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Home My WebLink AboutBoard Meeting Agenda Packet 09-13-2022 MEETING AGENDA Date: September 13, 2022 Time: 5:15 PM Location: Bd of Elections Office, Long Leaf Room Type: Regular Scheduled Attendees: Oliver Carter III, Chair Rae Hunter-Havens, Elections Director Derrick R. Miller, Secretary Caroline Dawkins, Elections Deputy Director Lyana G. Hunter, Member Jenna Dahlgren, Elections Logistics Specialist Bruce Kemp, Member Joan Geiszler-Ludlum, Administrative Russ C. Bryan, Member Elections Technician Visitor(s): Lisa Wurtzbacher, Assistant County Manager; Kemp Burpeau, Deputy County Attorney 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 (June 30, 2022) 2. Public Comment and Question Period • 2-minute limit • 20-minute limit total 3. Director’s Report a. Financial Update b. List Maintenance 4. New Business a. Chair Carter’s Review of Preparation of Minutes o Outline Format o Transcripts o Audio Records b. Chair Carter’s Review of Appointment of Precinct Officials to Fill Vacancies o Existing Vacancies o Deadline for Party Chairs to Submit Nominations o Outlook for Additional Vacancies c. Chair Carter’s Review of Appointment of Precinct Assistants o Review of NC Gen. Stat. § 163-42 o Summary of the process followed until now o Update on recruitment o Summary of process going forward o Delegation from Board to Director of duty to appoint resident Precinct Assistants d. Chair Carter’s Review of Initial Review of Absentee Applications (Container-Return Envelopes) by Staff e. Chair Carter’s Review of Logic & Accuracy Testing 5. Adjournment *Agenda packets are sent via email in advance of meetings. Regular Meeting New Hanover County Board of Elections September 13, 2022 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Item # 1d Regular Meeting New Hanover County Board of Elections September 13, 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 6/30/2022 meeting. Board Action Required: Staff recommends approval Item # 1d Item # 1e Board Minutes 06/30/2022 Page | 1 SPECIAL MEETING New Hanover County Board of Elections June 30, 2022 1:00 P. M. 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 Technician Visitors: Lisa Wurtzbacher, Assistant County Manager; Kemp Burpeau, Deputy County Attorney Public Attendees: Elizabeth Burns, Jennifer Houseman, Derrick Anderson, Taxpayers; Rocky Jeter-Webb, Diane Zaryki, Concerned Citizens-Taxpayers; Deborah Abel, Nancy Hall, Pat Bradford; Susanne Werner, Richard Poole, NHCDP; Michael Werner; Sidney Hoover, Star-News Virtual attendees: None, livestreaming was not available 1. MEETING OPENING a. Call to Order Chair Carter called the meeting to order at 1:03 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 with Member Hunter arriving shortly after the meeting was called to order. b. Preliminary Announcements Chair Carter reminded the audience to silence their cell phones and that the meeting is being recorded and live streamed on the internet. All members were present. c. Pledge of Allegiance Chair Carter invited all in attendance to rise and recite the Pledge of Allegiance. Board Minutes 06/30/2022 Page | 2 d. Approval of Agenda Member Kemp moved approval of the agenda as presented, second by Secretary Miller. Motion carried unanimously. 2. New Business Chair Carter introduced the Board members and staff. He gave an overview of the purpose of the meeting: preliminary consideration of the protest petition filed by Jennifer Ingulli alleging a defect in the manner in which votes were counted in the New Hanover County Democratic Primary School Board contest, and alleging a violation of election law, irregularity, or misconduct sufficient to cast doubt on the apparent results of the election. Chair Carter said there is no public comment period or public participation due to the quasi-judicial nature of the proceeding. He reminded the audience again to silence their cell phones. Given the solemn nature of the hearing, he asked the Board to speak dispassionately and based on facts. Chair Carter outlined the due process considerations for the quasi-judicial hearing which assure that the tribunal, in this case the Board, is free of bias. He read from the School of Government Handbook the sections regarding bias and recusal of Board members in a quasi-judicial proceeding: The parties to this case are entitled to an impartial board. A board member may not participate in this hearing if she or he has a fixed opinion about the matter, a financial interest in the outcome of the matter, or a close relationship with an affected person. Does any board member have any partiality to disclose and recusal to offer? Hearing no offers to disclose, Chair Carter continued: It is the policy of this board that a recused member shall step down from the dais and may take a seat with the audience. The board member may return to the dais for the next matter. The parties to this case have rights for any ex parte communication to be disclosed. Ex parte communication is any communication about the case outside of the hearing. That may include site visits as well as conversations with parties, staff, or the general public. Does any board member have any conversations or other communications to disclose? Member Kemp asked Chair Carter to restate the section on ex parte communications. Chair Carter said ex parte communication means any communication outside of the hearing. Board members made the following disclosures regarding their ex parte communications: • Chair Carter said that he has had communication with the Director, Rae Hunter-Havens, regarding the protest and hearing procedures. • Member Kemp said he has had communication with Nelson Beaulieu and Jenna Bosch during the recounts and after the final recount; he spoke with the person who assisted the protester, Diane Zaryki; he has been in email communication with others. • Chair Carter said he has spoken with each board member regarding the filed protest and about recusal. Secretary Miller said he had questions about the various documents circulated by Member Kemp Board Minutes 06/30/2022 Page | 3 and whether those documents address the substance of the protest, intentions to protest and appeals, stances and conclusions about the issues. What are the implications of such statements? Chair Carter asked Member Kemp whether all the board members were copied on his emails. Member Kemp made the additional disclosure, regarding the June 10 meeting to discuss the sample hand-eye recount, that he intended to request a voluntary recount if the margin between Mr. Nelson and Ms. Bosch was not sufficient for the State Board of Elections (SBE) to order a full recount. He said SBE found the differences in the vote totals were within acceptable tolerances due to the differences between the sensitivity of the DS200s and the DS850. Chair Carter said now is not the time to re-air previous issues. Chair Carter noted that Member Kemp’s disclosures have been extensive. Chair Carter asked whether any member has a personal interest in the outcome of the protest; has prejudged the outcome of the preliminary review; or is biased? There was no response. Chair Carter said, based on the disclosures we’ve heard from the board concerning partiality and ex parte communications, does any member of the board or any party to this matter have an objection to a board member’s participation in this hearing? Member Hunter said she objects to Member Kemp’s participation based on his contacts with the parties to the protest and his name appearing as a witness on the submitted protest form. Chair Carter said that in an email the previous week, Member Kemp had stated his intention to recuse himself, but the previous day had said he had reconsidered, wanting to present information and then recuse himself on the vote on the matter. Chair Carter asked Member Kemp if he was confident that he could be impartial in light of his previous remarks? Member Hunter said she has questions about the substance of the assistance Member Kemp has provided to the protester. Member Kemp asked whether Member Hunter’s question is in order. Chair Carter ruled the question is in order. Member Kemp said he spoke with Diane Zaryki, and she used terms from those conversations in the protest form. Chair Carter asked Member Kemp if he had any subsequent discussions with Ms. Zaryki? Member Kemp said he had subsequent oral and email discussions. Chair Carter asked the nature of those discussions. Member Kemp said they discussed the protest process, his reading of the statutes and beyond that he is unable to recall but perhaps could refresh his memory by reviewing his emails. He said none of that prevents his impartiality in the hearing. Hearing no further objection and no motion to recuse any member, Chair Carter proceeded with the hearing. Chair Carter reviewed the matters to be considered in the hearing. First, the Board would consider any procedural issues, then address any substantive issues. These issues will be examined based on the four corners of the filed protest form. Chair Carter then reviewed the questions to be answered in the Board’s findings from the preliminary hearing: Procedural Analysis 1. Is the Board authorized to grant the relief sought by Ms. Ingulli? 2. Does Ms. Ingulli have standing to file an election protest in this recount? 3. Was the protest filed timely? a. 24-hour deadline under 08 NCAC 09.0116(g) b. 48-hour deadline under N. C. Gen. Stat. §163-182.9(a) Substantive Analysis 1. Regulations governing dismissal under 08 NCAC 02.0114 2. Probable cause 3. Do the issues raised in the protest establish probable cause that an irregularity occurred (quoting from the filed protest)? Board Minutes 06/30/2022 Page | 4 a. “Irregularities between elections & recounting was [sic] sufficient to flip the outcome twice?” b. “Number of votes tabulated & changed results make it unclear as to the actual winner?” c. “So many votes changed [that it is] not reasonable to conclude that either the process is accurate or that the voters determined the outcome of this election.” d. “Irregularities were to the extent that they taint the result of the entire race & cast doubt on its fairness.” e. “Printed procedures were not followed at recount.” 