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HomeMy WebLinkAboutBoard Meeting Agenda Packet 11-15-2022MEETING AGENDA Date: November 15, 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 Joan Geiszler-Ludlum, Administrative Elections Bruce Kemp, Member Technician Russ C. Bryan, Member Jenna Dahlgren, Elections Logistics Specialist Noelle Powers, Elections Systems Specialist Beth Pugh, Elections Specialist 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 2.Statutorily-Required Business •Review of Absentee Ballot Applications 3.Public Comment and Question Period •2-minute limit •20-minute limit total 4.General Discussion 5.Adjournment *Agenda packets are sent via email in advance of meetings. Regular Meeting New Hanover County Board of Elections November 15, 2022 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Item # 1d Regular Meeting New Hanover County Board of Elections November 15, 2022 Subject: Review of Absentee Ballot Applications Applicable Statutes and/or Rules N.C. Gen. Stat §§ 163-229(b), 163-230.1(f), 163-231(b)(2), 163-234(11), and 103-5, NCSBOE Numbered Memos 2022-15, 2022-09, 2022-11, 2021-07, 2021-03, 2020-29 and 2020-25 Summary: For the 2022 General Election, civilian ballots that arrive at a county board of elections office by 5:00 pm on Monday, November 14, 2022, are deemed timely if they are postmarked on or before Election Day. In most elections, the statutory deadline for the return of civilian ballots postmarked on or before Election Day is three days after the election by 5:00 pm, which usually falls on the Friday following the election (NC Gen. Stat. § 163-231(b)(2)). For the 2022 General Election, that deadline falls on Veterans Day, a state and federal holiday. In accordance with NC Gen. Stat. § 103-5 and Numbered Memo 2022- 09, the NC State Board of Elections extended the civilian deadline for the return of by mail ballots that are postmarked on or before Election Day from Friday, November 11th to Monday, November 14th. Military and overseas absentee ballot applications, issued under Article 21A, should not be accepted unless they are received by the county board of elections not later than the end of business on the business day before canvass. At each absentee board meeting, the board should either approve or disapprove the absentee applications assigned to that meeting date. All absentee ballot applications for the 2022 General Election must include the following: 1. The voter’s certification of eligibility to vote the enclosed ballot. 2. The certification of two witnesses, to include their residence address, or one public notary. 3. The certification, to include residence address, of any individual that assisted a voter in accordance with N.C. Gen. Stat. §163-226.3. Per Numbered Memo 2021-03, there are three different types of deficiencies associated with absentee ballot applications, each of which corresponds to a specific course of action: deficiencies that can be cured by sending the voter a cure certification, deficiencies that require the ballot to be spoiled, and deficiencies that require additional board review and action. Deficiencies that can be cured with a certification: •Missing voter signature •Voter signed in the wrong place Deficiencies that require the ballot to be spoiled: •A witness or assistant did not print name (If the witness or assistant’s signature is legible such that the name can be determined, the absentee ballot application is not deficient and the ballot should not be spoiled, absent any other deficiency) Item # 2 Item #2 •A witness or assistant did not print address (Failure to print witness zip code does not invalidate the application. Failure to include the city or state in the address does not invalidate the application if the county board of elections can determine the correct address) •Missing witness or assistant signature •Witness or assistant signed in place of voter signature (Otherwise, if all witness or assistant information is present on the application but not on the designated lines, then the application is not deficient, and the ballot should not be spoiled absent any other deficiency) •If container-return envelope arrives at the county board of elections office unsealed or appears to have been opened and re-sealed •The envelope indicates the voter is requesting a replacement ballot Deficiencies that require board action: •Deficiency is first noticed at a board meeting •No ballot in a container-return envelope •More than one ballot in a container-return envelope •Two voter’s ballots and container-return envelopes are switched Due to recent federal court order, voters, including those in assisted living facilities, who need assistance voting absentee by mail due to their disability may now receive assistance from any person they choose. Under the Americans with Disabilities Act, a disability is a physical or mental impairment that causes someone to be substantially limited in a major life activity. Under this federal order, a voter who is a patient or resident in a covered facility and needs assistance due to a disability may also receive assistance from an elected official, political party officeholder, or candidate. If voters in covered facilities do not need assistance due to a disability, then they may still request assistance from a near relative, legal guardian, or a MAT member. If an individual who belongs to one of these three categories is not available within seven calendar days of a voter’s request, then the voter may get assistance from anyone except: an owner, manager, director, or employee of the hospital, clinic, nursing home, or rest home where the voter is patient or resident; an elected official, candidate, or office holder in a political party; or a campaign manager or treasurer for a candidate or political party. If a voter is physically unable to sign or make their mark due to a disability, the person providing assistance with the ballot should write in the signature line, “Disabled-cannot sign” and complete the voter assistant certification on the application. In addition, the assistant may return a cure certification for a voter who needs assistance due to a disability. Since the board has delegated so much of the administrative detail of the election functions, duties, and work of the Board to the Elections Director, the staff are responsible for completing many of the administrative duties associated with by mail voting. These duties include, but are not limited to, the following: •After intake, inspecting the absentee ballot applications on each container-return envelope and making an initial determination as to whether the envelope was properly executed. If a deficiency exists, staff follow the process outlined in Numbered Memo 2021-03 to either send the voter a cure certification or spoil the ballot and reissue the ballot with a notice explaining the county board’s actions. •Performing an initial sort of ballot applications into categories upon initial review and presented those recommendations to the board at each meeting. Those categories may include designations for recommended approval, recommended disapproval, envelopes awaiting a cure certification, and those that staff have questions about that require deliberation by the board. •Verifying the list of ballot applications against the absentee pollbook. If the volume of by-mail ballots increases significantly, the county board may consider other ways to streamline this process to expedite the review of absentee ballot applications. In accordance with guidance issued by the NC State Board of Elections, the New Hanover County Board of Elections authorized staff at their October 11, 2022 meeting to use a bipartisan team to duplicate UOCAVA ballots that cannot be read by the DS850 high-speed central scanner prior to their assigned absentee meeting date provided that all requirements outlined in Numbered Memo 2020-25 are followed. Another way to expedite this process is for the county board to authorize the use two bipartisan teams of board members to review the applications during each meeting. The board by majority vote may also accept staff’s recommendations for approval without reviewing all absentee applications (Numbered Memo 2020-25). However, this delegation must include a process for the board to spot-check the envelopes to ensure accuracy and consistency. The review of certain types of applications cannot be delegated to staff members. Specifically, county board are required to individually review all applications that 1) have been recommended for disapproval by staff, (2) have a cure certification associated with that application, or (3) where staff need further guidance from the board as to whether the application was properly executed. At the meetings when ballots are optically scanned, a bipartisan duplication team is required to be present in the event a ballot needs to be duplicated to be successfully scanned by the central scanner. The scanning cannot begin until a majority of the board members and at least one board member from each party is physically in attendance. If it is not possible to scan all absentee ballots approved at a meeting, the board may recess the meeting to a later date, which could be the next absentee meeting. If this action is taken, county boards should send out a special meeting notice as soon as possible for