryan said that seeking balance fits the broader goals and he does not want to abandon the progress made so far. Chair Carter invited the Board members to text him if they have further thoughts over the next few days. Member Kemp said that it is inappropriate to designate a vacancy as Unaffiliated because it is not a party, it is a voter status. Subsection (d) talks about parties, not voter status. If the Chair appoints an Unaffiliated voter to a position prior to consulting with the county chair of the Republican party for his recommendation, that appointment would be out of order and should not be accepted by the staff. Chair Carter acknowledged that Member Draft Board Meeting - 09/14/2021 Page | 24 Kemp has been right about a lot of what he has brought to the Chair’s attention over the past month and will weigh his input carefully. Hearing no further discussion, Chair Carter called the vote. Member Kemp voted aye; Chair Carter, Secretary Miller, Members Bryan and Hunter voted no. Motion fails for lack of a majority. GENERAL DISCUSSION Chair Carter called on Director Hunter-Havens for any general discussion. The Director reported that, due to the construction at the Government Center, staff will be unable to conduct testing in Suite 38 as planned due to hazards while the walls are going in. That wing of the building is closed during this phase of construction. Voting equipment testing will begin next week, will take about two and a half weeks, and use the Paynter Room adjacent to the Board office. Once testing is completed, the equipment will be moved back to the warehouse at the Government Center for secure storage and distribution from there when polling places are set up. There will be a sectioned-off area where observers may watch the process while staff maintains both physical and electronic security. Director Hunter-Havens asked if the Board has decided whether to cancel the September 28 meeting, so that proper notice of the meeting schedule change can be given? Member Hunter moved to cancel the September 28 meeting, second by Member Bryan. Chair Carter called for any discussion. Member Kemp asked when would the Board appoint precinct assistants to the various precincts? Chair Carter asked if the Board could take up that matter after acting on the motion on the floor. Member Hunter asked the Director whether she or the Board makes those appointments? Traditionally county boards of election staff across the state make those appointments, following the same statutory requirements for chief judges and judges, due to administrative deadlines. Applications are welcome, with or without party recommendations, we on-board as many as we can to fill vacancies that occur during One Stop voting or leading up to Election Day. Tuesday, September 21, is the cut-off date for receiving applications with the last information session for applicants on September 28. Training begins October 4. We cannot continue to push the administrative process beyond these deadlines and meet all the requirements to make the appointments, to conduct required information sessions, to perform required skill assessments, and to coordinate with the County Human Resources department to comply with employment and payroll procedures. Chair Carter acknowledged the time pressures and ruled the question not relevant to the motion on the floor. Member Kemp said the question is relevant to the motion because the Board may need to meet on September 28 to consider precinct assistant appointments. Chair Carter asked the Director if she had any further comments. Director Hunter- Havens said the staff will administratively be unable to on-board applicants and move forward with training the assistants and One Stop officials effectively for this election. Chair Carter asked if the Board must take action to approve that delegation, or is it more of a standing delegation? Director Hunter-Havens said it is a standing administrative delegation. One Stop officials and precinct assistants serve only from election to election, not a set term. The party chairs are welcome to submit or encourage people to Draft Board Meeting - 09/14/2021 Page | 25 submit applications for these positions. In larger elections deadlines must be set two months out to handle the volume, to get everyone on-board, through training and through the Human Resources procedures. Member Kemp read a portion of §163-42 (b) to the Board: The chairman of each political party in the county shall have the right to recommend from three to 10 registered voters in each precinct for appointment as precinct assistants in that precinct. If the recommendations are received by it no later than the thirtieth day prior to the primary or election, the board shall make appointments of the precinct assistants for each precinct from the names thus recommended…. By letting the deadline get too close creates an inappropriate administrative bypass. The proper way is to allow the county Republican Party chair nominate Republican precinct officials, especially in precincts in which a majority of the judges are Democrats. Chair Carter said Member Kemp might be right, but from the section of the statute he just read, there is an important distinction to be made for this election: this is not a primary election. It is a municipal election, and both of those are different from a general election. He is not prepared to render an opinion or intelligently discuss §163-42. He called on Member Hunter for her discussion. This item is not on the agenda for this meeting and certainly Board members can add items to the agenda. But this item is not before the Board today and was not added before the agenda was adopted. Member Kemp noted the Board has not had the General Discussion item yet. Chair Carter said the discussion is tied into the motion to cancel the meeting. While it has opened a can of worms, it is not out of order. Chair Carter called on Member Kemp for any further discussion. Member Kemp said his point is that, if the Board does not have an opportunity to appoint Republican judges, we must have the opportunity to appoint Republican precinct assistants. Chair Carter called for any further discussion. Member Bryan asked whether both parties could recommend precinct assistants? Chair Carter suggested that, with representatives of both parties present here, if they have recommendations, to email names to Director Hunter-Havens. We can consider them for either this election or the March 2022 primary. Director Hunter-Havens said it would be more helpful if anyone who wants to serve as an election official to complete the precinct official application on the county Board’s website. Applications will be accepted through Tuesday, September 21, but after that we do not have the capacity to reach out to interested individuals. Hearing no further discussion, Chair Carter called the vote on the motion to cancel the meeting scheduled for September 28. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp voted no. Motion carried. Chair Carter called for any further business to come before the Board. Hearing none, he called for a motion to adjourn. Draft Board Meeting - 09/14/2021 Page | 26 ADJOURNMENT Member Hunter moved that the meeting be adjourned at 8:42 p.m., second by Secretary Miller. Motion carried unanimously. The next Board meeting is scheduled to be held on Tuesday, October 5, 2021, at 5:00 p.m., at the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. APPROVED BY: RESPECTFULLY SUBMITTED: _______________________________ _____________________________ DERRICK R. MILLER RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Draft Special Meeting New Hanover County Board of Elections April 12, 2022 Subject: General Discussion Summary: This is an opportunity for discussion on other elections-related matters not included in the meeting agenda. Board Action Required: Discuss as necessary Item # 5 Draft