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Home My WebLink AboutBoard Meeting Agenda Packet 10-01-2024 MEETING AGENDA Date: October 1, 2024 Time: 5:00 PM Location: Bd of Elections Office, Long Leaf Room Type: Special Scheduled Attendees: Derrick R. Miller, Chair Rae Hunter-Havens, Director James Battle Morgan, Jr. Secretary Caroline Dawkins, Deputy Director Natalie Hinton-Stalling, Member Noelle Powers, Database & Systems Specialist Bruce Kemp, Member Joan Geiszler-Ludlum, Administrative Technician Tom S. Morris, Member Visitor(s): Tufanna Bradley, Assistant County Manager; Kemp Burpeau, Senior Deputy County Attorney; Karen Richards, Deputy County Attorney AGENDA ITEMS 1. Meeting Opening a. Call to Order b. Pledge of Allegiance c. Approval of Agenda d. Approval of Minutes (9/10/2024) 2. Public Comment Period • 2-minute limit • 10-minute limit total 3. New Business • Review of Absentee Ballot Applications 4. Closed Session (N.C. Gen. Stat. § 143-318.11(6)) 5. General Discussion • Other Elections-Related Matters 6. Adjournment Agenda packets are sent via email in advance of meetings. Special Meeting New Hanover County Board of Elections October 1, 2024 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Item # 1c Special Meeting New Hanover County Board of Elections October 1, 2024 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 9/10/2024 meeting. Board Action Required: Staff recommends approval Item # 1d Board Minutes – 09/10/2024 Page | 1 REGULAR MEETING New Hanover County Board of Elections September 10, 2024 5:30 P.M. ATTENDANCE Members: Derrick R. Miller, Chair James Battle Morgan, Jr., Secretary Natalie Hinton-Stalling, Member Bruce Kemp, Member Tom Morris, Member Staff: Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Noelle Powers, Elections Systems Administrator Joan Geiszler-Ludlum, Administrative Elections Technician Visitors: Tufanna Bradley, Assistant County Manager; Kemp Burpeau, Deputy County Attorney; Karen Richards, Deputy County Attorney Public Attendees: Clarice Reber, Jana Albritton, League of Women Voters LCF; Matthew Emborsky, NHC GOP; Susanne Werner, NHCDP Virtual Attendees: Wendy Hunt; Anonymous2; Jessica O’Neill 1. MEETING OPENING a. Call to Order Chair Miller called the meeting to order at 5:30 p.m. The New Hanover County Board of Elections meeting was held in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. All members were present. Chair Miller reminded the audience to silence their cell phones, that the meeting is being recorded and live streamed on the internet, and to avoid conversation and crosstalk during Board discussion. b. Pledge of Allegiance Chair Miller invited all in attendance to rise and recite the Pledge of Allegiance. Board Minutes – 09/10/2024 Page | 2 c. Approval of Agenda Chair Miller moved to amend the agenda as submitted to take up General Discussion after Director Update and before New Business for the convenience of the public and virtual attendees. Hearing no objection, Chair Miller said the agenda is adopted as amended. d. Approval of Minutes Chair Miller called on Board members for any corrections to the Minutes of the 8/28/2024 Board meeting as submitted. Hearing none, Chair Miller said the Minutes are approved as submitted without objection. 2. PUBLIC COMMENT PERIOD Chair Miller called upon the public attendees for their comments or questions, limited to two minutes each, total of 20 minutes. Seeing and hearing no public in-person or virtual attendees wishing to comment, Chair Miller closed the Public Comment period. 3. DIRECTOR’S UPDATE a. Financial Update Director Hunter-Havens presented the budget update through August 31 and the budget summary for FY23-24. The Director noted the overages in several FY23-24 line items under “Salaries and Benefits” and “Operating Expenses” line items. While some overages were offset within the Elections budget, others were offset by other sources of revenue, including reimbursement of some costs from the municipalities for the 2023 Municipal Elections. The Director said the overage in cellular expenses due to an identified billing error should be credited soon. The delay is the more involved process to reimburse a government entity. Overages in lease, subscription software, and advertising lines are due to rate increases during FY23-24 which are incorporated in the FY24-25 budget. Member Kemp asked questions about the Casual Part-time salaries and Member Morris asked about additional County funding to cover the unanticipated costs of the 2024 second primary. b. List Maintenance Director Hunter-Havens reported that list maintenance in August resulted in removal of 1,169 voter registrations consistent with NC Gen. Stat. § 163-82.14, and processed 2,498 new registrations, 2,032 registrations without changes, and 2,461 voter registration updates. The agenda packet includes additional information about the sources of Board Minutes – 09/10/2024 Page | 3 registration, snapshots of administrative processes, and a breakdown of county voter registrations. 