the reconvened meeting. The 48-hour requirement for special meeting notices is not required for the reconvened meeting. At the end of each absentee meeting, all absentee applications and ballots should be reconciled with the number of ballot applications approved by the board equal in number to the number of ballots scanned by the tabulator. Document/s Included: NCSBOE Numbered Memos 2022-15, 2022-09, 2022-11, 2021-07, 2021-03, 2020-29 and 2020-25 , Absentee Poll Book and Reconciliation Log Sheet (Provided at meeting) Board Action Required: Discuss as necessary and action required 1 Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or(866) 522-4723 Fax:(919) 715-0135 Numbered Memo 2022-15 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Postmark Requirement for Mailed Civilian Absentee Ballots DATE: November 7, 2022 The purpose of this numbered memo is to identify the different ways that a “postmark” may appear on an absentee ballot container-return envelope, to help guide the process of determining whether a civilian absentee ballot that is received after Election Day may be approved.1 Postmark Requirement Under N.C.G.S. § 163-231(b)(2)b, civilian absentee ballots that arrive at the county board office after Election Day are timely, if [t]he ballots . . . are postmarked and that postmark is dated on or before the day of the statewide primary or general election or county bond election and are received by the county board of elections not later than three days after the election by 5:00 p.m.2 The postmark requirement for civilian ballots received after Election Day is in place to ensure that votes transmitted by mail were cast on or before Election Day. (There is no postmark requirement for military or overseas citizen ballots.3) The United States Postal Service (USPS) utilizes different postmarks to signify the location and date the USPS accepted custody of a mailpiece, and to indicate that the postage on the mailpiece has been used. (Accordingly, applying a postmark is sometimes referred to as “cancelling” the 1 N.C.G.S. § 163-231(b)(2)b. 2 If the third day after Election Day is a holiday—as it is this year—the receipt deadline moves to the next business day, which is Monday, November 14 this year. See N.C.G.S. § 103-5(a). 3 N.C.G.S. § 163-258.12(b). Military-overseas (or UOCAVA) ballots that are mailed must be received by 5:00 p.m. the day before county canvass. N.C.G.S. § 163-258.12(a). 2 postage on a mailpiece.4) However, USPS does not always affix a postmark to a ballot return envelope5 and sometimes postmarks are illegible. Nonetheless, under North Carolina law, a civilian absentee ballot that is received after Election Day and before the receipt deadline may be counted only if it contains a postmark and the county board can discern that the date on that postmark is Election Day or earlier. For illustrative purposes, Attachment A contains images showing the various types of postmarks that USPS may affix to postage on an envelope. This material was provided by the USPS counsel’s office. Please take note of the following: •All included postmark examples are valid. Every example, except for Item 12, is a machine-generated postmark, displaying in text the location and date of cancellation of postage. Item 12 shows a manually applied, or hand-stamped postmark. •Sometimes the postage on an envelope will include a date as well. That may also count as a valid postmark, but only in the examples of Items 4 and 7. In those examples, the postage is applied at a USPS retail counter and contains the date of receipt by USPS. So even if there is no separate machine-generated or hand-stamped postmark, the date appearing in one of these types of postage will still count as a valid postmark. On the other hand, the postage in Items 3 and 5 is not applied at a USPS retail counter but is instead applied by a business or other postal consumer, often using a private postage meter. Accordingly, the date in the postage in Items 3 and 5 cannot be used, by itself, as a postmark. You would need to have a traditional hand-stamped or machine-generated postmark, as well, for the ballot to count. Because the examples in Items 3 and 5 have both the postage and the machine-generated postmark, they are examples of acceptable postmarks. 4 See U.S. Postal Service, Handbook PO-408 – Area Mail Processing Guidelines, § 1-1.3 Postmarks, available at https://about.usps.com/handbooks/po408/ch1 003.htm. 5 See U.S. Postal Service, Office of Inspector General, Processing Readiness of Election and Political Mail During the 2020 General Elections Report Number 20-225-R20, 3 (“. . . we found that ballots are not always being postmarked as required and it is a challenge for the Postal Service to ensure full compli- ance. Some ballots did not receive a postmark due to: (1) envelopes sticking together when processed on a machine; (2) manual mail processing; or (3) personnel unaware that all return ballots, even those in pre- paid reply envelopes, need to receive a postmark.”). Item Postage Description Cancellation type Cancellation picture Application method 6 SSK Stamp Alternate Cancellation 8 PPI Alternate Cancellation 9 PERMIT Alternate Cancellation AFSM Flats Cancellation Mark Wavy bar 7 PVI (non-RSS) Alternate Cancellation (Note - the date on the PVI label is also a valid indication of USPS acceptance) 10 Alternate Postage / Picture permits Alternate Cancellation 11 12 Hand-Stamped Postmark Circular Date and Origin Manual Letter 4 RSS Alternate Cancellation (Note - the date on the RSS label is also a valid indication of USPS acceptance) 5 SSK Label Alternate Cancellation 2 Meter Marks without IBI Wavy bar 3 Meter Marks with IBI Alternate Cancellation Automated Letter MPE Automated Letter MPE Automated Letter MPE Automated Flats MPE Automated Letter MPE Automated Letter MPE Automated Letter MPE Automated Letter MPE Automated Letter MPE Automated Letter MPE For illustrative purposes only. Contains sample postage and postmarks. Wavy barStamps1 Automated Letter MPE ATTACHMENT A 1 Mailing Address: P.O. Box 27255, Ra-leigh, NC 27611 (919) 814-0700 or(866)522-4723 Fax:(919) 715-0135 Numbered Memo 2022-09 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Absentee Ballot Return Deadline DATE: August 17, 2022 This numbered memo provides guidance for when the civilian absentee-by-mail deadline falls on a holiday. This guidance applies to all future elections. State law provides that absentee ballots must be either: •Received by 5 p.m. on Election Day; or •Postmarked by Election Day and received no later than 5 p.m. three days after the election.1 In 2022, the deadline for receipt of postmarked absentee ballots falls on Friday, November 11, Veterans Day, a state and federal holiday.2 When a deadline for doing an act to be performed in a public office falls on a weekend or holiday, the deadline moves to the next day the public office is open.3 Accordingly, when the deadline for the return of postmarked absentee ballots falls on a holiday, the deadline moves to the next business day, pursuant to G.S. § 103-5(a). Therefore, in 2022, the deadline for receipt of absentee ballots that are postmarked by Election Day is Monday, November 14. 1 G.S. § 163-231(b)(2)b. 2 5 U.S.C. § 6103; G.S. § 103-4(a)(12). 3 G.S. § 103-5(a) states: “Except as otherwise provided by law, when the day or the last day for doing any act required or permitted by law to be performed in a public office or courthouse falls on a Saturday, Sun- day, or legal holiday when the public office or courthouse is closed for transactions, the act may be per- formed on the next day that the public office or courthouse is open for transactions.” 1 Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax:(919) 715-0135 Numbered Memo 2022-11 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Court Order Regarding Assistance for Absentee Voters with Disabilities DATE: August 29, 2022 On July 11, 2022, a federal court issued an order invalidating state laws preventing certain individuals from helping disabled voters request, complete, and submit absentee ballots.1 The court determined that these laws, as applied to disabled voters, violate federal law. Specifically, Section 208 of the Voting Rights Act permits any voter who is blind, disabled, or unable to read or write to request “assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.”2 This numbered memo provides guidance for county boards to comply with the court order. It supersedes Numbered Memo 2020-15 and any other prior memo to the extent they provide guidance regarding who may assist an absentee voter who needs assistance due to a disability. Assistance for Absentee Voters with Disabilities Voters who need assistance voting absentee by mail due to their disability may now receive assistance from any person they choose. This could be a friend, relative, or any other person the voter chooses to assist them. A candidate may not witness the ballot of a voter unless the candidate is the voter’s near relative.3 Voters in Covered Facilities A voter who needs assistance due to a disability and is a patient or resident in a covered facility may receive assistance from any person they choose. They may receive assistance from the staff 1 Disability Rights NC v. State Board of Elections, 5:21-CV-361-BO, Order on Motion for Summary Judgment (E.D.N.C. July 11, 2022). The specific laws that were invalidated with respect to assisting disabled voters are N.C.G.S. §§ 163-226.3, -230.1, -230.2, -230.3, and -231(b)(1). 