4. Does the Protest establish probable cause that the irregularity changed the outcome of the election? Member Kemp asked if impropriety is included in the term irregularity? Chair Carter said he is using irregularity to include violation and impropriety. Chair Carter checked in with the board members that they have had the opportunity to review the filed protest and related documents, then proceeded with the analysis laid out above, beginning with the question whether the Board is authorized to grant the relief sought by the protestor. Member Kemp asked if the question of the scope of Board’s authority is required by NC Gen. Stat. §163-182.9? Chair Carter said it is a basic jurisdictional issue whether the matter lies within the Board’s authority. Member Kemp said he does not see any such criteria listed in NC Gen. Stat. §163-182.11 as a basis for appeal. Chair Carter said the Board is not considering an appeal. Member Kemp said he misspoke and meant the protest. Chair Carter referred him to NC Gen. Stat. §163-182.9(b)(3). In response to further question from Member Kemp, Chair Carter said that the protest is not justiciable if the remedy requested is not one that the County Board of Elections can grant. Member Kemp said the standard is whether the protest as filed substantially complies with the requirements of §163- 182.9. That determination requires the Board to view the protest filing in its entirety, not looking at any one factor. He said that is the purpose of the preliminary hearing and he is challenged by Chair Carter’s conclusion. Chair Carter moved to find that the protest is improperly filed because this Board is not authorized to grant the remedy the protester seeks, second by Member Hunter, stating that she agrees with that conclusion and there is no need to go beyond that consideration. Chair Carter called for any discussion. Member Kemp said §163-182.10 presents two questions to consider in the preliminary hearing: whether the protest substantially complies with §163-182.9 and whether it establishes probable cause to believe that a violation of election law or irregularity or misconduct has occurred. He said the answer to both questions is yes. Chair Carter said he disagreed and directed the Board’s attention to §163-182.10(d)(2)(a). Secretary Miller called the question. Member Kemp said §163-182.10(d) applies to the actual hearing, not the preliminary hearing which is addressed in §163-182.10(a). Member Hunter said §163-182.10(a)(1) contains the same language as (d). Member Kemp said §163-182.10(c) also requires hearing new evidence. Member Bryan said the prescribed protest form is addressed to the county board of elections but is also used to file a protest with the State Board of Elections. The protest requests that a new election be held, which can only be granted by the State Board of Elections. In this case, the protest could be filed with the State Board to seek that remedy. Chair Carter said the form is used for filing a protest with either Board of Elections. [Staff advised the Board that the meeting livestream, audio, and recording capability were not available due to an unscheduled software update. Director Hunter-Havens began audio recording the meeting. The recording is available on the New Hanover County Board of Elections website, Board Minutes 06/30/2022 Page | 5 https://elections.nhcgov.com/wp-content/uploads/2022/07/06.30.2022-BOE-Meeting.m4a.] Chair Carter restated the motion on the floor is to dismiss the protest because it seeks relief this Board is not authorized to grant. He said that the Board will continue through the other criteria as well even if this motion is adopted. He called for the votes. Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp abstained. Motion carried by majority vote. Chair Carter moved to the next consideration, whether Ms. Ingulli has standing to file an election protest of this recount. He reviewed the hierarchy of the various applicable sources of law: first, the General Statutes, then regulations in the Administrative Code, then formal guidance from the State Board, then informal guidance from the State Board. It is important to remember that hierarchy as the Board considers this question of standing. He said that the regulation in the NC Administrative Code, 08 NCAC 09.0106(g) states that any candidate shall have the right to file a protest within 24 hours after completion of a discretionary recount, or by noon on the next business day of the county board of elections, whichever is later, if the protest is related to the conduct of the recount and may only address allegations related to the recount. In comparison, NC Gen. Stat. §163-182.9(a) states any eligible voter in the election or any candidate may file a protest. Where there is tension between the statute and regulation, it is the Board’s duty to give effect to both. But where they are in conflict, the Board must enforce the statute. Chair Carter said in his opinion the usual hierarchy does not apply because the statute, in two places, explicitly authorizes the State Board of Elections to promulgate rules for conducting recounts, subject to stated guidelines. (NC Gen. Stat. §163-182.7(a)) Therefore, more weight must be given to the regulation, 08 NCAC 09.0106(g), which allows only candidates to file a protest of a recount, instead of the broader statutory rule allowing candidates and eligible voters to file an election protest. Chair Carter moved to dismiss the protest because Ms. Ingulli lacks standing to file this protest, second by Secretary Miller. Chair Carter called for any discussion of the motion and directed the Board’s attention to the materials in the agenda packet. Secretary Miller said he wanted it noted that, were the statute to control, it would render the regulation meaningless. Member Bryan asked whether the basis for dismissal is solely the provision in the Administrative Code that only a candidate can file a protest and the protester is not a candidate? Chair Carter cautioned the Board about relying on the red book of Election Laws and Related Rules because it is now out of date and the current versions are available online. Chair Carter said the basis for dismissal is the Administrative Code requirement that only a candidate may file a protest of a discretionary recount. Member Bryan noted that the protest form allows filing by either a candidate or an eligible registered voter, but in this situation involving a recount, only a candidate is eligible to file a protest. Chair Carter confirmed that is his conclusion, and added that is the closest question before the Board. Member Bryan said that was also one of the bases for the Director’s recommendation to dismiss the protest. Member Bryan said he wondered what the objection is to that recommendation. Either you are or you are not a candidate who is eligible to file the protest. He said he would like to hear more on that question. Member Kemp said that NC Gen. Stat. §163-182.7 governs ordering recounts and §163-182.7A sets additional provisions for hand-eye recounts. The protest alleges irregularities between the result of the original election canvass and the result of the recount. It is not about ordering recounts or conducting hand-eye recounts. He contends the matter before the Board is an election protest, not a recount protest, and therefore standing is determined by §163-182.9(a), not by the NCAC regulation. Member Bryan asked Member Kemp for clarification: are you saying there is an irregularity between the result of the election and the recount? Member Kemp said that is the protest’s first allegation. Member Bryan asked if it is an irregularity or a difference? Board Minutes 06/30/2022 Page | 6 Member Kemp said irregularity is defined in the statute. Member Kemp said he bases that on his conversations with the writer of the protest. Member Bryan said he had previously understood Member Kemp to say he had not had conversations with the writer. Member Kemp said he spoke with Diane Zaryki who is listed in item 11 as having assisted the protester in preparing the protest form, which he had disclosed earlier. He never spoke with Ms. Ingulli. He said he checked the voter registration database to confirm that the protester is an eligible registered voter because she is registered as an unaffiliated voter. Secretary Miller asked what constitutes an irregularity? There is a difference between an irregularity and an expectation. It is his understanding that a change in the vote totals between Election Day and the recount is not an irregularity but rather an expectation. He said he understands an irregularity as something that is contrary to procedure or a regulation. Chair Carter said that is more a substantive issue, but the procedural and the substantive issues bleed into each other. Determining an irregularity is an issue for later in the preliminary hearing. Member Hunter said she wanted to return to the objection she raised earlier regarding Member Kemp’s participation in the hearing. She understands that Member Kemp said he has spoken with the person who wrote the protest and assisted the person who wrote the protest. She understands those conversations occurred both verbally and by email. She said she is not sure how a board member can be an unbiased participant in the hearing in light of those conversations. It is not one conversation about his concerns being mirrored in the protest, but a matter of on- going conversations that occurred in writing and orally, both before and after the protest was filed. She said she objects to Member Kemp’s participation in the hearing and these discussions because he appears biased. Coupled with the emails the Board has received over the past two weeks from Member Kemp in which he has outlined his thoughts and position about different board members participation, she is having a hard time imagining how anyone can be impartial under these circumstances. She now wishes to object to his continued participation and offered to make a motion to recuse Member Kemp. He has declined to recuse himself, although a week ago he said he would probably recuse himself for these reasons. She said she wanted to be clear that she has this concern with this matter going forward, and having a discussion with people who have had no contact with the folks who filed the protest versus a person who has had ongoing conversation with the person who assisted the protester in writing the protest. Chair Carter said he understands Member Hunter’s concerns and that she can make a motion that another Board member be recused, that is permissible. That motion would require a second and discussion, and would be decided by a majority. Member Hunter moved that Member Kemp be recused for the remainder of the preliminary consideration hearing. Chair Carter called for a second. Member Kemp objected that there is a motion already on the table. Chair Carter said that is his motion which is a substantive motion, and this is a procedural motion that the Board should go ahead to consider. Secretary Miller seconded Member Hunter’s motion for purposes of discussion. Chair Carter called for discussion of the motion to recuse Member Kemp for the remainder of the hearing. Member Kemp would make a countermotion that there appears to be a significant bias against the protest by most of the parties participating in this discussion. It does not appear to be a balanced evaluation of the concerns expressed by the protester, and it seems that from the beginning we have had that bias. He said he would call into question the perceived bias of every player aside from him regarding the conduct of this protest. Member Bryan asked Member Kemp if he is saying the Chair is biased? Member Kemp said no, rather many of the comments and actions and the dismissal document are against the protester. There does not appear to him to be an open mind here to evaluate the protest. Member Bryan said the Board is not here to evaluate the substance of the protest obviously, that this is a procedural review of the format. He said all Board Minutes 06/30/2022 Page | 7 this is irregular in that neither candidate is supporting this protest, but we need to approach it dispassionately and he certainly does not want his fairness called into question because he may come down on a different side than Member Kemp. Member Bryan said he is doing his very best to follow the regulations and the laws in applying those to the facts and circumstances presented. Unlike a regular hearing of some type, we have been provided all the evidence well in advance so that we might review it and research as you have yourself. That some members may have come to some conclusions on some aspects is not surprising to him. But I do not conclude that indicates bias. Member Kemp said that would be his statement too. Secretary Miller offered one thought and one question. He is not clear how far the Board can apply quasi-judicial principles here. He asked if it is normal for a judge in a case to have on- going conversations with the participants before hearing the case, issuing long statements to members of the public before it comes before the tribunal. He said he is not sure how far to take that analogy, but he said it strikes him that these extended documented statements sent out to the public and these on-going conversations before and after