6. GENERAL DISCUSSION Chair Miller called on the Board members for any discussion of election-related matters. Chair Miller asked the Director about the impact of the court-ordered delay to begin mailing absentee ballots and requiring printing of new ballots to remove the We the People party nominees for president and vice president and the impact on Early Voting. Director Hunter-Havens reported that 3,530 absentee ballots have been affected so far, with more added each day. All ballot packets and printed materials will be segregated and sent to storage. This office uses ballots and labels printed on demand but must reorder the stock of pre-printed emergency backup ballots. Expedited production of revised ballots will add 25 percent to the printing costs, estimated at about $1,400 for the reprinted ballots with a total cost of about $3,000 total including additional paper, envelopes, toner and related printing and postage materials. Board members followed up with questions about the impact on Early Voting. The Director said the new ballots will be ready in time for Early Voting, but the impact on the numbers of voters is unclear. The Director said the office is pivoting and adjusting to comply with the court order. In reply to a question from Member Kemp about the scheduled October 1 special absentee meeting, Director Hunter-Havens said there should be returned absentee ballots to consider at that meeting but that may change. In reply to a request from Member Kemp to tour the new Elections building before Early Voting, Assistant County Manager Bradley said a tour can be scheduled for Board members by request. Member Kemp asked about setting Board review policies for the special absentee meetings. Chair Miller said that will be considered at the first special absentee meeting. Hearing no further comments or questions from Board members, Chair Miller closed the General Discussion. 4. NEW BUSINESS a. 2024 General Election Notice Director Hunter-Havens presented the 2024 Notice of General Election required by NC Gen. Stat. § 163-33 (8) to inform voters of the upcoming Election. The Notice must be published once a week during the 20-day period preceding the voter registration deadline. The Director noted the highlighted placeholder TBD for the date to mail absentee ballots Board Minutes – 09/10/2024 Page | 4 in the 7th paragraph. Once NCSBE announces the rescheduled mailing date, that date will be filled before publication. Based on NCSBE guidance, she recommended approving the Notice with that contingency once the NCSBE sets the new mailing date. Chair Miller moved approval of the 2024 General Election Notice contingent on filling in the date of mailing absentee ballots when the NCSBE makes that determination, seconded by Member Morris. Chair Miller called for any discussion of the motion. In response to a question from Member Kemp about the legal requirements for publication, Director Hunter-Havens said the NCSBE is aware of the statutory requirement and the lead time needed for publication and she is awaiting their further guidance. Hearing no further questions or discussion, Chair Miller called the vote. Motion carried unanimously. b. Resolution to Adopt a Time to Count Ballots Director Hunter-Havens presented a resolution to set times for counting supplemental ballots as permitted by statute. County boards are required to count absentee ballots at 5:00 p.m. on Election Day but may set a different time between 2:00 p.m. and 5:00 p.m. that day by adopting a resolution at least two weeks before Election Day. County boards may also by resolution set an additional meeting between Election Day and the day before canvass to count supplemental ballots. The resolution before the Board adopts a time for counting ballots at 2:00 p.m. on November 5 and 14, 2024. The adopted resolution must be published in a newspaper of general circulation once a week during the two weeks prior to Election Day. Member Kemp moved approval of the resolution as presented, seconded by Member Hinton-Stalling. Hearing no questions or discussion, Chair Miller called the vote. Motion carried unanimously. c. Appointment of Precinct Officials Director Hunter-Havens presented an overview of the proposed appointment of Election Day precinct assistants. She said the New Hanover County Republican Party chair submitted a list of recommended officials, which staff has reviewed. The county Democratic Party chair has not submitted a list of recommended officials. County boards are authorized to appoint officials but may authorize staff to assign assistants to polling places to ensure sufficient, bipartisan staffing and address the fluidity of the staffing schedules, up to and including Election Day. She said staff will present additional recommendations for appointments of assistants representing other recognized political parties to ensure parity where possible. Director Hunter-Havens called on Deputy Director Dawkins to review the staff appointment recommendations. Deputy Director Dawkins said the Board has two confidential lists before them, one listing all the names submitted by the County Republican chair, and the second listing the available and recommended officials after staff review. She said staff reviewed the list Board Minutes – 09/10/2024 Page | 5 of 157 submitted names and removed the names of officials previously appointed, duplicate names, those who have resigned or did not complete on-boarding, transfers, and any disqualified officials to compile the second list of 53 officials for assignment in their home precincts. She said there are a few names to review in Closed Session. She recommended that the Board appoint the listed officials for precincts CF06, FP03, FP06, FP08, H01, H02, H04, H12, M02, M04, M07, W15, W21, W30, W33, and WB Chair Miller moved to approve the appointment of 22 officials in the 16 identified home precincts for Election Day, seconded by Member Hinton-Stalling. Chair Miller called for any Board discussion of the motion. Member Kemp asked several questions about the list of recommended officials to assure achieving greater party parity. Hearing no further questions or discussion, Chair Miller called the vote. Motion carried unanimously. 