2 52 U.S.C. § 10508. 3 However, a voter living in covered care facilities may receive assistance from a candidate if the voter needs assistance due to the voter’s disability. 2 of the hospital, clinic, nursing home, or rest home where they are a patient or resident. There is no requirement that the facility staff complete a log when they assist a voter, although the facility may choose to do so. Facility staff are not required to assist a voter if they do not wish to do so or are instructed not to do so by the facility. Facility staff may continue to rely on multipartisan assistance team (MAT) members to assist their residents, if that is the facility’s preference. Under the court’s order, a voter in a covered facility who needs assistance due to a disability may also receive assistance from an elected official, political party officeholder, or candidate. They may still request and use a MAT, but they are not required to do so. A voter who is a patient or resident in a covered facility but who does not need assistance due to a disability may request assistance from a near relative, legal guardian, or a MAT. Recall, the court’s order changes the rules only for voters who need assistance due to a disability. If a near relative, legal guardian, or MAT is not available within seven calendar days of such a voter’s request, the voter may get assistance from anyone EXCEPT: • An owner, manager, director, or employee of the hospital, clinic, nursing home, or rest home where the voter is a patient or a resident; • An elected official, candidate, or officeholder in a political party; or • A campaign manager or treasurer for a candidate or political party.4 Assistance with Absentee Voting Absentee Requests Upon request of a voter who needs assistance due to a disability, any person may assist the voter by: • Completing the absentee request form, according to the voter’s instruction; • Making the absentee request on the voter’s behalf, according to the voter’s instruction; and • Returning the request form, according to the voter’s instruction. The assistant may return the request form by mail or in person, or through the State Board’s online portal. 4 N.C.G.S. § 163-226.3(a)(4). 3 The assistant must complete Section 9 of the request form, including providing their name and address. The form is invalid if the assistant does not provide information such that the assistant’s name and address can be determined.5 If the assistant is making the request for the voter (i.e., not just helping to fill out the form, but making the request in lieu of the voter), they must also complete and sign Section 8. As long as the assistant’s address is listed in either Section 8 or Section 9, it is not required to be listed twice since the assistant’s address can be determined if it is listed once. Absentee Container-Return Envelopes Upon request of a voter who needs assistance due to a disability, any person, including a MAT member, may assist the voter by: • Completing the absentee container-return envelope, according to the voter’s instruction; • Marking the ballot, according to the voter’s instruction; • Signing the envelope if, due a disability, the voter is unable to sign or make their mark; and • Returning the ballot, according to the voter’s instruction. The assistant may return the ballot by mail or in person to the county board of elections office or a one-stop site in the county. The assistant must complete the Voter Assistant Certification section of the envelope. If a voter is physically unable to sign or make their mark due to disability, the person assisting with the ballot should write in the signature line, “Disabled - cannot sign” and must complete the Voter Assistant Certification located on the back of the ballot return envelope. The assistant may return a cure certification for a voter who needs assistance due to a disability. See Numbered Memo 2021-03 for information about the cure process for deficient absentee container-return envelopes. County boards shall keep a log for cure certifications that are hand-delivered to the county board office. Absence for Sickness or Physical Disability If a voter expects to be unable to go to the voting place to vote in person on Election Day because of that voter’s sickness or other physical disability, any of the following people may 5 N.C.G.S. § 163-230.2(e1) states: “If a voter is in need of assistance completing the written request form due to blindness, disability, or inability to read or write and there is not a near relative or legal guardian available to assist that voter, the voter may request some other person to give assistance, notwithstanding any other provision of this section. If another person gives assistance in completing the written request form, that person’s name and address shall be disclosed on the written request form in addition to the information listed in subsection (a) of this section.” (Emphasis added.) 4 make the request for absentee ballots in person to the board of elections of the county in which the voter is registered after 5:00 p.m. on the Tuesday before the election but not later than 5:00 p.m. on the day before the election: • The voter; • The voter’s near relative or legal guardian; or • Any other person, if the voter needs assistance due to a disability. Upon receipt of a completed request form, the county board shall personally deliver the application and ballots to the voter, near relative, legal guardian, or assistant.6 Assistance with In-Person Voting The requirements for who may assist a voter voting in person have not changed. A disabled or illiterate voter who is voting in person may receive assistance from a person of the voter’s choice, other than the voter’s employer or agent of that employer or an officer or agent of the voter’s union.7 There is no limit on how many voters an assistant may assist, if properly requested. Answers to Frequently Asked Questions Q1: May a voter who needs assistance due to a disability receive assistance from a candidate? A: It depends. A voter who needs assistance due to a disability may receive assistance from a candidate if the voter is a patient or resident of covered facility. However, the court order did not enjoin G.S. § 163-237(c), which prevents a candidate from serving as a witness otherwise. Therefore, a voter who is not a patient or resident of a covered facility is prohibited from having a candidate serve as a witness unless the candidate is their near relative. Q2: What is the definition of a disability? A: Under the Americans with Disabilities Act, a disability is a physical or mental impairment that causes someone to be substantially limited in a major life activity.8 This means someone who has substantial limitations on the ability to perform everyday 6 N.C.G.S. § 163-230.1(b). 7 N.C.G.S. § 163-166.8(a)(2). 8 42 U.S.C. § 12102(1)(A). 5 things—such as seeing, hearing, walking, standing, speaking, reading, concentrating, thinking, and writing—as compared to most people in the general population.9 Most people living in nursing homes and other congregate care settings need help with at least one aspect of daily living and will generally be considered to have a disability. Federal law states that public entities are not to engage in demanding tests to determine an individual’s level of disability.10 For the purposes of seeking assistance with absentee voting, however, the disability should substantially impair an activity that pertains to the absentee voting process.11 All of the examples of everyday activities listed above could pertain to some aspect of the absentee voting process. Q3: Is advanced age a reason for assistance (for example, curbside is open to those who due to age or disability are unable to enter the enclosure)? A: No, age alone is not a reason the voter may receive assistance under the court order. The voter must need assistance due to a disability, but a disability may be age-related. See the answer to Question 2 for the definition of a disability. Q4: How do we know if someone has a disability? A: See the answer to Question 2 regarding the definition of a disability. The voter’s disability is confirmed through the attestations on the request form and the absentee envelope. These contain language requiring the assistant to attest that the voter asked for help due to the voter’s disability. It is not for the county board to inquire into the specifics of a voter’s attested-to disability that renders the voter in need of assistance. If the assistance portion of an otherwise valid request form or envelope is properly completed, the county board shall approve it. If the county board has reason to believe that non-disabled voters are receiving assistance to which they are not entitled, or that disabled voters’ wishes are not being respected, they shall forward such evidence the State Board’s Investigations Division. 9 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 35.108(c)(1), (d)(1)(v). 10 28 C.F.R. § 35.101; see 28 C.F.R. §§ 35.108(a)(2)(i), (c)(2)(i)-(ii), (d)(1)(i)-(viii), . 11 The Voting Rights Act permits a voter to get assistance from a person of their choice if that voter “requires assistance to vote by reason of blindness, disability, or inability to read or write[.]” 