the filing of the protest strikes him as unjudicial. He said he would like to hear Member Bryan’s views as he is the only Board member of the same party as Member Kemp and is not the subject of the motion. Member Kemp asked the Chair to restate Secretary Miller’s question as he did not follow it. Chair Carter said Secretary Miller asked for Member Bryan’s view on the motion. Member Bryan said he is unlikely to vote in favor of this motion because he feels it is incumbent on all the members to determine and evaluate their level of participation in producing the protest and advising others. He is not aware of the depth of that involvement, but was approached by someone who told him that Member Kemp was on the radio discussing aspects of the protest. Member Kemp said he had not discussed the protest on the radio, but has discussed the election and recount process as a regular commentator on all elections. Member Bryan said he is not in a position to fully understand Member Kemp’s involvement, but he regularly attempts to be balanced in his decisions. Member Bryan said he hopes nothing he said in this discussion causes Member Kemp to think he is biased, but, again, he is not likely to vote for this motion. Member Kemp said he wanted to note that he was the only Board member who attended the entirety of the second recount, except for lunch time on Thursday. Chair Carter thanked him again for making himself available throughout that time, as the presence of one Republican Board member was required to be there and he was very generous with his time and flexibility. Member Kemp said he wanted to acknowledge all the facts and circumstances of the recount, not necessarily about his role. Chair Carter said where he comes down on this motion is that the Board should recuse Member Kemp, based on the number of communications and the detailed nature of the communications over the last week and a half. Chair Carter said he thinks he understands Member Kemp’s concerns, but this is not the appropriate procedural vehicle to hear those concerns. He said he fears that, in the remainder of these proceedings, even though Member Kemp wants to be unbiased and approach this with an open mind and do his duty, he thinks it is appropriate for Member Kemp to be recused. He would be welcome to remain in the meeting and listen. Chair Carter said this is not a judicial proceeding. It is a quasi-judicial proceeding. Chair Carter said he is very uncomfortable with the way this protest has come about and the degree of Member Kemp’s involvement in it, not personally but from a quasi-judicial perspective. Hearing no further discussion, Chair Carter called for the vote on the motion to recuse Member Kemp for the duration of the preliminary consideration hearing. Chair Carter, Secretary Miller and Member Hunter voted aye; Members Bryan and Kemp voted no. Motion carried by majority Board Minutes 06/30/2022 Page | 8 vote. Chair Carter directed Member Kemp to a reserved seat in the audience. Chair Carter returned to consideration of the substantive motion before the Board, whether the protester has standing to file an election protest of the recount. Pursuant to the regulation under discussion, the protester does not have standing. The question before the Board is whether the protester has standing under the statute, NC Gen. Stat. §163-182.7. We are considering the two enabling clauses, specifically §§163-182.7 and 182.9(a), specifically directing the State Board of Elections to adopt rules and regulations for the conduct of recounts. Chair Carter said, in his view, those enabling clauses elevate the regulation, in this narrow instance of a recount, to a superior position to the statute which applies more generally to protests. It is for that reason that he made the motion, which has been seconded, that the protest should be dismissed because the protester lacks standing. Member Hunter said she is thinking that this explanation, along with Secretary Miller’s question, why we have this code if we are not supposed to follow it. Taken together she agrees with that view, that the protester does not have standing. Chair Carter confirmed it is the basis for his standing argument, that 08 NCAC 09.0106 is the operative provision, and the broader, more general provision in the statute does not apply in this special situation, citing §163-182.9(a). After reviewing the cited statute and regulation, Member Bryan said Chair Carter’s reasoning and analysis is probably right, but he is not confident in that conclusion. Hearing no further discussion, Chair Carter called for a vote on the motion to dismiss the protest because the protester lacks standing to file a protest of the recount because she is not a candidate. Chair Carter, Secretary Miller, and Member Hunter voted aye; Member Bryan voted no. Motion carried by majority vote, establishing a second independent basis for dismissal. Chair Carter moved to the third potential basis for dismissal, whether the protest was filed timely. He said this consideration turns on the same issue the Board previously discussed: NC Gen. Stat. §163-182.9(b) sets a 48-hour deadline after canvass to file a protest concerning the counting or tabulating of votes, including a statement of good reason for delay, while 08 NCAC 09.0106(g) sets a deadline of 24 hours or noon the following day, whichever is later, after a recount concerning the conduct of the recount. He said it is important for the Board to consider each basis for dismissal separately, on its own merits, from the two prior considerations. Chair Carter moved the protest should be dismissed because it was not filed by the applicable deadline. Chair Carter called for any discussion. Member Bryan asked for clarification of the time the protest was filed. Chair Carter confirmed the protest was filed at 2:40 p.m. on June 17. The recount concluded with adjournment at 1:16 p.m. on June 16. That also marks the conclusion of the final canvass for purposes of §163- 182.9(b). Member Bryan recalled having previous discussion as to when the clock started on any protest that might be filed by a candidate. Chair Carter said even though the Board has already determined that this protester lacked standing to file the protest, the Board should consider the question of the timeliness of filing the protest separately. That prompts him to ask the question this way: if the protester had standing to file the protest under §163-182.9(a), was the protest filed in accordance with the deadline in that provision of the statute? He noted further that the regulation sets the protest filing deadline as 24-hours from the conclusion of the recount, which the protester did not meet, while the statute sets two different deadlines: one is before the beginning of the county canvass meeting, which for the purposes of this discussion was the June 16 meeting; the other is 5:00 p.m. of the second business day after the county board has completed its canvass and declared the results. If there is an argument that the second deadline applies here, then the protest would be filed timely. The second deadline would apply (1) if the protester presented good cause for the delay, which it does not attempt to do in his opinion; or (2) Board Minutes 06/30/2022 Page | 9 the protest addresses an irregularity other than vote counting or result tabulation. This is where the issue bleeds from procedural analysis into substantive analysis because we must review the substance of the protest to what the protest is alleging. Secretary Miller said he seconded Chair Carter’s motion and said he agreed that the protest did not meet the deadline set in 08 NCAC 09.0106(g), and that the canvass ended upon the publication of the results. As for the statute deadline, while the protest form does not state a good reason for delay, it does allege an irregularity in the last allegation, that printed procedures were not followed in the recount, while the other allegations which are called irregularities in fact are not irregularities. Chair Carter said he understands the distinction Secretary Miller is making, and the fifth allegation comes closest to stating an irregularity, but it lacks sufficient specificity to amount to a true allegation of fact. After he wrestled with it, Chair Carter concluded that an allegation of fact sufficient to withstand this level of review need not be very detailed, but it needs to say something more specific. Here, the Board had numerous printed documents providing guidance to the Board, none binding on the Board, other than the statutes and the regulations. The authority to conduct the recount is vested in this Board. This is getting into a substantive discussion, but since the protest does not allege with any specificity what act or omission was improper, he cannot even find it to be a statement of fact. The Board is not obligated to second- guess what the protester is trying to say. When it comes to a formal, solemn, serious, quasi- judicial proceeding, it is incumbent on the protester to set forth the reasons for the protest, with reasonable specificity, what the Board is alleged to have done wrong. Generally, protests that don’t contain that level of substance are dismissed summarily and administratively. If there were a well-stated allegation of fact, for instance, about procedure not followed, then he would agree that this protester could file this protest, if also meeting the other standing requirements. Member Hunter agreed that the challenge with the allegation is that it is too generic. The last line might at best open the door but what does it point to? “Printed procedures” could refer to anything. If the protest stated a specific concern with the referenced procedures, it might be sufficient, but as presented it is too vague. Chair Carter noted that the protester checked the box on the Election Protest Form that states the protest alleges “a violation of election law, irregularity, or misconduct sufficient to cast doubt on the apparent result of the election.” But then in question 6, which asks for factual allegations supporting the protest, there is only the conclusory statement that “printed procedures were not followed at recount.” Member Bryan said that he understands all that and noted that a protest heard by the previous Board was voted for hearing because the protest listed specific evidence for the allegations. He objected to it then because it did not seem to have substance. If a protester is going to make an allegation, they need to be prepared to substantiate it. If they do not, it must be dismissed. These forms are signed under penalty of perjury and in front of a notary. Anyone who is signing the form in the face of a Class I felony, Member Bryan said he wants to give them the benefit of the doubt. The statement goes on to say that the protester acknowledges she must “prove by substantial evidence either the existence of a defect in the manner by which votes were counted or results tabulated or the occurrence of a violation of election law, irregularity, or misconduct, either of which were sufficient to cast doubt on the apparent results of the election.” Member Bryan said, when someone is willing to subject themselves to a Class I felony, he wants to believe they are taking the matter seriously and have actual, substantial evidence of the alleged irregularities. He said he wants to give them the benefit of the doubt and hear their basis for the allegation. He said he has concerns with lots of aspects of this protest. But as to the motion before the Board regarding the 24-hour filing deadline, he said the protest fails. Chair Carter said the motion is whether it should be dismissed on the alternative grounds that the Board Minutes 06/30/2022 Page | 10 protester did not allege a substantive irregularity sufficient