5. CLOSED SESSION Chair Miller moved to enter closed session to discuss personnel matters pursuant to NC Gen. Stat. §143-318.11(6), seconded by Member Kemp. Motion carried unanimously. Closed Session began at 6:16 p.m. The Board returned to open session at 6:42 p.m. Chair Miller moved to appoint the 17 people reviewed in the closed session to serve in their home precincts, seconded by Member Kemp. Motion carried unanimously. Chair Miller said that leaves 14 officials for further consideration for assignment as openings arise. Chair Miller said that concludes the agenda and called for a motion to adjourn the meeting. 6. ADJOURNMENT Member Morris moved to adjourn the meeting, seconded by Member Kemp. Motion carried unanimously. The meeting adjourned at 6:45 p.m. The next Board meeting is scheduled to be held on October 1, 2024, at 5:00 p.m., at the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. APPROVED BY: RESPECTFULLY SUBMITTED: _______________________________ _____________________________ JAMES BATTLE MORGAN, JR. RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Special Meeting New Hanover County Board of Elections October 1, 2024 Subject: Public Comment Period Summary: This is an opportunity for members of the public to provide comments on elections-related matters. Each commenter will be limited to two minutes. There is a limit of 10 minutes total for the public comment period. Board Action Required: Discuss as necessary Item # 2 Special Meeting New Hanover County Board of Elections October 1, 2024 Subject: Review of Absentee Ballot Applications Applicable Statutes and/or Rules N.C. Gen. Stat §§ 163-229(b) and 163-230.1(f) (Modified by Session Law 2023-140 (S747), NCSBOE Numbered Memos 2024-06, 2021-03, 2020-23, 2020-25, 2022-11, 2021-07, 2020-29, and 2023-03 Summary: At each absentee board meeting, the board should either approve or disapprove the absentee applications assigned to that meeting date. All civilian absentee ballot applications for the 2024 General Election must include the following: 1.The voter’s certification of eligibility to vote the enclosed ballot. 2.A copy of an acceptable form of Photo ID or completed Photo ID Exception Form. 3.The certification of two witnesses, to include their residence address, or one public notary. 4.The certification, to include residence address, of any individual that assisted a voter in accordance with N.C. Gen. Stat. §163-226.3 (Modified by Session Law 2023-140). Since the board has delegated so much of the administrative detail of the election functions, duties, and work of the Elections Director, the Director and staff are responsible for completing many of the administrative duties associated with by mail voting. In addition, the board authorized staff to complete the following preparatory steps via resolution approved on October 10, 2023: 1.Prior to each Absentee Review Meeting, a bipartisan team shall duplicate all UOCAVA ballots received by the Board. 2.Prior to each weekly Special Meeting held pursuant to N.C. Gen. Stat. § 163-230(e)-(f), and prior to any meeting held pursuant to N.C. Gen. Stat. § 163-234 at which absentee ballot applications/container-return envelopes are to be passed upon. the Director or staff shall inspect each absentee ballot application/container-return envelope to evaluate whether it: a.Complies with all the requirements such that it should be recommended for approval, b.Is defective but can be cured, c.Is defective but cannot be cured, or d.has a status that needs to be evaluated by the Board. 3.At each Absentee Review Meeting and any meeting under N.C. Gen. Stat.§ 163-234, once the Board has approved absentee ballot applications/container-return envelopes, the Director and staff shall “remove th[e) ballots from th[ose] envelopes and have them read by an optical scanning machine, without printing the totals on the scanner." Item # 2 Item # 3 The review of certain types of absentee ballot applications cannot be delegated to staff members. Specifically, county boards are required to individually review the following types of applications: •Have been recommended for disapproval by staff •Have a cure certification associated with the ballot application •Have a Photo ID Exception Form where staff has indicated that available information may lead the board to conclude that the Form is false •Where staff need further guidance from the board as to whether the application was properly executed. The board by majority vote may accept staff’s recommendations for approval without reviewing all absentee applications that do not specifically require board review (Numbered Memo 2020-25). However, this delegation must include a process for the board to spot-check the ballot envelopes to ensure accuracy and consistency. County boards are authorized to use two bipartisan teams of board members to conduct this type of review. There are three main types of deficiencies that are managed by staff: 1) Return Deficiencies, 2) Ballot Application Deficiencies, and 3) Photo ID Documentation Deficiencies (Numbered Memo 2021-03). 