52 U.S.C. § 10508 (emphasis added). 6 Q5: What if a disabled voter in a covered facility wishes to get assistance from and use as witnesses two staff members in the facility, but the voter’s near relative is concerned about undue influence and has contacted the county board to complain? A: A voter who needs assistance due to a disability has the right to select an assistant of their choice under the court order (and federal law). If a family member is concerned that someone has improperly influenced a voter, the county board of elections should refer them to the State Board’s Investigations Division. It is a crime to interfere with a voter when marking their ballot, or to defraud a blind or illiterate voter from marking the ballot selections of their choosing.12 Q6: Is the assistant required to respect the secrecy of the voter’s ballot? Yes. Any person who assists a voter must keep the voter’s ballot choices confidential. It is a crime for any person who has access to another person’s ballot to reveal how the person voted.13 Q7: Are there any changes to the requirement that an absentee voter have two witnesses or a notary? A: No. An absentee ballot must still be witnessed by two people or one notary public. The witnesses must be at least 18 years old. Q8: What is the definition of a covered facility? A: A “covered facility” is any facility that provides residential or in-patient healthcare in the State that is licensed or operated pursuant to Chapter 122C, Chapter 131D, or Chapter 131E of the General Statutes, including, for example, a hospital, clinic, nursing home, or adult care home; or by the federal government or an Indian tribe.14 12 N.C.G.S. §§ 163-273(a)(4) and 163-274(a)(13). 13 N.C.G.S. § 163-274(b). 14 08 NCAC 16 .0101(b). Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2021-07 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Deficiencies in Notary Portion of Absentee Application and Certificate DATE: August 31, 2021 This numbered memo explains how county boards of elections should treat technical deficiencies in the execution of the notary portion of an absentee container return envelope (officially called the absentee ballot application and certificate). It replaces Numbered Memo 2020-07. The guidance balances the goal of uniformly applying the law while seeking to not punish the voter for a notary’s inadvertent mistake or error. G.S. § 163-231(a) requires a voter to mark the absentee by-mail ballot in the presence of two witnesses or one notary public, who must sign the container return envelope as witness(es). If witnessed by a notary, the statute requires the notary public to affix their valid notarial seal to the envelope and include the phrase “Notary Public” below his or her signature. State Board of Elections staff consulted with the North Carolina Department of the Secretary of State’s Electronic Notarization and Notary Enforcement Division regarding the validity of an incomplete notarization on the container return envelope. While the Secretary of State’s Office cannot adjudicate an absentee ballot, they provided useful information on how the notary statutes work in conjunction with our election statutes, including that there is a presumption of regularity in the absence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of the notary statutes by the notary.1 The Secretary of State’s Office has requested that notarial errors on the absentee ballot container-return envelope be reported to them. Certain technical errors in executing the notary’s portion of the container return envelope are not considered deficiencies. Other errors are considered deficiencies that require the ballot to be spoiled and reissued in accordance with Section 2.2 of Numbered Memo 2021-03. 1 G.S. 10B-99(a) (relevant portion): “In the absence of evidence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of this Article by the notary, the courts shall grant a presumption of regularity to notarial acts so that those acts may be upheld, provided there has been substantial compliance with the law.” 2 1. Technical Errors That Are Not Considered Deficiencies The following technical errors do not affect the sufficiency, validity, or enforceability of the notarial certificate itself or the underlying document and are not considered deficiencies: • Notary leaves off the name of the voter or misspells the voter’s name; • Notary does not write the expiration date of their commission; • Notary does not include the name of the county or State; • The notary seal is hard to read; • The notary does not include the date the notary witnessed the marking of the ballot; or • A combination of the above.2 2. Technical Errors That Are Considered Deficiencies The following errors in the notarial certificate are considered deficiencies that cannot be cured by certification, and require that the ballot be spoiled and reissued in accordance with Numbered Memo 2021-03: • The notary’s signature is missing. Pursuant to G.S. § 163-231(a)(5), the notary’s signature is required. • The notarial seal is missing altogether or contains missing information. G.S. § 163-231(a) requires the notary to affix a valid notarial seal to the envelope. 2 G.S. § 10B-68 (relevant portion): (a) Technical defects, errors, or omissions in a notarial certificate shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related instrument or document. […] (c) As used in this section, a technical defect includes those cured under G.S. 10B-37(f) and G.S. 10B- 67. Other technical defects include, but are not limited to, the absence of the legible appearance of the notary's name exactly as shown on the notary's commission as required in G.S. 10B-20(b), the affixation of the notary's seal near the signature of the principal or subscribing witness rather than near the notary's signature, minor typographical mistakes in the spelling of the principal's name, the failure to acknowledge the principal's name exactly as signed by including or omitting initials, or the failure to specify the principal's title or office, if any.” G.S. 10B-67: “An erroneous statement of the date that the notary's commission expires shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related record if the notary is, in fact, lawfully commissioned at the time of the notarial act. This section applies to notarial acts whenever performed.” G.S. 10B-37(f): “The failure of a notarial seal to comply with the requirements of this section shall not affect the sufficiency, validity, or enforceability of the notarial certificate, but shall constitute a violation of the notary's duties.” 3 3. Fraud Indicators If there are indications of fraud on the absentee envelope, whether they relate to the notary section or other sections of the envelope, this information should be sent to the State Board’s Investigations Division. Examples of fraud indicators include: • A notary or witness completed multiple applications containing technical errors; • The handwriting for the voter’s signature and witness’s signature appears identical; • The envelope appears to have been tampered with; and • There are stray or suspicious markings on the envelope. Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or(866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2021-03 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Absentee Container-Return Envelope Deficiencies DATE: June 11, 2021 This numbered memo replaces Numbered Memo 2020-19, which was first issued on August 21, 2020 and subsequently revised and reissued on September 22, 2020, and October 17, 2020. The State Board is required to provide a cure process for voters whose absentee container-return enve- lopes contain certain deficiencies. There were two separate court orders requiring a cure process. The Consent Judgment in NC Alliance v. State Board of Elections, No. 20-CVS-8881 (Wake Co. Sup. Ct. Oct. 2, 2020), which formed part of the basis for the revised 2020 memo, was limited to the 2020 general election. The preliminary injunction in Democracy NC v. State Board of Elec- tions, 476 F.Supp.3d 158 (M.D.N.C. Aug. 4, 2020), was not limited to a particular election. This numbered memo revises the cure process that was first established for the 2020 general election and applies to all elections going forward. County boards of elections must ensure that the votes of all eligible voters are counted using the same standards, regardless of the county in which the voter resides. This numbered memo directs the procedure county boards must use to address deficiencies in ab- sentee ballots. The purpose of this numbered memo is to ensure that a voter is provided every opportunity to correct certain deficiencies, while at the same time recognizing that processes must be manageable for county boards of elections to timely complete required tasks.1 1.No Signature Verification Verification of the voter’s identity is completed through the witness requirement. The voter’s signature on the envelope shall not be compared with the voter’s signature in their registration 1 This numbered memo is issued pursuant to the State Board of Elections’ general supervisory authority over elections as set forth in G.S. § 163-22(a) and the authority of the Executive Direc- tor in G.S. § 163-26. 