to avail herself of the 48-hours after canvass deadline. Member Bryan asked if the motion is stated in the alternative, and Chair Carter said it is. Member Bryan said he appreciates that Chair Carter is going through each requirement, even though he feels it is not necessary, and respects his purpose to air out all the issues. The Board could have stopped after the first vote, but maybe it is best to go through each element. He favors the longer time frame and acknowledges it is a close call. Chair Carter said it is appropriate to identify all applicable bases on which the protest may be dismissed and address each one in the Board’s final order, for the benefit of the candidates, the protester and the public. Chair Carter addressed Member Bryan’s view to give the protester the benefit of the doubt on signing the form in the face of the penalty of a Class I felony, but said he had a different view. He said he was surprised the protester would swear under penalty of perjury that her statements were true to her own knowledge and then put down things that were not of her own knowledge. Member Bryan said it is a good reminder that you do not file a protest because someone told you something. Member Hunter raised a point of clarification, whether it makes sense to consider, if the 24-hour deadline applies, what is the board’s position? If the 48-hour deadline applies, what is the Board’s position? She said it may be better to separate the two considerations since the Board is working through each ground. She said it is getting confusing as to which time frame to apply. In response to a question from Chair Carter, Member Hunter said she is suggesting two different motions to make it cleaner and clearer. Chair Carter withdrew his previous motion and made a new motion to dismiss the protest because it was not filed within 24 hours of the final canvass and therefore, even if the protester has standing to file the protest, under 08 NCAC 09.0106(g), the protester failed to meet the applicable deadline, second by Secretary Miller. Chair Carter called for any further discussion. In response to a question from Member Bryan, Chair Carter clarified that the motion is a conditional statement, that if 08 NCAC 09.0106(g) applies to this protest, it does not meet the 24-hour deadline. After additional discussion, Chair Carter restated his motion: he moved the protest should be dismissed because, even if the protester is found to have standing to file the protest under 08 NCAC 09.0106(g), it was not filed within 24 hours and was therefore not timely filed, second by Member Hunter. Motion carried unanimously. Chair Carter moved to dismiss the protest because, even if the deadline set forth by NC Gen. Stat. §163-182.9 is found to apply, the protest does not sufficiently allege an irregularity so as to be entitled to avail herself of the 48-hour post-canvass deadline, second by Member Hunter. Chair Carter called for any discussion. Secretary Miller reviewed the requirements of NC Gen. Stat. §163-182.9: a. If the protest concerns the manner in which votes were counted or results tabulated, the protest shall be filed before the beginning of the county board of election's canvass meeting. Secretary Miller said this section requires the protest to be filed before the canvass meeting and this protest clearly was not filed timely. b. If the protest concerns the manner in which votes were counted or results tabulated and the protest states good cause for delay in filing, the protest may be filed until 5:00 P.M. on the second business day after the county board of elections has completed its canvass and declared the results. Board Minutes 06/30/2022 Page | 11 Secretary Miller noted that the protest challenges the manner in which votes were counted in sections 5 and 6. Chair Carter said this provision is a two-part standard: the protest must both allege that and state good cause for delay. Secretary Miller said the Board’s previous discussion was that the protest failed to state good cause for delay and that was not contested among the Board members, although it was not voted upon. He concluded that section b does not apply. c. If the protest concerns an irregularity other than vote counting or result tabulation, the protest shall be filed no later than 5:00 P.M. on the second business day after the county board has completed its canvass and declared the results. Secretary Miller said this is where the Board debated whether the allegations of an irregularity are sufficiently substantive. Chair Carter said, if the protest met this criterion, the Board would find that the protest was filed before 5:00 P.M. on the second day after completion of the canvass. Secretary Miller said the Board is not actually debating the timeliness of filing the protest but rather the type of irregularity alleged, namely an irregularity other than vote counting or result tabulation. Chair Carter said this requires the Board to engage in some level of substantive analysis to determine whether the statement rises to the level of an allegation. Member Bryan has said that he is inclined to allow some leeway to the protester. Chair Carter said his sense is that the statement does not rise to an actual allegation. People filing protests must be diligent and seek the help of an attorney. He said he is not inclined to give that level of deference to the protester. Secretary Miller said he finds it confusing that the Board is discussing timing when the real question is, first, does it concern an irregularity other than vote counting or result tabulation, and second, then timing comes into the discussion. He would like to consider whether it meets the first criteria separately, and then the timing issue. Chair Carter asked if it would be helpful to table his motion, proceed to discuss the substantive issues, and then return to this question. Secretary Miller agreed that would be helpful. Chair Carter said the statute asks the Board to conduct both procedural and substantive review of the protest, which will automatically answer this procedural question under discussion. Member Bryan said the Board is honing in on an unrelated issue but he does not oppose doing so. Chair Carter moved to table his previous motion, second by Secretary Miller. Hearing no additional discussion on the motion to table, Chair Carter called for the vote. Motion carried unanimously. Chair Carter said the Board will proceed with discussion of the substantive analysis. He directed the Board’s attention to 08 NCAC 02.0114, Dismissal of Improper Protest Filings. Chair Carter read subsection (a): (a) The county board of elections shall dismiss any matter purporting to arise as an election protest under G.S. 163-182.9 on the following bases: (1) The matter fails to contest the manner in which votes were counted or results tabulated, or fails to allege a violation of election law or irregularity or misconduct sufficient to cast doubt on the results of the election; (2) The individual submitting the matter was neither a registered voter eligible to participate in the protested contest within the county nor a candidate for nomination or election in the protested contest; (3) The matter was not filed in accordance with G.S. 163-182.9 or was not filed on the form prescribed in 08 NCAC 02 .0111; (4) The protest is duplicative or was made for the purpose of delay; (5) The protest filing, taking into account the totality of the circumstances, fails to include evidence which, if true, substantiates the probable occurrence of an Board Minutes 06/30/2022 Page | 12 outcome-determinative defect in the manner in which votes were counted or results tabulated, or the probable occurrence of an outcome-determinative violation of election law, irregularity, or misconduct; or (6) The matter, including the initial filing and all subsequent oral or written submissions, fails to allege facts sufficient to constitute substantial evidence of the occurrence of an outcome-determinative violation of election law, irregularity, or misconduct. The State Board may consider protests in accordance with G.S. 163-182.12. Member Hunter asked that the quality of the audio recording be checked since the Board is taking up discussion of a substantive manner. Both Chair Carter and Director Hunter-Havens are recording the meeting on their cell phones in the absence of the usual livestream audio and video recording. In response to Member Bryan’s question about the necessity of a recording, Director Hunter-Havens said that recording the preliminary consideration of the protest is optional. Should the matter move to a hearing, the services of a court reporter for a transcript would be required. Chair Carter noted the six listed bases for dismissal of the protest. If the Board determines that the protest fits any one of these descriptions, then the Board will dismiss the protest. Numbers (3) and (4) are not so much substantive as procedural, while (1), (5) and (6) are substantive in nature. He read those subsections and said there is a lot going on in each one. Chair Carter said what all three sections have in common is that the protest must allege, regardless of the act or omission stated, it must have altered the outcome of the election. That is one part of the Board’s substantive inquiry. The second part is whether the allegation establishes probable cause that the act or omission changed the outcome. Chair Carter said he found this confusing initially because he did not see anything in the statutes, but then found a line of cases where the courts have consistently held that if the allegation is not outcome-determinative, or alleged to be outcome- determinative, it does not get a hearing. He said the decisions are clear and consistent over time: the irregularity alleged must be sufficient to determine the outcome or alter the results of the election. He noted that all three subsections of section (a) contain that language: “sufficient to cast doubt on the results of the election.” One thing the Board must consider is whether this protest sets forth probable cause that anything happened that changed the outcome. Another component is this: does the protest set forth probable cause that an irregularity occurred, meaning misconduct, irregularity or violation of election law, three related concepts appearing throughout the statutes and regulations. Here, this protest does not allege any violation of election law and no misconduct is alleged. Instead, the petition alleges irregularities. That is the analysis: does it set forth probable cause that an irregularity occurred, and does it set forth probable cause that the irregularity affected the outcome of the election. The statements contained in this protest are largely attempting to express discomfort with how close the election contest was; how successive recounts affected the vote totals in the contest; how the number of votes changed, suggesting that the vote totals would change if counted again. Chair Carter said he thinks those are the three concerns this protester attempts to articulate. But none of those are irregularities. Chair Carter said this is an extremely close election for this school board contest, and are not decided by two votes very often. The legislature has set a special set of procedures that apply when an election is close, meaning within one percent of the vote total. Those procedures were followed here because the results in this contest met those criteria. What the legislature and State Board of Elections have not done is set another set of procedures to be followed when an election result is super-duper close. While the concerns behind this protest are valid, he does not think those concerns indicate an irregularity in the recount. His conclusion is that none of these statements put forth probable