1)Return Deficiencies – These deficiencies are associated with the actual envelopes, not the ballot application. The ballot envelope is returned to the county board of elections office in an outer return envelope to ensure the privacy of the accompanying photo ID documentation. These return deficiencies require that the ballot be spoiled and reissued to the voter: •The ballot envelope is unsealed or appears to have been opened and resealed and the return envelope is not sealed or appears to have been opened and resealed. •Someone other than the voter returns a ballot envelope that is not sealed and the return envelope is also unsealed or there is no return envelope. Even if the person is authorized to return the ballot, they cannot seal the ballot envelope without the voter being present. The voter must direct that the ballot envelope be sealed in their presence. •The return or ballot envelope indicates the voter is requesting a replacement ballot. Other anomalies do not require that the ballot be spoiled and reissued. In these situations, the ballot is received in a sealed envelope but there is an anomaly with one or both envelopes. These anomalies include the following: •Ballot envelope is unsealed or appears to have been opened and resealed but is received in a sealed return envelope. In this case, staff will make the following notation on the return envelope “sealed in return envelope” so that county board can open the return envelope and review that ballot at its next absentee board meeting. •Ballot is placed inside the clear sleeve on the outside of the ballot envelope used for photo ID documentation but the return envelope is sealed. Staff will make the following notation on the return envelope “sealed in return envelope” so that county board can open the return envelope and review that ballot at its next absentee board meeting. •Return envelope is not sealed or appears to have been opened and resealed but the ballot appears to be sealed in the ballot envelope. No special action is required before reviewing the ballot application. •A voter returns their ballot in person in an unsealed ballot envelope to our office or a one- stop site. In this case, staff will instruct the voter to seal the ballot envelope. No special action is required before reviewing the ballot application. The purpose of the return envelope is to protect the voter’s confidential information during mail transit. If a person hand delivers a sealed ballot envelope without a return envelope, staff will place the ballot envelope in a new return envelope for storage purposes. 2)Ballot Application Deficiencies - Some ballot application deficiencies can be cured with a certification by the voter while other deficiencies require that the ballot be spoiled. Deficiencies that can be cured with a cure 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) •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 correct address can be determined) •Missing witness or assistant signature •Witness or assistant signed in place of voter signature (However, if all witness or assistant information is present on the application but not on the designated lines, then it is not deficient, and the ballot should not be spoiled absent another deficiency) •If a voter’s witness is a notary, two errors in the notarial certification require that the ballot be spoiled and reissued: the notary signature is missing, or the notarial seal is missing altogether or contains missing information 3) Photo ID Documentation Deficiencies – These deficiencies are curable since the cure documentation comes from the voter. In addition, the failure to include any photo ID documentation is a deficiency that can be cured by the voter. There are two categories of Photo ID Documentation deficiencies: Photocopy of Photo ID Deficiencies: •The ID type is not acceptable for voting purposes •The ID does not meet the expiration requirements, if applicable •The photocopy is not readable, which means that the name on ID cannot be read and/or photograph does not depict a person but only a shadow or outline of a person. •Name on the ID is not the same or substantially equivalent to the voter’s name in their voter record Photo ID Exception Form Deficiencies: •The voter did not print their name on the form, unless the voter’s signature appears to be made by the voter and appears to be the name of the voter. Elections staff and board members must presume that the voter’s signature is that of the voter (even if illegible), unless there is clear evidence to rebut that presumption. •The voter did not check a box for at least one claimed exception or failed to identify their specific reasonable impediment •The voter failed to provide their NC Driver’s License Number or last four digits of their Social Security Number when the reasonable impediment selected was that the voter is unable to make a photocopy of their ID to include with the ballot. However, if the voter checked an additional box indicating another reasonable impediment, the form cannot be found