2 record because this is not required by North Carolina law.2 County boards shall accept the voter’s signature on the container-return envelope if it appears to be made by the voter, meaning the sig- nature on the envelope appears to be the name of the voter and not some other person. Absent clear evidence to the contrary, the county board shall presume that the voter’s signature is that of the voter, even if the signature is illegible. A voter may sign their signature or make their mark. 2.Types of Deficiencies Trained county board staff shall review each executed container-return envelope the office re- ceives to determine if there are any deficiencies. County board staff shall, to the extent possible, regularly review container-return envelopes on each business day, to ensure that voters have every opportunity to timely correct deficiencies. Review of the container-return envelope for deficien- cies occurs after intake. The initial review is conducted by staff to expedite processing of the envelopes. Deficiencies fall into two main categories: those that can be cured with a certification and those that cannot be cured. If a deficiency cannot be cured, the ballot must be spoiled and a new ballot must be issued, as long as the new ballot is issued before Election Day. See Section 3 of this memo, Voter Notification. 2.1. Deficiencies Curable with Cure Certification (Civilian and UOCAVA) The following deficiencies can be cured by sending the voter a cure certification: •Voter did not sign the Voter Certification. •Voter signed in the wrong place. The cure certification process applies to civilian and UOCAVA voters. 2.2. Deficiencies that Require the Ballot to Be Spoiled (Civilian) The following deficiencies cannot be cured by certification, because the missing information comes from someone other than the voter: •A witness or assistant did not print name.3 However, if the witness forgot to print their name but the witness’s or assistant’s signature is legible such that the name can be deter- mined, the container-return envelope is not deficient and the ballot shall not be spoiled, absent any other deficiency. 2 See also Numbered Memo 2020-15, which explains that signature comparison is not permissi- ble for absentee request forms. 3 If the printed name is readable and on the correct line, even if it is written in cursive script, for example, it does not invalidate the container-return envelope. 3 •A witness or assistant did not print address.4 •A witness or assistant did not sign. •A witness or assistant signed on the wrong line. Where the witness or assistant signed in place of the voter’s signature, that deficiency cannot be cured and requires the ballot to be spoiled. Otherwise, if all required information from the witness or assistant is present but not on the designated line for each (for example, the witness or assistant printed their name on the address line, printed their address on the name line, and signed), the container-return envelope is not deficient and the ballot shall not be spoiled, absent any other deficiency. •Upon arrival at the county board office, the envelope is unsealed or appears to have been opened and re-sealed. •The envelope indicates the voter is requesting a replacement ballot. If a county board receives a container-return envelope with one of these deficiencies, county board staff shall spoil the ballot and reissue a ballot along with a notice explaining the county board office’s action, in accordance with this numbered memo. 2.3. Deficiencies that require board action Some deficiencies cannot be resolved by staff and require action by the county board. These in- clude situations where the deficiency is first noticed at a board meeting or if it becomes apparent during a board meeting that no ballot is in the container-return envelope, more than one ballot is in the container-return envelope, or two voters’ ballots and container-return envelopes were switched. If the county board disapproves a container-return envelope by majority vote in a board meeting, it shall proceed according to the notification process outlined in Section 3. 4 Failure to list a witness’s ZIP code does not invalidate the container-return envelope. G.S. § 163-231(a)(5). A witness’s or assistant’s address does not have to be a residential address; it may be a post office box or other mailing address. Additionally, if the address is missing a city or state, but the county board of elections can determine the correct address, the failure to list that information does not invalidate the container-return envelope. For example, if a witness lists “Raleigh 27603,” you can determine the state is NC, or if a witness lists “333 North Main Street, 27701,” you can determine that the city/state is Durham, NC. If both the city and ZIP code are missing, staff will need to determine whether the correct address can be identified. If the correct address cannot be identified, the envelope shall be considered deficient and the ballot spoiled in accordance with Section 3. See Numbered Memo 2020-29 for additional information regarding address issues. 4 3. Voter Notification 3.1. Issuance of a Cure Certification or New Ballot If there are any deficiencies with the absentee envelope, the county board of elections shall contact the voter in writing within one business day of identifying the deficiency to inform the voter there is an issue with their absentee ballot, enclosing a cure certification or new ballot, as directed by Section 2. The written notice shall also include information on how to vote in-person during the early voting period and on Election Day. The written notice shall be sent to the address to which the voter requested their ballot be sent. The outside of the envelope containing the new ballot or cure certification shall indicate that it contains official election mail, unless it is not possible due to the use of a specialized USPS or commercial carrier service envelope. If the deficiency can be cured and the voter has an email address on file, the county board shall also send the cure certification to the voter by email. If the county board sends a cure certification by email and by mail, the county board should encourage the voter to only return one of the certi- fications. If the voter did not provide an email address but did provide a phone number, the county board shall contact the voter by phone to inform the voter that the county board has mailed the voter a cure certification. If the deficiency cannot be cured, and the voter has an email address on file, the county board shall notify the voter by email that a new ballot has been issued by mail to the voter. If the voter did not provide an email address but did provide a phone number, the county board shall contact the voter by phone to inform the voter that the county board has issued a new ballot by mail. A county board shall not reissue a ballot on or after Election Day. If there is a curable deficiency, the county board shall contact voters up until the day before county canvass. 3.2. Receipt of a Cure Certification The cure certification must be received by the county board of elections by 5 p.m. the day before county canvass. The cure certification may be submitted to the county board office by fax, email, in person, or by mail or commercial carrier. If a voter appears in person at the county board office, they may also be given, and can complete, a new cure certification. There is not a postmark re- quirement for cure certifications returned by mail – the cure certification must be received by the deadline, not postmarked by the deadline. The cure certification may only be returned by the voter, the voter’s near relative or legal guardian, or a multipartisan assistance team (MAT). A cure certification returned by any other person is invalid. Voters who require assistance in mailing their ballot pursuant to 08 NCAC 18 .0101(a) may also direct that the cure certification be taken directly to the closest U.S. mail depository or mailbox by a person selected by the voter in accordance with the Rule. It is not permissible for a 5 cure certification to be submitted through a portal or form created or maintained by a third party. A cure certification may not be submitted simultaneously with the ballot. Any person who is permitted to assist a voter with their ballot may assist a voter in filling out the cure certification, but the cure certification must be signed by the voter. A wet ink signature is not required, but the signature used must be unique to the individual. A typed signature is not acceptable, even if it is cursive or italics such as is commonly seen with a program such as DocuSign. 3.3 County Board Review of a Cure Certification At each absentee board meeting, the county board of elections may consider deficient ballot return envelopes for which the cure certification has been returned. The county board shall consider together the executed absentee ballot envelope and the cure certification. If the cure certification was timely received and contains the voter’s name and signature and was returned by an authorized person, the county board of elections shall approve the absentee ballot. 4.Late Absentee Ballots Voters whose ballots are not counted due to being late shall be mailed a notice stating the reason their ballot was not counted. Late absentee ballots are not curable. If a ballot is received after county canvass, the county board is not required to notify the voter. Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-29 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Witness or Assistant Address Issues on the Absentee Container-Return Envelope DATE: October 4, 2020 This memo is issued to provide uniform guidance and further clarification on how to determine if the correct address can be identified if the witness’s or assistant’s address on an absentee container- return envelope is incomplete. If No Address If a witness or assistant does not print their address, the envelope is deficient. Missing ZIP Code or City As previously explained in Footnote 3 of Numbered Memo 2020-19, failure to list a witness’s ZIP code does not require a cure. G.S. § 163-231(a)(5). A witness or assistant’s address does not have to be a residential address; it may be a post office box or other mailing address. Additionally, if the address is missing a city or state, but the county board of elections can determine the correct address, the failure to list that information also does not invalidate the container-return envelope. For example, if a witness lists “Raleigh 27603” you can determine the state is NC, or if a witness lists “333 North Main Street, 27701” you can determine that the city/state is Durham, NC. If City and ZIP Code Missing If both the city and ZIP code are missing, staff will need to determine whether the correct address can be identified. If the correct address cannot be identified, the envelope is deficient. If one of the following criteria are met, you can determine the address and the envelope is not deficient: • The witness or assistant’s address is the same as the voter’s address – either because the witness or assistant wrote “same as above” or something similar on the address line or because the partial address provided matches the address of the voter – or it is on the same street as the voter’s address; • The witness’s or assistant’s name and partial address match that of a registered voter in your county in SEIMS; or 2 • The street address is a valid address in your county. You may confirm this using a county GIS website1 or office, or a similar tool. Do not use an online directions tool such as Google Maps, which does not identify whether an address is valid. If there is only a street address and none of the above criteria are met, the county board cannot determine the address and the envelope is deficient. If a P.O. box is listed but the address provided does not include a city or ZIP code, it is not possible to determine the address and the envelope is deficient. 1 https://www.lib.ncsu.edu/gis/counties.html Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-25 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Absentee Board Meetings DATE: September 22, 2020 (updated September 23, 2020) Legal Requirements for Absentee Meetings General Requirements Beginning every Tuesday on the fifth Tuesday before Election Day, county boards of elections must hold a public meeting at 5:00 p.m. to review and act upon absentee ballots.1 For the general election, this date is September 29, 2020. The county board of elections may change the time of these meetings (to an earlier or later time) and may provide for additional meetings. However, absentee meetings may not be held prior to Tuesday, September 29, 2020. Any meetings that are held at a different time on Tuesdays and any additional meetings must be noticed in a county newspaper at least 30 days prior to the election, October 4, 2020. You must also send notice of absentee meetings to your regular notice list, including to the county political parties. At each absentee board meeting, the board must act upon all absentee container-return envelopes received prior to that meeting and after the previous absentee meeting.2 An absentee meeting must be held if there are any absentee ballots (absentee by mail or one-stop early voting ballots) for the board to review. Absentee meetings should only be cancelled if the board has not received any absentee container-return envelopes since the last absentee meeting.3 Because of this statutory requirement and the anticipated significant increase in absentee ballots returned, it is 1 G.S. §163-230.1(f), as amended by 2020-17. 2 See G.S. § 163-230.1(e): “At its next official meeting after return of the completed container- return envelope with the voter’s ballots, the county board of elections shall determine whether the container-return envelope has been properly executed (emphasis added).” 3 See G.S. § 163-230.1(f), entitled “Required Meeting of County Board of Elections”: “During the period commencing on the fifth Tuesday before an election […] the county board of elections shall hold…(emphasis added).” 2 strongly recommended that your board schedule additional absentee board meetings and/or begin meetings earlier than 5:00 p.m. A county board may recess an absentee board meeting to a date and time certain if it is not possible to complete review of absentee ballots during the specified meeting period. You should send out the notice as soon as possible but it is not required to be sent 48 hours in advance of the reconvened meeting if that is not possible based on when the meeting was recessed from. To determine how many additional absentee meetings you need to schedule, consider how many absentee ballot requests your county has received to date, how many total requests your county received for the November 2016 election, and estimate how many requests you anticipate based on the county’s current rate of requests. For example, if your county received 6,000 requests in November 2016 and you anticipate a 50% increase for this election, that would be 9,000 requests total. If you have six absentee board meetings and everyone who requested a ballot returned one, your board would need to consider approximately 1,500 ballots per meeting. If your board sched- uled ten absentee meetings, your board would consider around 900 ballots per meeting. County Board Member Attendance Absentee board meetings require a quorum of members present. A quorum is three members.4 If at all possible, at least one member from each political party should be represented at each absentee meeting when the board is approving absentee applications. If you only have three mem- bers present, you may have one Democrat and two Republican board members, or two Democrat and one Republican board members present. Because board members must be able to view absentee envelopes in order to approve or disapprove the ballot, a quorum of board members must be physically present during each absentee board meeting. Once a quorum is physically present, remaining board members may attend the meetings via live video feed, but they must have a secure way to view the meeting and to participate. They must be able to view all materials that board members are reviewing to make decisions on the absentee envelopes. A majority of board members present at a meeting must vote for an action for it to pass. COVID-19 Precautions Board members, county board staff, and any public participants attending meetings in person must wear face masks during the meeting unless an exception applies. All participants must socially distance and wash or sanitize their hands regularly, but the board and staff should also be cautious 4 G.S. § 163-31(d): “A majority of the members shall constitute a quorum for the transaction of board business.” 3 about the excessive use of hand sanitizer when handling ballots. County boards may consider purchasing additional protective equipment such as gloves and transparent tabletop shields to form cubicles around each board member during absentee meetings. CARES Act funds may be used for these purchases. See Numbered Memo 2020-14 for more information. Public Attendance Absentee board meetings are public meetings and are subject to North Carolina’s open meetings laws. The recommendation in Numbered Memo 2020-11 to conduct board meetings telephoni- cally due to the COVID-19 pandemic does not apply to absentee meetings where the board is reviewing absentee return envelopes—a primarily visual process. For absentee meetings, it is recommended that the county board locate a meeting room large enough to accommodate members of the public with appropriate social distancing. If it is not possible to procure a sufficiently large space for those who may want to attend in person, the county board of elections must broadcast the absentee board meetings via video feed using a service such as WebEx or Microsoft Teams. If the county board does not have access to appropriate audiovisual equipment or software, the board may use CARES Act funds to procure the necessary equipment or teleconferencing services. The public must be able to see and hear the proceedings without compromising the secrecy of any voter’s ballot. Staff must ensure that the public cannot view any voted ballots or other confidential information, such as voter signature, on the feed. A staff member should be assigned to monitor the video feed throughout the absentee board meeting to ensure that confidential information is not viewable by the public. County board members and staff must be particularly mindful of ballot secrecy when duplicating ballots and inserting ballots into the tabulator. The public is not permitted to disrupt the process of adjudicating the validity of absentee applica- tions by the board and is not part of the deliberation process during absentee board meetings. The decision of the county board of elections as to the validity of an envelope is final and is not subject to public comment, objection, or review.5 Confidentiality of Absentee Register G.S. § 163-228 requires county boards of elections to keep a register of absentee ballot requests that includes information about the request, the address to which the ballot should be sent, the date of the request, the voter’s precinct, and other information. In 2019, the General Assembly amended subsection (c) of that section to make the absentee request register confidential and not 5 G.S. § 163-230.1(f): “The decision of the board on the validity of an application for absentee ballots shall be final subject only to such review as may be necessary in the event of an election contest.” 