cause that an irregularity occurred. Most are conclusory statements and express discomfort with the results of the recount. Board Minutes 06/30/2022 Page | 13 Chair Carter moved that the protest should be dismissed because it does not set forth probable cause that any irregularity, violation of law, or misconduct occurred, second by Secretary Miller. He called on the Board to discuss the motion. Member Bryan said he agrees as to allegations one through four, but the fifth allegation, alleging printed procedures were not followed, if proved by substantial evidence, would also require evidence that the violation altered the outcome. He said he is aware that this protester would not be able to know whether the printed procedures were followed. He said while he agrees about the first four allegations, he struggles with the fifth allegation. Chair Carter said that the concept of probable cause in the civil versus criminal context is less well known, but the State Board has provided guidance on evaluating probable cause which was included in the agenda materials: Probable cause is a commonsense, practical standard: Is the material submitted by the protester sufficient for a reasonable and prudent person to believe that the apparent result of the election was swayed by election law violations, irregularity, or misconduct. It does not mean than such a belief is necessarily correct or more likely true than false. A probability of an outcome-determinative irregularity is sufficient.1 Member Bryan asked whether “probability” means more likely than not, or does it mean possibility. Chair Carter said it means “possibility,” adding that a well-written protest must include a forecast of the evidence to be successful. Member Hunter said that, in the criminal context, the standard is “more likely than not,” which is not a high bar but does require overwhelming evidence to meet the standard. She added that these allegations do not meet that criteria when this protest lacks any specificity of the basis for the allegation and is insufficient for the Board to consider further. Hearing no further discussion, Chair Carter called for the vote on the motion that the protest should be dismissed because it fails to establish probable cause that an irregularity, violation of election law, or misconduct occurred. Motion carried unanimously. Chair Carter said the next item is consideration whether the protest establishes probable cause that any irregularity affected the outcome of the election. The question seems nonsensical since the Board has determined that no actual irregularity is alleged and should be answered no. Chair Carter moved that the protest should be dismissed on the basis that it does not establish probable cause that any irregularity affected the outcome of the election, second by Secretary Miller. Motion carried unanimously and establishes a separate basis for dismissal. Chair Carter said that brings back the tabled motion and moved to recall the tabled motion for consideration, second by Member Hunter. Motion carried unanimously. Chair Carter restated the motion: does the protest set forth sufficient allegation of irregularity that was properly and timely filed, assuming that the protester was eligible to file the protest, second by Secretary Miller. Motion carried unanimously and establishes a separate basis for dismissal. Chair Carter said the next step is to prepare an order and distributed a draft for the Board members to review, which will need revision to reflect the Board’s decisions in the preliminary hearing. Member Kemp asked if he may return to the dais, and Chair Carter agreed. Member Bryan asked if the Board must review and vote on the order today, and is the order the basis for 1 State Board of Elections, “Election Protest Procedures Guide,” last updated June 27, 2022. Emphasis in the original. Board Minutes 06/30/2022 Page | 14 any appeal, or is review de novo? Chair Carter asked the Board members to review the draft for its accuracy in reflecting their decisions today. Deputy County Attorney Burpeau said an appeal is likely de novo, but it is good to have an order documenting this Board’s actions and rationale. He said he was impressed with the Board’s thoroughness in their deliberations in the hearing and consideration of the alternative contingencies. Chair Carter noted that the meeting has already exceeded the allotted time and that some Board members may need to leave. He suggested the members review the proposed order now, identify necessary changes, and vote to approve it subject to those revisions. He would like to have it officially entered by tomorrow for service on the protester. [Chair Carter left the meeting, turning the chair over to Secretary Miller.] The Board members reviewed the draft order and noted several revisions to be made. [Chair Carter returned to the meeting and resumed the chair.] Member Kemp asked Deputy County Attorney Burpeau whether having a pre-drafted order indicates bias against the protest, suggesting a decision was already made before the hearing. Deputy County Attorney Burpeau said the hearing indicated the Board was meticulous in looking at all the different issues set forth and drawing conclusions. In courts and other contexts, it is not unusual to have a draft order presented. He said he does not see that as prejudicial action. Member Kemp asked about the statutory provisions for appeal, NC Gen. Stat. §163-182.11, where it allows for an amended protest or appeal to the State Board. His question is whether this Board would hear an amended protest. Chair Carter said he is not sure. Member Kemp said he understands the denial of the protest is due to the lack of specifics in the support of the allegations in paragraph 6 of the protest. This presumes that any protester has access to knowledge of those specifics and other challenges related to rulings regarding this protest address whether the protester has standing to file the protest and whether it was timely filed. Would an amended protest come back before the County Board of Elections? Chair Carter said he has not looked at that question and is not sure how an amended protest would work. Director Hunter-Havens said an amended protest must also be filed by the established deadlines. Member Bryan said that the established deadlines are intended to allow public confidence in the election results. He said it makes no sense to him to allow amendment of a dismissed protest that has not passed procedural analysis. The same protester with the same issues should not be permitted a second bite of the apple. Chair Carter directed the Board’s attention back to the proposed order. Board members pointed out several changes to be made. Chair Carter proposed that the Board vote to approve the draft order as he will amend it based on Board-suggested revisions, send it to Director Hunter-Havens for the Board to sign by July 5. Chair Carter moved approval of the order, subject to technical corrections submitted to him within 18 hours by the Board members, second by Secretary Miller. Motion carried unanimously. 3. ADJOURNMENT Chair Carter moved to adjourn, second by Member Hunter. Motion carried unanimously. The meeting adjourned at 3:29 pm. The next Board meeting is scheduled to be held on July 12, 2022, at 5:15 p.m. in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. Board Minutes 06/30/2022 Page | 15 APPROVED BY: RESPECTFULLY SUBMITTED BY: __________________________ __________________________________ DERRICK R. MILLER RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Regular Meeting New Hanover County Board of Elections September 13, 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 # 1d Item # 2 Regular Meeting New Hanover County Board of Elections September 13, 2022 Subject: Director’s Report Summary: a. Financial Update The attached reports provide the Board with a budget update, including the following: • Salaries and Benefits expended through FY22-23 2nd Period (August) • Operating Expenses expended through FY22-23 2nd Period (August) • Grand Total expended through FY22-23 2nd Period (August) b. List Maintenance Update Per data provided from the Statewide Elections Information Management System (SEIMS), the New Hanover County Board of Elections completed the following: • Removed 900 voters from the voter registration rolls in August 2022 consistent with NC Gen. Stat. §163-82.14. • Processed 1,379 new registration forms, 1,000 duplicate registration forms, and 1,236 registration update forms in August 2022. Document/s Included: Financial Year-To-Date Budget Report 2nd Period (August); NVRA Report August 2022; NVRA Visualizations Report; NVRA Report Definitions Board Action Required: Discuss as necessary Item # 2 Item # 3 NEW HANOVER COUNTY - LIVE YEAR-TO-DATE BUDGET REPORT Report generated: 09/09/2022 13:28User: rhavensProgram ID: glytdbud Page 1 FOR 2023 02 ACCOUNTS FOR: ORIGINAL TRANFRS/ REVISED AVAILABLE PCT110 GENERAL FUND APPROP ADJSTMTS BUDGET YTD ACTUAL ENCUMBRANCES BUDGET USE/COL 16 BOARD OF ELECTIONS 10 CHARGES FOR SERVICES 11016102 400122 COUNTY CANDIDAT -15 0 -15 .00 .00 -15.00 .0%* 11016102 400165 FEES -153,901 0 -153,901 .00 .00 -153,901.00 .0%* 11016102 400370 PRINTING FEES -100 0 -100 .00 .00 -100.00 .0%* TOTAL CHARGES FOR SERVICES -154,016 0 -154,016 .00 .00 -154,016.00 .0% 60 SALARIES & BENEFITS 11016100 610000 SALARIES AND WA 460,334 0 460,334 45,063.11 .00 415,270.89 9.8% 11016100 611500 CASUAL PART TIM 341,867 0 341,867 3,991.19 9,950.00 327,925.81 4.1% 11016100 611600 OVERTIME PAY (O 8,227 0 8,227 53.65 .00 8,173.35 .7% 11016100 621000 SOCIAL SECURITY 34,809 0 34,809 3,476.49 .00 31,332.51 10.0% 11016100 622000 RETIREMENT-LOCA 55,884 0 55,884 5,477.17 .00 50,406.83 9.8% 11016100 623500 GENERAL 401-K M 11,509 0 11,509 1,127.94 .00 10,381.06 9.8% 11016100 625000 MEDICAL INSURAN 76,216 0 76,216 7,723.83 .00 68,492.17 10.1% 11016100 626000 LONG TERM DISAB 1,243 0 1,243 77.97 .00 1,165.03 6.3% TOTAL SALARIES & BENEFITS 990,089 0 990,089 66,991.35 9,950.00 913,147.65 7.8% 70 OPERATING EXPENSES 11016100 700000 CONTR SERVS 191,057 0 191,057 9,428.96 38,223.04 143,405.00 24.9%11016100 700330 RENT 1,750 0 1,750 125.00 .00 1,625.00 7.1%11016100 700350 ADVERTISING COS 2,025 0 2,025 .00 .00 2,025.00 .0%11016100 700365 CELLULAR EXPENS 0 0 0 2,274.80 .00 -2,274.80 100.0%*11016100 700370 POSTAGE EXPENSE 38,980 0 38,980 1,482.64 .00 37,497.36 3.8%11016100 700430 M&R-EQUIPMENT 50,855 0 50,855 .00 .00 50,855.00 .0%11016100 700500 PRINTING 54,795 0 54,795 498.92 1,756.48 52,539.60 4.1%11016100 700512 PRINTER-COPIER 7,000 0 7,000 101.42 .00 6,898.58 1.4%11016100 700520 SUPPLIES 84,495 0 84,495 1,582.82 .00 82,912.18 1.9%11016100 700700 DUES & SUBSCRIP 470 0 470 99.99 .00 370.01 21.3%11016100 700825 EMPLOYEE REIMBU 250 0 250 69.38 .00 180.62 27.8%11016100 700905 TRAINING & TRAV 6,500 0 6,500 851.11 .00 5,648.89 13.1% NEW HANOVER COUNTY - LIVE YEAR-TO-DATE BUDGET REPORT Report generated: 09/09/2022 13:28User: rhavensProgram ID: glytdbud Page 2 FOR 2023 02 ACCOUNTS FOR: ORIGINAL TRANFRS/ REVISED AVAILABLE PCT110 GENERAL FUND APPROP ADJSTMTS BUDGET YTD ACTUAL ENCUMBRANCES BUDGET USE/COL 11016100 701050 INSURANCE&BONDS 66,326 0 66,326 22,839.20 .00 43,486.80 34.4% TOTAL OPERATING EXPENSES 504,503 0 504,503 39,354.24 39,979.52 425,169.24 15.7% TOTAL BOARD OF ELECTIONS 1,340,576 0 1,340,576 106,345.59 49,929.52 1,184,300.89 11.7% TOTAL GENERAL FUND 1,340,576 0 1,340,576 106,345.59 49,929.52 1,184,300.89 11.7% TOTAL REVENUES -154,016 0 -154,016 .00 .00 -154,016.00 TOTAL EXPENSES 1,494,592 0 1,494,592 106,345.59 49,929.52 1,338,316.89 NEW HANOVER COUNTY - LIVE YEAR-TO-DATE BUDGET REPORT Report generated: 09/09/2022 13:28User: rhavensProgram ID: glytdbud Page 3 FOR 2023 02 ORIGINAL TRANFRS/ REVISED AVAILABLE PCT APPROP ADJSTMTS BUDGET YTD ACTUAL