deficient for the missing identification information. •The voter failed to sign the Exception Form. If a voter is physically unable to sign or make their mark due to a disability, a person of the voter’s choice should write “Disabled-cannot sign” in the signature line and complete the Voter Assistance Certification on the back of the ballot envelope (Numbered Memo 2022-11). Upon notification of a deficiency with their photo ID documentation, if a voter informs staff that their photo ID documentation in inside the ballot envelope, staff will defer the review of the photo ID documentation until the next board meeting unless there are other deficiencies that require the ballot to be spoiled and reissued. Elections staff review of photo ID documentation is for completeness, not falsity. A board’s finding of falsity must be unanimous and based on the board’s review of other specific information before the board that led it to conclude that the affidavit on the Photo ID Exception form is false. This decision must be based on facts, not on speculation. A finding of falsity may not be based on the personal opinion as to whether the voter’s asserted reason is good enough for being excepted from the photo ID requirement. This decision can only be made after the board provides the voter notice and opportunity to be heard on any grounds that the board is considering regarding a finding of falsity. Certain types of deficiencies will only be discovered if the ballot envelope is opened during a board meeting. If the ballot envelope does not contain a ballot or contains more than one ballot, then the ballot(s) need to be spoiled and reissued. If two voters switch their ballots and ballot envelopes based on the absentee number, then the county board will need to review the circumstances. If the voters in question received their ballots at the same address and there are no other deficiencies, then the ballot applications should not be spoiled. At the end of each absentee meeting, all applications and ballots should be reconciled with the number of applications approved by the board equal in number to the number of ballots scanned on the DS850. Document/s Included: NCSBOE Numbered Memos 2024-06, 2022-11, 2021-07, 2021-03, 2020-29, 2020-25, 2020-23, and 2023-03, Absentee Poll Book and Reconciliation Log Sheet (Provided at meeting) Board Action Required: Discuss as necessary and action required P.O. Box 27255 Raleigh, NC 27611 (866) 522-4723 www.ncsbe.gov Numbered Memo 2024-06 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director1 RE: Absentee Ballot Distribution for the 2024 General Election DATE: September 13, 2024 This numbered memo provides guidance on the start dates for absentee ballot distribution for military and overseas citizen voters and all other voters, respectively, in the November 2024 General Election. It also provides answers to frequently asked questions for implementing these new deadlines. This memo is required to comply with recent orders of the North Carolina Court of Appeals2 and Supreme Court of North Carolina.3 It pertains to the November 2024 general election only. 1.Ballot Distribution Date To the extent possible, we must ensure that voting procedures across the state are uniform. This includes providing an absentee voting period that is consistent from county to county, when it is no longer possible to meet the deadline in statute for the beginning of absentee voting.4 Meanwhile, we must work to meet the federal law deadline for distributing ballots to uniformed 1 This memo is issued under the authority delegated by the State Board to the executive director pursuant to G.S. § 163-22(p). This numbered memo is being issued to ensure uniformity in the processing of these forms, because there has been some indication that county boards of elections may be processing these forms differently. 2 Kennedy v. N.C. State Bd. of Elections, Case No. P24-624. 3 Kennedy v. N.C. State Bd. of Elections, Case No. 235P24. 4 See G.S. § 163-22(k), which provides that when absentee voting must start 60 days before the general election, “and the absentee ballots are not ready by that date, the State Board shall allow the counties to mail absentee ballots out as soon as the absentee ballots are available.” A court decision on that 60th day before the election this year required the reprinting of ballots. This had the effect of making the ballots for the general election “not ready,” such that the State Board must now provide for a new date for the start of absentee voting when absentee ballots will be available in all counties. 2 and overseas citizen voters. Accordingly, the dates for the start of absentee voting in the 2024 general election are as follows: • Friday, September 20, 2024 – county boards must begin distributing absentee ballots to requesting uniformed and overseas citizens (“UOCAVA” or MIL/OVR voters).5 • Tuesday, September 24, 2024 – county boards must begin distributing absentee ballots to all other eligible requesting voters (CIV and VIP voters).6 This schedule will ensure that our State meets the federal law requirement to distribute ballots to requesting UOCAVA voters by the 45th day before the election, which is Saturday, September 21, 2024.7 Only about 8% of all absentee requests are from UOCAVA voters currently. Using this schedule, staff at the State Board and county boards, along with their vendors, can concentrate on preparing the UOCAVA ballots in the coming days, including making the UOCAVA portal available for electronic delivery. In the meantime, this allows sufficient time for the much larger print orders of absentee ballots to be fulfilled and delivered to all 100 county boards. And the additional days between the UOCAVA distribution date and the distribution date for all other absentee voters will provide sufficient time for all counties to prepare their outgoing absentee ballot envelopes for the non-UOCAVA voters. 