4 a public record until Election Day.6 County boards of elections are not permitted to release copies of absentee request forms or identifying information that could be used to determine that a voter requested an absentee ballot. Absentee request data is no longer confidential when the ballot is returned to the county board of elections office. Therefore, names of absentee voters may be read aloud during the absentee board meetings, as the ballot has been returned to the county board office at that point. Reading from lists of voters who have requested absentee ballots or otherwise releasing the names of voters with outstanding requests is prohibited until the ballot is returned or until Election Day. It is a Class G felony for a person to “steal[], release[], or possess[] the official register of absentee requests for mail-in absentee ballots as provided in G.S. 163-228 prior to the opening of the voting place.”7 Delegation of Preparatory Steps to Staff General Authority The county board of elections has the authority to delegate to its director “so much of the admin- istrative detail of the election functions, duties, and work of the board, its officers and members, as is now, or may hereafter be vested in the board or its members as the county board of elections may see fit.”8 However, the board may not delegate to a director or other staff any of its quasi- judicial or policymaking duties and authority. Given the significant increase in absentee ballots during this election, the county board should determine which preparatory tasks staff can complete prior to absentee board meetings. A dele- gation of administrative duties by the board to the director or staff should occur by majority vote. The delegation may be by resolution or the approved motion should be documented in the minutes. It should delegate specific preparatory steps that staff can perform prior to absentee board meetings, and the delegation must provide for oversight by the board. Preparatory steps include: • Inspecting container-return envelopes for deficiencies and contacting voters as required by Numbered Memo 2020-19 (revised September 22, 2020). Please note that voters must be contacted within one business day of when staff identify the deficiency. It is not permissible to wait for the absentee board meeting to contact the voter about a deficiency. • Sorting container return envelopes into categories for the board to review and approve. • Verifying the list of ballot envelopes against the absentee pollbook. 6 See Section 1.1.(a) of Session Law 2019-239. 7 G.S. § 163-237(d6), as amended by Session Law 2019-239. 8 G.S. § 163-35(d). 5 • Performing ballot duplication. Staff Review of Envelopes At each absentee board meeting, the county board of elections reviews each absentee container- return envelope to determine whether it has been properly executed, and if so, to approve the ap- plication and ballot.9 Given the volume of absentee ballots the county board is required to review and act upon at each meeting, the board should consider ways to streamline the process. To that end, a county board may take preparatory steps to expedite review of ballot envelopes by the board. After intake, staff must inspect the absentee ballot envelope and make an initial deter- mination as to whether the envelope was properly executed. If a deficiency exists, they must follow the cure process in Numbered Memo 2020-19. Staff should also perform an initial sort of ballot envelopes into categories upon initial review and to present those recommendations to the board at each absentee board meeting. Those categories may include designations for recom- mended approval, recommended disapproval, envelopes awaiting a cure certification, and those that staff have questions about that require deliberation by the board. The delegation may also require staff to prepare a report to the board indicating the number of ballot envelopes in each category for reconciliation purposes. The board may by majority vote accept staff’s recommendation for absentee ballot envelopes that staff have reviewed and recommended for approval. The delegation must include a process for the board to spot-check the envelopes to ensure accuracy and consistency. However, the board must individually review all ballot envelopes that: (1) have been recommended for disapproval by staff, (2) have a cure certification associated with that ballot envelope, or (3) where staff need further guidance from the board as to whether the envelope was properly executed. After absentee envelopes are approved by the board, the task of stamping every envelope with “Approved” and stamping or otherwise affixing the chair’s signature or initials to the ballot enve- lopes may be delegated to staff. Alternatively, the board’s delegation may authorize the board to sign a cover sheet containing a list of envelopes that were acted upon during the meeting and indicating whether those envelopes were approved or disapproved in lieu of signing the individual envelopes. The delegation may also apply to review and approval of one-stop absentee applica- tions. It is also permissible for the board to determine that bipartisan teams of board members to pair off to review absentee ballot envelopes during each meeting if the board votes to allow this. Whether the county board delegates the initial review of absentee envelopes to staff or chooses to have a bipartisan team of board members review envelopes during the meeting, all board members 9 G.S. § 163-230.1(e) and (f). 6 present at the meeting must approve or disapprove the ballots. A decision as to whether an enve- lope is properly executed must be decided by a vote of the board as a whole and not by individual members.10 Scanning Absentee Ballots at Absentee Board Meetings It is important to understand the difference between scanning and tabulating. “Scanning” is a preparatory step that occurs when the approved absentee ballots are opened, removed from the envelope, and inserted into the tabulator. The tabulator reads the ballots but does not print the totals at that time, and no election returns are released. “Tabulating” or “counting” occurs on Election Day and is the result of the scanning that has taken place. A county board of elections may by majority vote decide to scan absentee ballots during each absentee meeting.11 Due to the significant increase in absentee ballots this election, it is strongly recommended that county boards authorize the scanning of approved ballots during absentee board meetings instead of waiting until Election Day. The scanning cannot begin until a majority of the board members and at least one board member of each political party is in attendance. If a board member of each political party is not available, the chair or other member of the executive committee of the county political party of the absent member must be present. The political party representative shall act as an official witness to the scanning and shall sign the absentee ballot abstract as an “observer.”12 Staff may enter the approved ballots into the tabulator, but each board member present is respon- sible for and must observe and supervise the opening of the envelopes and scanning of the ballots.13 It is not permissible for approved ballot envelopes to be opened, for ballots to be removed from the envelope, or for ballots to be inserted into the tabulator outside of a board meeting. These tasks cannot be delegated to staff to complete outside of a board meeting. If the board chooses to scan approved ballots during absentee meetings, it should consider ways to make the process as efficient and streamlined as possible. For example, the board could approve staff-recommended ballots first, then direct the staff to open those envelopes and enter the ballots 10 “The county board of elections shall constitute the proper official body to pass upon the validity of all applications for absentee ballots received in the county; this function shall not be performed by the chairman or any other member of the board individually.” G.S. § 163-230.1(f). 11 G.S. § 163-234(3). 12 G.S. § 163-234(9). 13 G.S. § 163-234(5). 