ENCUMBRANCES BUDGET USE/COL GRAND TOTAL 1,340,576 0 1,340,576 106,345.59 49,929.52 1,184,300.89 11.7% ** END OF REPORT - Generated by RAE HUNTER-HAVENS ** NEW HANOVER COUNTY BOARD OF ELECTIONS NVRA REPORT Reporting Period:-8/1/2022 8/31/2022 Totals Active 151,908 Inactive 26,751 Total Registration 178,659 REPORTING PERIOD Registrations Approved 991 Total Registrations Removed 900 Inactive Registrations Removed 165 New Registrations 00 - No Application Source 9 01 - Public Assistance 23 02 - Disability 2 03 - Other (ESC) 0 04 - Armed Forces 0 05 - DMV 1,132 06 - Mail-in 53 07 - In-person 22 08 - Library & High School 1 09 - Spanish Language Application 0 10 - Online Registration 89 17 - Registration Drives 47 21 - Medicaid Renewal 1 96 - Temporary FWAB Registrant 0 97 - Temporary FPCA Registrant 0 1,379 Duplicates 00 - No Application Source 4 01 - Public Assistance 4 02 - Disability 0 03 - Other (ESC) 0 04 - Armed Forces 0 05 - DMV 156 06 - Mail-in 593 07 - In-person 14 08 - Library & High School 0 09 - Spanish Language Application 0 10 - Online Registration 41 17 - Registration Drives 14 21 - Medicaid Renewal 3 95 - Voter Return of NCOA 121 96 - Temporary FWAB Registrant 0 97 - Temporary FPCA Registrant 2 98 - Voter Change On Confirmation 9 vtr_nvra_stat.rpt Page 1 of 5Sep 09, 2022 2:52 pm NVRA REPORTNEW HANOVER COUNTY BOARD OF ELECTIONS 99 - Voter Change On Verification 39 1,000 vtr_nvra_stat.rpt Page 2 of 5Sep 09, 2022 2:52 pm NVRA REPORTNEW HANOVER COUNTY BOARD OF ELECTIONS Changes of Information 00 - No Application Source 26 01 - Public Assistance 13 02 - Disability 1 03 - Other (ESC) 0 04 - Armed Forces 0 05 - DMV 554 06 - Mail-in 280 07 - In-person 33 08 - Library & High School 0 09 - Spanish Language Application 0 10 - Online Registration 114 17 - Registration Drives 43 21 - Medicaid Renewal 2 95 - Voter Return of NCOA 111 96 - Temporary FWAB Registrant 0 97 - Temporary FPCA Registrant 9 98 - Voter Change On Confirmation 23 99 - Voter Change On Verification 27 1,236 Verifications # of 1st & 2nd verification mailings sent 3,695 # of 1st NCOA mailings sent 0 # of 1st verification returned undeliverable 2,564 # of verification returned by voter 65 Confirmations # of confirmations returned by voter 32 # of confirmations sent 2,470 # of confirmations returned undeliverable 13 # of confirmations not returned at all 22 COUNTY STATISTICAL Constitution 0 Democratic 51,696 Green 1 Libertarian 1,507 Republican 53,998 Unaffiliated 71,457 American Indian 393 Asian 1,381 Black 19,771 Multi-Racial 955 Native Hawaiian or Pacific Islander 11 White 137,615 Other 3,774 Undesignated 14,759 Hispanic 3,820 Not Hispanic 120,018 Undesignated 54,821 vtr_nvra_stat.rpt Page 3 of 5Sep 09, 2022 2:52 pm NVRA REPORTNEW HANOVER COUNTY BOARD OF ELECTIONS Female 87,624 Male 74,813 Undesignated 16,222 Unprocessed Registrations - Incomplete Queue 00 - No Application Source 13 01 - Public Assistance 13 02 - Disability 2 03 - Other (ESC) 0 04 - Armed Forces 0 05 - DMV 204 06 - Mail-in 20 07 - In-person 0 08 - Library & High School 0 09 - Spanish Language Application 1 10 - Online Registration 1 17 - Registration Drives 11 21 - Medicaid Renewal 0 95 - Voter Return of NCOA 44 96 - Temporary FWAB Registrant 0 97 - Temporary FPCA Registrant 1 98 - Voter Change On Confirmation 13 99 - Voter Change On Verification 5 Unprocessed Registrations - Archive Queue 00 - No Application Source 0 01 - Public Assistance 0 02 - Disability 0 03 - Other (ESC) 0 04 - Armed Forces 0 05 - DMV 0 06 - Mail-in 9 07 - In-person 0 08 - Library & High School 0 09 - Spanish Language Application 0 10 - Online Registration 0 17 - Registration Drives 0 21 - Medicaid Renewal 0 95 - Voter Return of NCOA 0 96 - Temporary FWAB Registrant 0 97 - Temporary FPCA Registrant 0 98 - Voter Change On Confirmation 0 99 - Voter Change On Verification 0 Unprocessed Registrations - Review Queue 00 - No Application Source 0 01 - Public Assistance 0 02 - Disability 0 03 - Other (ESC) 0 04 - Armed Forces 0 05 - DMV 50 06 - Mail-in 0 07 - In-person 0 vtr_nvra_stat.rpt Page 4 of 5Sep 09, 2022 2:52 pm NVRA REPORTNEW HANOVER COUNTY BOARD OF ELECTIONS 08 - Library & High School 0 09 - Spanish Language Application 0 10 - Online Registration 9 17 - Registration Drives 0 21 - Medicaid Renewal 0 96 - Temporary FWAB Registrant 0 97 - Temporary FPCA Registrant 0 vtr_nvra_stat.rpt Page 5 of 5Sep 09, 2022 2:52 pm 0 5000 10000 15000 20000 25000 30000 35000 40000 45000 50000 APPROVED REG REMOVED REG NVRA Monthly Statistics: Total Removed and Approved Registrations Jan-20 Feb-20 Mar-20 Apr-20 May-20 Jun-20 Jul-20 Aug-20 Sep-20 Oct-20 Nov-20 Dec-20 Jan-21 Feb-21 Mar-21 Apr-21 May-21 Jun-21 July-21 Aug-21 Sep-21 Oct-21 Nov-21 Dec-21 Jan-22 Feb-22 Mar-22 Apr-22 May-22 Jun-22 Jul-22 Aug-22 0 10000 20000 30000 40000 50000 60000 NEW DMV REG NEW REG ALL OTHERS DMV DUPLICATES ALL OTHER DUPLICATES DMV INFO CHANGE ALL OTHER INFO CHANGE NVRA Monthly Statistics: Voter Registrations Jan-20 Feb-20 Mar-20 Apr-20 May-20 Jun-20 Jul-20 Aug-20 Sep-20 Oct-20 Nov-20 Dec-20 Jan-21 Feb-21 Mar-21 Apr-21 May-21 Jun-21 July-21 Aug-21 Sep-21 Oct-21 Nov-21 Dec-21 Jan-22 Feb-22 Mar-22 Apr-22 May-22 Jun-22 Jul-22 Aug-22 0 20000 40000 60000 80000 100000 120000 140000 160000 180000 1ST & 2ND VERIFICATIONS MAILED 1ST NCOA MAILED UNDELIVERABLE 1ST VERFICATION RETURNED VERIFICATIONS MAILED CONFIRMATIONS RETURNED CONFIRMATIONS UNDELIVERABLE CONFIRMATIONS NVRA Monthly Statistics: Voter Card Mailings Jan-20 Feb-20 Mar-20 Apr-20 May-20 Jun-20 Jul-20 Aug-20 Sep-20 Oct-20 Nov-20 Dec-20 Jan-21 Feb-21 Mar-21 Apr-21 May-21 Jun-21 July-21 Aug-21 Sep-21 Oct-21 Nov-21 Dec-21 Jan-22 Feb-22 Mar-22 Apr-22 May-22 Jun-22 Jul-22 Aug-22 NVRA The SBE has an automated process, so there is no need to submit the report on a monthly basis, it is available for counties that would like to run the report for informational use. NVRA Report definitions: Prior to reviewing the NVRA report the following items need to be considered  Statistics are based on a time period  Temporary voters are ignored in these statistics.  These are interpretations of the SEIMS NVRA reports, not anything generated outside the SEIMS application.  See NVRA change explanation in the supplemental section. Description Definition Registrations Approved Number of verified voters during the time period. This is based off the following verification description: ‘NEW VOTER: VERIFIED’ Total Registrations Removed Number of voters that had their status changed to REMOVED during the time period Inactive Registrations Removed Number of voters that had their status changed from INACTIVE to REMOVED during the time period Total Registrations Removed Number of voters that had their status changed to REMOVED during the time period New Number of NVRA flagged new voter records by source code during the time period. Sources ‘15’, ‘17’, ‘19’ are combined into ‘05’, ‘07’, ‘09’ respectively. Sources ‘98’ and ‘99’ are ignored because these are change source codes Change Number of NVRA flagged change voter records by source code during the time period. Sources ‘15’, ‘17’, ‘19’ are combined into ‘05’, ‘07’, ‘09’ respectively Duplicate Number of NVRA flagged duplicate voter records by source code during the time period. Sources ‘15’, ‘17’, ‘19’ are combined into ‘05’, ‘07’, ‘09’ respectively Verification:# of 1st & 2nd verification mailings sent This is based off the following verification descriptions: ‘NEW VOTER: 1ST VERIFICATION PENDING’, ‘NEW VOTER: 2ND VERIFICATION PENDING’, ‘VOTER CHG: 1ST VERIFICATION PENDING’, ‘VOTER CHG: 1ST VERIFICATION PENDING’, ‘LIST MAINT: 1ST VERIFICATION PENDING’ Verification:# of 1st verification returned undeliverable Number of 1st verification mailings returned undeliverable to the county during the time period. This is based off the following verification descriptions: ‘NEW VOTER: ADDR CONFIRMATION TO FWD ADDR (PRIOR TO MAILING)’, ‘NEW VOTER: 2ND VERIFICATION (PRIOR TO MAILING)’, ‘VOTER CHG: ADDR CONFIRMATION TO FWD ADDR (PRIOR TO MAILING)’, ‘VOTER CHG: ADDR CONFIRMATION TO OLD ADDR (PRIOR TO MAILING) Verification:# of verification returned by voter Number of verifications returned to the county by the voter during the time period. This is based off of source code ‘99’ changes Confirmation:# of confirmations returned by voter Number of verifications returned to the county by the voter during the time period. This is based off of source code ‘98’ changes Confirmation:# of confirmations sent Number of verifications returned to the county by the voter during the time period. This is based off of source code ‘98’ changes Confirmation:# of confirmations returned undeliverable Number of confirmation mailings returned undeliverable to the county during the time period. This is based off the reason changes to ‘CONFIRMATION RETURNED UNDELIVERABLE’ Confirmation:# of confirmations not returned at all Number of confirmation mailings not returned to the county at all during the time period. This is based off the reason changes to ‘CONFIRMATION NOT RETURNED’ Supplemental Explanation – NVRA Change/Duplicate Description For 1/7/2012 forward: NOTE: An NVRA Voter Change is marked if one of the following fields is changed (with a non-administrative change).  Name  Mailing Address  Birth Date  Party  Residential Address NOTE: An NVRA Duplicate is marked if a voter change occurs but was not one of the fields indicated above to represent an NVRA change. Prior to 1/7/2012: NOTE: An NVRA Voter Change is marked if any of the fields below are updated for a voter.  Drivers license  Gender  Confidential Flag  Race  Party  Precinct  Mailing Address  Status  Municipality  Phone number  Name  Ward  Birth date  Residential Address  SSN NOTE: An NVRA Duplicate is flagged if none of the above occur, but one of the following fields are changed:  Reason  Registration date  Source  Application date  Comments  Language Regular Meeting New Hanover County Board of Elections September 13, 2022 Subject: Chair Carter’s Review of Preparation of Minutes Summary: Chair Carter has requested a new business item to review the preparation of minutes, including outline format, transcripts, and audio records. Board Action Required: Discuss As Necessary Item # 2 Item # 4a Regular Meeting New Hanover County Board of Elections September 13, 2022 Subject: Chair Carter’s Review of Appointment of Precinct Officials to Fill Vacancies Summary: Chair Carter has requested a new business item to review current vacancies, deadline for party chairs to submit nominations, and outlook for additional vacancies. Board Action Required: Discuss As Necessary Item # 2 Item # 4b Regular Meeting New Hanover County Board of Elections September 13, 2022 Subject: Chair Carter’s Review of Appointment of Precinct Assistants Applicable Statutes and/or Rules N.C. Gen. Stat. § 163-42 Summary: Chair Carter has requested a new business item to review the appointment of precinct assistants, including the review of NC Gen. Stat. § 163-42, summary of the process followed until now, update on recruitment, summary of process going forward, delegation from Board to Director of duty to appoint resident precinct assistants. Document/s Included: NHC Board of Elections Chair, Oliver Carter III, Memo: Appointment of Precinct Assistants per N.C. Gen. Stat. § 163-42 Board Action Required: Discuss As Necessary Item # 2 Item # 4c To: New Hanover County Board of Elections Rae Hunter-Havens, NHC Elections Director From: Oliver Carter III, NHC Board of Elections Chair Date: September 9, 2020 Re: Appointment of Precinct Assistants per N.C. Gen. Stat. § 163-42 MEMORANDUM I. Introduction This memo summarizes the process for appointing Precinct Assistants. This memo first describes the statutory process by which Precinct Assistants are to be appointed. Next the memo reviews the process that has evolved in New Hanover County over decades and that has been followed in recent elections. The third portion of this memo describes the process currently in place for appointing Precinct Assistants for the 2020 general election. Fourth, the memo describes the process to be followed when a vacancy arises in the office of Precinct Assistant. II. Precinct Assistants Aid the Chief Judge and Judges and Help Run the Polling Place Precinct Assistants are election officials who serve under the three Judges in each precinct. Precinct Assistants perform almost all of the work required to run a polling place. They check in voters, confirm that the voters are registered, process the voters’ “Authorization to Vote” forms, issue ballots, direct voters throughout the process, assist voters when questions arise, direct them to insert the ballot into the scanner, give them an “I Voted” sticker, and perform myriad other administrative functions throughout the day. Each polling site generally has between six and twelve1 Precinct Assistants at any given time, depending on the expected number of voters and the experience level and skill sets of the Precinct Assistants at that site. 1 The CBE may appoint “two or more” PAs. N.C. Gen. Stat. s. 163-42(a). 