2. Preparing UOCAVA Ballots State Board staff is closely monitoring ballot preparation by the print vendors and will be coordinating the use of ballot-on-demand printers across the state. These printers will be able to fill any gaps where a county has not yet received its absentee ballots by early next week and the 5 UOCAVA stands for the Uniformed and Overseas Citizens Absentee Voting Act, 52 U.S.C. §§ 20301– 20311, a federal law that governs deadlines and procedures for voting by military service members and their families and citizens living abroad. That law has been implemented through procedures specific to North Carolina in Article 21A of Chapter 163 of the North Carolina General Statutes. “MIL” and “OVR” are administrative ballot designations for military and overseas citizen absentee voters in North Carolina, respectively. 6 CIV is an administrative designation for civilian or non-UOCAVA absentee voters, and VIP is an administrative designation for visually impaired voters who can receive and return their absentee ballot through the ballot portal. 7 52 U.S.C. § 20302(a)(8). 3 county needs its relatively smaller order of UOCAVA ballots, for voters who have requested a printed ballot for delivery through the mail, to meet the September 20 deadline. State Board staff will work over the weekend and through next week to ensure the absentee voting portal that is available for UOCAVA voters is ready for ballot delivery on September 20. The vast majority of UOCAVA voters, close to 90%, opt for electronic ballot delivery. 3. Frequently Asked Questions Here are answers to questions we have fielded from a number of county boards about implementing the new absentee ballot distribution schedule. Q1: When will the portal be open for visually impaired (VIP) voters to cast their ballots? A: VIP voters’ ballots will be sent with all other civilian ballots, on Tuesday, September 24. The portal will be configured to send and receive for only military and overseas citizen ballots on Friday, September 20. Q2: Can we start assembling absentee packets such as the absentee instructions, ID exception form, and the common ID flyer? A: Yes. Q3: Can we reuse the absentee envelopes with the same labels that were ready to go on Friday September 6th? A: Our recommendation is to print new labels. But if you have no choice but to reuse existing envelopes due to resource constraints, you must make absolutely certain that the old ballot has been replaced with the correct one. To make certain of that, you must first remove all old ballots from all absentee envelopes and strictly separate those old ballots from the assembly operation. Then, you may start inserting the new ballots into the envelopes. A data script has been applied, as of today, so that those voters’ records reflect the new send date of 09/24/24 for civilian ballots and 09/20/24 for UOCAVA ballots. Q4: If we reuse the original labels on the return envelopes, would we still need to reprint the outside label (9 x 12 envelope). A: No. 4 Q5: If we sealed our original envelopes or want to reprint labels, what can we do? A: First, you will need to remove the old ballot (the ballot with the We The People Party presidential ticket) and replace it with a new ballot (without the We The People Party presidential ticket). All old ballots must be removed from all envelopes and strictly separated before you start inserting the new ballots. You will likely need to use a new send envelope and use the “Undo” print feature in VoterView. This will create new mailing labels for voters. Q6: How should we handle our emailed UOCAVA ballots? A. Counties should “Undo” their previous emailed UOCAVA ballots and run the job to create the packets again. Q7: Will new CIV/MIL/OVR numbers be issued? A: No. Q8: Will SEIMS recognize voters with updated information and generate labels with the new address? A: If you’re undoing labels, updated voter information should be applied. If you are reusing labels, the absentee mailing will stay populated with the original mailing address and does not get updated based on a registration update. Please submit a Help Desk ticket, if you need any assistance identifying these voters. Q9: If a voter has been removed from VoterView since ballots were originally processed, will SEIMS catch this and not reprint the label? A: Yes, if you use the “Undo” feature to reprint labels. If you do not, such a voter’s ballot package will need to be manually removed. Please submit a Help Desk ticket if you need any assistance identifying these voters. Q10: Can we give out new sample ballots now? A: Yes. 5 Q11: What do we do with the ballots that have the We The People Party candidate for President on them? A: You can destroy these ballots because they are not a