7 into the tabulator while the board reviews the envelopes that require further consideration and those that staff have recommended be disapproved. Scanning of ballots must be performed during a board meeting, and ballots must be scanned at the same meeting during which they were approved.14 The number of approved absentee ballots must be reconciled with the number of ballots inserted into the tabulator. Reconciliation should be completed at each board meeting. If it is not possible to scan all approved ballots at that meeting, the board may recess the scanning to a time and date certain, which could be the next absentee board meeting. You should send out the notice as soon as possible but it is not required to be sent 48 hours in advance of the reconvened meeting. Ballots should be processed in groups, so that ballots from all opened ballot envelopes are processed in the same meeting. Election Day Meeting County boards are strongly encouraged to begin counting ballots at 2 p.m. rather than 5 p.m. on Election Day to avoid a delay in absentee results being released on election night.15 County boards may begin counting UOCAVA ballots beginning on 9 a.m. on Election Day. To begin counting ballots prior to 5 p.m., a county board must adopt a resolution at least two weeks prior to the election stating the hour and place of counting of absentee ballots. The resolution also may provide for an additional meeting following the day of the election and prior to the day of canvass to count absentee ballots received pursuant to G.S. 163-231(b)(ii) or (iii) as provided in subdivision (11) of G.S. § 163-234(11). A copy of the resolutions shall be published once a week for two weeks prior to the election, in a newspaper having general circulation in the county. Notice may additionally be made on a radio or television station or both, but such notice shall be in addi- tion to the newspaper and other required notice. At its meeting on Election Day, county boards must count all absentee ballots that have come in prior to 5 p.m. on the day before Election Day. The election results may not be released until after the polls close. Ballot Duplication UOCAVA ballots and ballots that have been damaged or otherwise cannot be read by the tabulator must be duplicated in order to be scanned by the machine and to avoid having to manually enter 14 G.S. § 163-234(3): “Notwithstanding the provisions of subdivision (2) of this section, a county board of elections may, at each meeting at which it approves absentee ballot applications pursu- ant to G.S. 163-230.1(c) and (c1), remove those ballots from their envelopes and have them read by an optical scanning machine, without printing the totals on the scanner.” (Emphasis added). 15 G.S. § 163-234(2). 8 the voter’s selections into the reporting software. County boards may adopt a policy to authorize a bipartisan team of staff members to duplicate ballots outside of an absentee board meeting. The policy must include the following: • Each bipartisan duplication team must consist of at least three staff members, with no more than two members being of the same political affiliation. It is a best practice to have at least four members, two of each political party, to ensure accuracy. • The director must supervise and train all members of the duplication team and assign the following roles: o Ballot Caller – Announces the voter’s selections listed on the original ballot to the Ballot Duplicator and Ballot Reviewer. o Ballot Duplicator – Replicates the voter’s selections from the original ballot onto the machine-readable ballot as instructed by the Ballot Caller. o Ballot Reviewer – Reviews the Ballot Caller’s readings from the original ballot and compare it to the selections recorded on the machine-readable ballot by the Ballot Duplicator to ensure accuracy. It is a best practice to have two ballot reviewers, one who will review the selection announced by the Ballot Caller and one who will review the selection made by the Ballot Duplicator. • Prior to the start of the ballot duplication process, each member of the bipartisan duplica- tion team must complete a participation log noting the date, time, and their name, role, and party affiliation. • During the ballot duplication process, the duplication team is not permitted to leave each other’s immediate presence until the process has been completed, unless authorized by the director. • All duplicated ballots must contain the following in the blank box at the top of each ballot: o A notation (for example, “DUP”) to indicate the ballot is a duplicate of the original. o The ballot number assigned to the voter. o The precinct and VTD of the voter. • Upon completion of the process, the team must do the following: o Ensure that the duplicated ballots are attached to the corresponding original ballots for the Board to verify at its next scheduled meeting. o Enter the time of completion and their signatures to the ballot duplication log. o Provide the completed duplication log and the ballots to the director. • The director must ensure that the ballots are kept in a secured container until the next ab- sentee board meeting. • The board must review each duplicated ballot at its next scheduled board meeting prior to approval of the ballots. It is a best practice to have a duplication team present at every meeting to duplicate any damaged ballots that are identified during the board meeting. Duplicating ballots at the board meeting when the ballot envelope was approved reduces the likelihood of mistakes. 9 Control of Board Meeting The county board of elections is responsible for maintaining control at its absentee board meetings. The county board must ensure that the public receives proper notice of the board meeting and is given the opportunity to attend. However, the county board should not permit public comment while absentee envelopes are being adjudicated, or while ballots are being duplicated, sorted, or tabulated. The board also should not permit questions from the public as the board approves ab- sentee envelopes. Further, G.S. 163-234 is very clear that others shall be permitted to attend the meeting during which absentee ballots are counted and observe the process, but may not interfere with the election officials in the discharge of their duties.16 It is recommended that the board chair explain the process at the beginning of the board meeting and state that public comment is not permitted during the approval and scanning of absentee bal- lots. The board may, but is not required to, designate a separate part of the meeting for public comment. At the end of each board meeting, the goal is total reconciliation of all envelopes and ballots. To do that requires careful control of every document in the room. It also requires ensuring that the board members focus on the task at hand and that the public remains in an observer rather than a participant role. Envelopes and ballots must not be allowed to be removed from assigned areas. The reconciliation process shall ensure the number of ballot envelopes in each stack is tracked, and that the number of envelopes approved at the meeting is equal the number of ballots entered into the tabulator. The county board shall record the count on the tabulator at the start and end of each absentee meeting. A sample reconciliation log that you may use for process is available here. Public Records Requests for Envelopes Some county boards may have received public records requests for absentee ballot return enve- lopes. Ballot return envelopes are public records under North Carolina's Public Records Act, with exceptions for voter signature and CIV number.17 Public records requests should not be fulfilled during a board meeting, but must be fulfilled as promptly as possible. 16 163-234(2): “Any elector of the county shall be permitted to attend the meeting and allowed to observe the counting process, provided the elector shall not in any manner interfere with the election officials in the discharge of their duties.” 17 G.S. 132-1.2(4), 163-82.10(a), 163-165.1(e). See also Numbered Memo 2016-25. 10 Providing Copies of Envelopes Prior to providing a copy of the envelope to the requestor, the voter signature and CIV number must be redacted, as the number links the envelope to a particular voter's ballot. Witness or assis- tant information may not be redacted. To redact the voter signature and CIV number, you may copy the envelope, mark through the confidential information on the copy, and then copy it again. Some counties have used a card- board or other thick paper cutout to cover the confidential information when making a copy. Digital copies may also be provided using a template redaction tool in Adobe. Viewing Envelopes Unredacted envelopes may be viewed by the public in your office, though no copy, photo, or trac- ing may be made. A county board must ensure that the requestor is monitored while reviewing the envelopes in the office to ensure the voter’s signature is not retained. Absentee ballot return envelopes contain an identifier that is linked to the ballot, so this identifier must also be redacted from public view to protect the secrecy of the ballot. Regular Meeting New Hanover County Board of Elections November 15, 2022 Subject: Public Comment Summary: This is an opportunity for members of the public to provide comment on elections-related matters. Each commenter will be limited to two minutes with a twenty-minute limit total for all public comments. Board Action Required: Discuss as necessary Item # 2 Item # 3 Regular Meeting New Hanover County Board of Elections November 15, 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 # 4