2 III. N.C. Gen. Stat. § 163-42 Sets Forth the Process for Appointing Precinct Assistants A. The Five Overarching Statutory Rules for Appointing Precinct Assistants 1. The Board may appoint two or more PAs per precinct Section 163-42 sets forth five fundamental rules regarding PAs2. The first rule is the number of PAs. By law, the CBE may appoint “two or more assistants for each precinct to aid the chief judge and judges.” N.C. Gen. Stat. § 163-42(a). 2. PAs must be qualified voters of New Hanover County Second, “Assistants shall be qualified voters of the county in which the precinct is located.” Id. The meaning of the word “qualified” is not absolutely clear, but it most likely refers to the minimum baseline requirements for all POs that are set forth in 163-41: in addition to being registered voters in NHC, they must be able to read and write and must be of good repute. N.C. Gen. Stat. § 163-41. They may not be candidates, relatives of candidates, or Party Officers. Id. 3. Within each precinct, the Board must appoint an equal number of PAs from each political party or must at least make a good faith effort to do so Third, “an equal number of [PAs] shall be appointed from different political parties, unless the requirement as to party affiliation cannot be met because of an insufficient number of voters of different political parties within the county.” Id. This third requirement—the same number of Democratic PAs and Republican PAs within each precinct—is the starting point for this rule; the best practice and highest goal is absolute parity in the partisan composition of the PAs within a precinct. At the same time, this rule contains an important caveat: “unless the requirement as to party affiliation cannot be met because of an insufficient number of voters of different political parties within the county.” Id. Although the statute refers to “an insufficient number of voters of different political parties within the county,” we interpret this to mean an insufficient number of voters within the county who are willing and able to serve as PAs. This is the only logical construction of this phrase—the number of voters in a party is utterly irrelevant to the appointment of PAs; it is the number of PAs from that party with which the statute is concerned. If we have too few PAs from one party or the other who can work this year, then we might not be able to achieve strict parity. The third requirement is qualified further by the penultimate sentence of subsection 163- 42(b), which provides that “the county board shall assure, wherever possible, that no precinct has precinct officials all of whom are registered with the same party.” N.C. Gen. Stat. § 163-42(b).3 2 We exclude from this memo the rule regarding precincts with less than 500 voters as we have no such precincts. 3 It is difficult to discern whether the use of the term “precinct officials”—a term defined in 163-41 to include Chief Judges, Judges, and Precinct Assistants—is deliberate in this instance. Read literally, the standard set forth by this 3 Thus, if a County Board makes a good faith effort to achieve strict parity but comes up short, then it is excused from strict compliance by subsection (b). Unaffiliated voters may be appointed as PAs. The appointment of unaffiliated PAs may help achieve partisan parity. For example, in a precinct with eight PAs, the Board may appoint three PAs who are Democrats, three PAs who are Republicans, and two PAs who are unaffiliated. In precincts where one Party Chair has recommended more names than the other Party Chair, the appointment of unaffiliated PAs may play a crucial role in achieving partisan balance. These unaffiliated voters might also help us comply with the residency requirement, discussed below. 4. A majority of the PAs in each precinct must be residents of that precinct The fourth overarching rule is a prohibition: “In no instance shall the county board appoint nonresidents of the precinct to a majority of the positions as precinct assistant within a precinct.” N.C. Gen. Stat. § 163-41(b). There is no exception or caveat to this rule—it is ironclad. However, this provision only applies to appointments by “the county board”, not to appointments by the Chair in order to fill vacancies. 5. PAs serve for one election only Unless otherwise specified, PAs serve “for the particular primary or election for which they are appointed….” N.C. Gen. Stat. § 163-42(d). In other words, they serve a term of only one election. Therefore, PAs must be appointed by the County Board before every primary election, before every general election, before every municipal election, and before any other type of election. The Board may appoint PAs for longer terms, but it must do so explicitly. Id. B. The Statutory Process for Appointing Precinct Assistants 1. When Party Chairs timely recommend resident PAs, the Board must make the initial round of appointments from those recommendations The first step is for the County Party Chairs “to recommend from three to 10 registered voters in each precinct for appointment as precinct assistant in that precinct.” N.C. Gen. Stat. § 163-42(b). If the Board receives these recommendations by the 30th day before the election (this year it is October 8, 2022), then it must make appointments “from the names thus recommended.” Id. The prepositional phrase “from the names thus recommended” is important. This phrase means that the Board is not required to appoint all of the names recommended by the Party Chairs, even when all of those names are qualified resident voters. In other words, the Board may pick and choose which of the recommended people it will appoint as PAs. rule would not prohibit a situation in which all of the PAs within a precinct were members of the same political party so long as one of the Judges or the Chief Judge was not a member of that party. 4 There are several good reasons why the statute provides the Board with this flexibility. First, the Party Chairs together might nominate more PAs for a precinct than the Board needs. Each Party Chair may recommend up to 10 people per precinct. If both Chairs did so, there would be 20 PAs nominated for a single precinct. This is more PAs than most precincts need; indeed, upon information and belief, there is not a single precinct in NHC that requires 20 PAs, even in a presidential election4. Second, if one Party Chair nominates more PAs in a given precinct than the other Party Chair nominates, then the Board can only achieve partisan parity by appointing less than all of the PAs recommended by the Party Chair who submitted the greater number. For instance, if the Democratic Party Chair recommended two PAs for a precinct and the Republican Party Chair recommended four names for that precinct, then it appears that the Board could only comply with the requirement for strict parity by appointing less than all of the PAs nominated by the Republican Party Chair. Third, when the Party Chairs between them nominate more than enough PAs for a certain precinct, the statutes vest some discretion in the Board to not appoint a person who has been recommended by a Party Chair. There could be times when a Party Chair recommends an individual who meets the minimum baseline qualifications but lacks certain other skills that the Board deems necessary for the position. Similarly, there could be times when a Party Chair recommends a person who is otherwise qualified but has certain character traits that, in the view of the Board, render the person unfit for service as a Precinct Assistant. The Board makes this initial round of appointments by majority vote. Accordingly, the Board may delegate this authority to the Director by majority vote. So long as the Director abides by the rules set forth in the statutes, she may exercise the authority delegated to her by the Board in order to make the initial round of appointments of qualified resident PAs. The Director may not appoint any PAs who have not been recommended by a Party Chair unless that authority is delegated to her by the entire Board unanimously. 2. Only When the Recommendations of the Party Chairs Are Insufficient May the Board Appoint Resident PAs Who Were Not Recommended “If the recommendations of the party chairs for precinct assistant in a precinct are insufficient, the [CBE] by unanimous vote of all of its members may name to serve as precinct assistants in that precinct persons who were not recommended by the party chairs.” N.C. Gen. Stat. § 163-42(b). Accordingly, the second step in the process of appointing PAs is to consider those individuals who reside in a precinct but were not nominated by the Party Chairs. Step 2 is when the Director and her staff may propose to the Board the names of people whom the Director 4 NHC requires PAs to work full days even though it could choose to allow PAs to work less than a full day if it wished, N.C. Gen. Stat. s. 163-42(a). If PAs were working less than a full day, it is conceivable that one precinct could need 20 PAs. 5 and her staff have identified as being willing and able to serve but who were not recommended by either Party Chair. Although the statute says that the Board “may appoint” Precinct Assistants under this step, the language of Step 3 suggests that the Board’s discretion under Step 2 is circumscribed. The Board may only make appointments under Step 3 after it “diligently” seeks to fill the positions by following Step 2. The use of the word diligently in this context indicates that the Board must have a clearly identifiable and relevant reason for refusing to appoint one or more individuals who are eligible under Step 2 but nonetheless proceeding to Step 3. Last but not least, appointments under Step 2 may only be made unanimously. 