record pertaining to this election. They are forbidden from being used in this election. These ballots are not required to be retained for 22 months by federal law (52 U.S.C. § 20701), because they are not a record or paper “relating to any application, registration, payment of poll tax, or other act requisite to voting in [a federal] election.” Nor are they required to be retained for at least 22 months by N.C.G.S. § 163-234(10), because there will be no protest or contest “pending concerning the validity of any ballot” with the We The People Party presidential ticket, since those ballots are forbidden from being used in this election. If you do not have the time or the means to destroy them at this time you will need to keep them strictly separated from your new ballots and clearly labeled “DO NOT USE.” This is to avoid them being confused with your new ballots. Q12: What needs to be done regarding linking ballot styles? A: Updated Sample Ballots and UOCAVA Ballots have been posted and should be accessible via FileZilla: VotingSystems/[CountyName]/20241105/ As always, both types are available in original size and scaled to fit 8.5 x 11 inches. The county board may choose which size to link. There are two methods to link the new ballot styles, either of which works: (1) delete the images you linked previously, and then go through and link all of the new ones; OR (2) link the new ones, which will overwrite what you had linked previously. 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 Director1 RE: Absentee Container-Return Envelope Deficiencies DATE: June 11, 2021 (updated September 25, 2023; January 19, 2024)2 The State Board is required to provide a cure process for voters whose absentee ballot envelopes contain certain deficiencies.3 In general, the cure process for absentee-by-mail deficiencies is guided by G.S. § 163-230.1(e), as amended by Session Law 2023-140 (SB 747), and this numbered memo. The cure process for photo ID documentation containing deficiencies, when that documentation is submitted with an absentee ballot, is provided through G.S. § 163- 230.1(e), as amended by Session Law 2023-140, an administrative rule adopted by the State Board4, and is guided by this numbered memo. 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. The ballot container-return envelope (ballot envelope) and the accompanying photocopy of the voter’s photo ID or completed Photo ID Exception Form (photo ID documentation) are transmitted to the county board in an outer return envelope. This numbered memo directs the procedure county boards must use to address deficiencies in the envelopes and photo ID 1 This memo is issued under the authority delegated by the State Board to the executive director pursuant to G.S. § 163-22(p). 2 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. This numbered memo was updated on September 25, 2023, and again on January 19, 2024, to include processes related to photo ID requirements for absentee-by-mail voting. 3 See G.S. § 163-230.1(e), revised by N.C. Session Law 2023-140 § 35, to provide a cure process for deficiencies associated with returned absentee-by-mail ballots. See also Democracy NC v. State Board of Elections, 476 F.Supp.3d 158 (M.D.N.C. Aug. 4, 2020) (explaining that due process requires such a cure opportunity). 4 08 NCAC 17 .0109(b). 2 documentation, to ensure that a voter is provided every opportunity to correct certain deficiencies, while also recognizing that processes must be manageable for county boards to timely complete required tasks. No Signature Verification5 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 record, on their request form, or on their photocopy of photo ID or Photo ID Exception Form submitted with their ballot, because this is not a requirement for the approval of an absentee ballot under North Carolina law.6 County boards shall accept the voter’s signature on the ballot envelope if it appears to be made by the voter, meaning the signature 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. Types of Deficiencies Trained county board staff shall review each return envelope, executed ballot envelope, and photo ID documentation the office receives to determine if there are any deficiencies. County board staff shall, to the extent possible, regularly review these absentee ballot materials on each business day, to ensure that voters have every opportunity to timely correct deficiencies.7 Review for deficiencies occurs after intake. The initial review is conducted by staff to expedite processing of the envelopes in advance of a county board absentee meeting.8 5 Session Law 2023-140 § 48 provides for a signature verification pilot program to be conducted during the 2024 primary election. As stated in Section 48.(c), however, “[i]n implementing the pilot program established in this section, no executed mail-in absentee ballot shall be rejected by the county board of elections for failing any signature verification. All executed mail-in absentee ballots that are otherwise eligible to be counted in accordance with Chapter 163 of the General Statutes shall be counted.” 6 See In re: Request for Declaratory Ruling on Signature Matching for Absentee Ballot Requests and Ballot Envelopes, N.C. State Bd. of Elections (July 22, 2022). See also Numbered Memo 2020-15, which explains that signature comparison is not permissible for absentee request forms. 