3. The Board May Only Appoint Nonresident PAs When the Recommendations of the Party Chairs Are Insufficient and When the Board Has Made Diligent Efforts to Appoint Resident PAs Again, the Board may only proceed to appoint PAs under Step 3 when it has “diligently” sought to fill all of the positions by appointments under Step 2. Under Step 3, the residency requirement is waived, and the Board may appoint any qualified person who resides anywhere in the county. They Board may only do so by unanimous vote. IV. With the Acquiescence of Both Political Parties, Recent Practice Has Departed from Strict Compliance with the Statutes Governing the Appointment of PAs A. In Recent Years, the Political Parties Have Not Nominated Precinct Assistants For many years now, the Party Chairs in New Hanover County apparently have not exercised their prerogative to recommended individuals to serve as Precinct Assistants. The Party Chairs have regularly nominated individuals for the offices of Chief Judge and Judge but not for the office of Precinct Assistants. B. In Recent Years, the Director Has Handled the Process of Appointing and Assigning Precinct Assistants Lacking any nominations from Party Chairs, the Director has quite properly taken responsibility for recruiting, appointing, and assigning individuals who are willing to serve as Precinct Assistants. Many of these individuals have served in numerous elections over a long period of time. These individuals are referred to as being “in the pool” of potential election officials. Some of them serve in every election or almost every election. The Director’s practice has previously been to email those people who are in the pool of potential election officials one or more “availability surveys” before each election in order to gauge who is interested in serving and in what capacity—OSEV worker, Precinct Assistant, Judge, or 6 Chief Judge.5 Based on the responses to the availability survey, the Director has assembled teams in each precinct who work well together and possess among them all of the skills that are necessary to make sure that a polling site will is well run. Once her teams are assembled, the Director has then either asked the Board to ratify the teams of Precinct Assistants or has inferred the Board’s approval. C. The De Facto Process for Appointing Precinct Assistants That Evolved in New Hanover County Has Served Everyone Well for Many Years This has been a win-win-win-win arrangement for everyone. The County Party Chairs have excused themselves from the laborious and often futile task of recruiting Precinct Assistants before each and every election. The Board has been excused from investing its limited time in this matter. The Director and her staff have had a free hand in assigning election officials based on their skill set rather than their partisan affiliation or the precinct in which they reside. And perhaps the voters have won most of all, for they have enjoyed election officials in every precinct who were assigned based on their skill set, the needs of the precinct, and the officials’ own preferences rather than on a partisan basis. In this arrangement we see the elevation of professionalism over partisanship. V. This Year the Party Chairs Will Recommend Precinct Assistants A. The Statutory Deadline for Party Chairs to Submit Their Recommended Precinct Assistants to the Board is October 8, 2022 The statutory deadline for those recommendations is 30 days prior to the election—in this case, October 8, 2022. N.C. Gen. Stat. § 163-42(b). Pursuant to this law, County Party Chairs may nominate individuals to serve as Precinct Assistants up until this deadline. As explained above, if a County Party Chair nominates qualified residents of the precinct on or before this deadline, the Board is required to appoint Precinct Assistants from the names submitted by the Party Chairs. The Board will gladly accept recommendations from the Party Chairs before the deadline in order to help the Director and the Board finalize the appointments as early as possible. 5 While Chief Judges serve for a two-year term per statute, they have previously been afforded wide latitude as to whether they actually work in every election during their term; a Chief Judge or Judge who has opted out of working in a particular election has not previously been deemed by the Director to have vacated the office, and under this reasoning there has been no need for a new Chief Judge or Judge to be appointed. This approach of “administratively assigning” Chief Judges, Judges, and Precinct Assistants has made it much easier for the Director and her staff to create teams of precinct officials at each precinct who work well together and possess among them all of the necessary skills in order to assure that a polling site will is well run. 7 B. To Allow Time for Training and Processing, No Additional People Will Be “Onboarded” After September 2, 2022 The Director and her staff become very busy with election-related duties beginning 2-3 months before an election. Generally speaking, the bigger the election, the busier they are. In the month or so leading up to an election, the Director and her staff are continuously working overtime in order to make sure that the OSEV sites are open and operational on day one and then that the polling places are all ready to go first thing in the morning on Election Day. The Director reports that these duties are so extensive that they leave no time for onboarding additional election officials. In order to manage her time and her staff’s time effectively, the Director has determined that no additional individuals will be “onboarded” after September 2. This means that nobody else may be brought into “the pool” of potential election officials after September 2. If a qualified voter comes forward during September and offers to serve as a Precinct Assistant, they will not be eligible to do so because the Director and her staff do not have the capacity to “onboard” that person and add them to the pool. 1. What is the “Administrative Onboarding” Process? The administrative onboarding process consists of at least six steps: • First, a qualified voter submits an application which is processed by the Director and her staff and/or New Hanover County HR; • Second, they attend an information session presented by the Director or her staff; • Third, they complete a skills assessment administered by the Director or her staff; • Fourth, they submit required documentation to NHC Human Resources6, including: i. Form I-9 and supporting documentation to establish their citizenship, ii. Form W2 for required tax reporting information, iii. Direct Deposit information so that they may be paid by the County; • Fifth, upon information and belief, the County conducts a background check; and • Sixth, they attend a training session conducted by the Director or her staff. 2. What training are Precinct Assistants required to complete? The training session is required by law. N.C. Gen. Stat. § 163-82.24(a) (“The [SBE] shall promulgate rules for the training of precinct officials, which shall be followed by the county boards of election.”); see also N.C. Gen. Stat. § 163-46 (“The…director…shall conduct an instructional meeting prior to each primary and general election….”) 6 The NHC Board of Elections has entered into a Memorandum of Understanding with New Hanover County (“the County”). Pursuant to the MoU, the County handles most of the Board’s human resources responsibilities. 8 The SBE has issued at least one rule regarding such training: “The…[Board] shall conduct an instructional meeting before any primary or election to instruct the precinct officials in the use of the voting system. … The training shall be sufficient such that the precinct officials shall be qualified to instruct the voters on the use of the voting system.” 08 NCAC 04 .0305. There might be other statutes and regulations governing the training received by precinct officials, and upon information and belief, the actual training that PAs in NHC receive also covers policies and procedures other than the use of the voting system. 3. What other administrative onboarding steps must Precinct Assistants complete? Currently, all potential precinct officials must submit their paperwork to New Hanover County Human Resources before they are “in the pool” of potential election officials. County HR struggles to accommodate the Board’s needs in the months before the elections, and potential election officials are only allowed to come to County HR at certain times of day and on certain days of the week. A bottleneck exists in this step of the onboarding process. 4. The Board is legally obligated to pay Precinct Assistants, and therefore the Board is required to comply with all applicable labor and employment laws The law in North Carolina requires Chief Judges, Judges, and Precinct Assistants to be paid. N.C. Gen. Stat. § 163-46 (“Assistants, appointed pursuant to G.S. 163-42 shall be paid…for their services….” (emphasis added)). The legal requirement for the Board to pay Precinct Assistants triggers several other legal requirements. First, pursuant to the Immigration Reform and Control Act of 1986, the County HR must verify every employee’s citizenship status and eligibility to work, generally through the employee’s submission of a Form I-9 under penalty of perjury and the County’s review of the I-9 and required identification. 8 U.S.C. § 1324a; 8 CFR § 274a.10; 28 U.S.C. § 1746. Second, each employee must complete and submit the appropriate wage withholding forms, generally Form W- 9, Form W-4, and Form NC-4. See, generally, N.C. Gen. Stat. Ch. 96, Employment Security Law; 04 NCAC Ch. 24. Further, the Memorandum of Understanding between the Board and the County requires the potential PAs to be processed through NHC Human Resources. The County procures workers compensation and general liability insurance for all employees, including Precinct Assistants. If a Precinct Assistant were not covered by that insurance, and if an accident happened, the Board of Elections could incur substantial liability. VI. When a Vacancy Arises in the Office of Precinct Assistants, the Chair Appoints a New Precinct Assistant to Fill the Vacancy A Precinct Assistant is one type of Precinct Official. N.C. Gen. Stat. § 163-41(b). Chief Judges and Judges are the other types of Precinct Officials. Id. The process for appointing a new 9 Precinct Assistant to fill a vacancy is the same as the process for appointing a new Chief Judge or Judge to fill a vacancy in one of those offices. N.C. Gen. Stat. § 163-41(d). The process is similar to the process by which the Board appoints Precinct Assistants in the first place: A. First, the Board Chair asks the County Party Chair for nominations. B. If the County Party Chair nominates a qualified voter who resides within the precinct, the Chair must appoint that person. C. If the County Party Chair nominates a qualified voter who does not reside within the precinct, the Board Chair may appoint that person but is not obligated to. D. If for some reason the Board Chair cannot consult with the Party Chair, or if the Party Chair nominates a nonresident whom the Board Chair declines to appoint, then the Board Chair must still appoint “a person who belongs to the same political party as that to which the vacating official belonged when appointed.” VII. Conclusion The less formal process that evolved in New Hanover County served our voters well for a considerable period of time. However, the County Republican Party has recently experienced an increase in the number of its members who are willing to serve as Precinct Assistants, and it has asked that they be appointed in the manner set forth in the statutes. It is therefore appropriate for our Board to return to the statutory process for appointing Precinct Assistants. Regular Meeting New Hanover County Board of Elections September 13, 2022 Subject: Chair Carter’s Review Initial Review of Absentee Ballot Applications (Container-Return Envelopes) Summary: Chair Carter has requested a new business item to review the initial review of absentee applications (Container-Return Envelopes). Board Action Required: Discuss As Necessary Item # 2 Item # 4d Regular Meeting New Hanover County Board of Elections September 13, 2022 Subject: Chair Carter’s Review of Logic & Accuracy Testing Summary: Chair Carter has requested a new business item to review logic and accuracy testing. Board Action Required: Discuss As Necessary Item # 2 Item # 4e Regular Meeting New Hanover County Board of Elections September 13, 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