7 Specifically for ballot application deficiencies and photo ID documentation deficiencies, discussed below, G.S. § 163-230.1(e) requires that the county board “promptly notify the voter of the deficiency and the manner in which the voter may cure the deficiency.” 8 See Numbered Memo 2020-25 regarding preparatory steps for absentee meetings. 3 There are three categories of deficiencies: 1) return deficiencies, 2) ballot application deficiencies, and 3) photo ID documentation deficiencies. 1. Return Deficiencies Previously, a voter transmitted their absentee-by-mail ballot to the county board in a single ballot container-return envelope. However, with the implementation of photo ID requirements starting with the 2023 municipal elections, the ballot envelope is now transmitted to the county board in an outer return envelope to ensure the privacy of the accompanying photo ID documentation. As a result, there may be certain instances where the return of the absentee ballot requires the ballot to be spoiled and the absentee package reissued to the voter. Deficiencies that Require the Ballot to Be Spoiled (Civilian) • Ballot is inside the ballot envelope, which is not sealed or which appears to have been opened and re-sealed, and the ballot envelope is received in a return envelope which is not sealed or which appears to have been opened and re-sealed.9 • Ballot is inside the executed ballot envelope, which is not sealed, and someone other than the voter hand delivers the ballot envelope to an early voting site or the county board office, and the return envelope is also unsealed or there is no return envelope. Even if the person is authorized to return this ballot, they cannot seal the ballot without the voter being present. The voter must direct that the ballot be sealed “in the voter’s presence.”10 • The return or ballot envelope indicates the voter is requesting a replacement ballot. If a county board identifies one of these deficiencies, county board staff shall spoil the returned ballot and reissue a ballot, as long as the new ballot is issued before Election Day, along with a notice explaining the county board office’s action, in accordance with this numbered memo. Anomalies that Are Not Deficiencies (Civilian)11 • Ballot is inside the executed ballot envelope, which is not sealed or which appears to have been opened and re-sealed, but the ballot envelope is received in a sealed return 9 Ballots must be “sealed in the container-return envelope.” G.S. § 163-230.1(d); see also G.S. § 163- 231(a)(3). 10 G.S. § 163-231(a)(3). 11 With all ballot mistakes or anomalies, elections officials must be guided by the clear instruction in the federal Civil Rights Act of 1964 to not allow an error on ballot materials to lead to a ballot’s rejection when that error is immaterial to determining a voter’s eligibility to cast the ballot: “No person acting under color of law shall . . . deny the right of any individual to vote in any election because of an error or omission on any record or paper relating to any application, registration, or other act requisite to voting, if 4 envelope. Immediately upon opening the return envelope and noticing this situation, staff should re-seal the return envelope with a notation of “sealed in return envelope.” The county board should open the return envelope and address that ballot at its next absentee meeting.12 • Ballot is not inside the ballot envelope or has been placed inside the clear sleeve on the ballot envelope used for including the photo ID documentation, but the return envelope is sealed. Immediately upon opening the return envelope and noticing this situation, staff should re-seal the return envelope with a notation of “sealed in return envelope.” The county board should open the return envelope and address that ballot at its next absentee meeting.13 • Ballot is received in a return envelope that is not sealed or appears to have been opened and re-sealed, but the ballot is inside the executed ballot envelope that is sealed. This situation does not require any special action to document the anomaly before presenting the ballot envelope to the county board. • Ballot is inside the executed ballot envelope, which is not sealed, and the voter hand delivers the ballot envelope to an early voting site or the county board office. Before taking receipt of the envelope, staff should request that the voter first seal the ballot envelope. In all of the above situations, the ballot was received in a sealed envelope and is therefore not deficient.14 A person hand-delivering the absentee ballot, whether it is the voter or someone authorized to return the voter’s ballot, is not required to deliver the ballot envelope inside the return envelope for the absentee application to be approved. The return envelope is designed to protect the voter’s confidential identifying information during mail transit. If the person hand-delivers only the sealed ballot envelope, staff should follow their usual storage practices and keep the ballot such error or omission is not material in determining whether such individual is qualified under State law to vote in such election.” 52 U.S.C. § 10101(a)(2)(B). 12 In this situation, for the purposes of staff's initial review of photo ID documentation pursuant to 08 NCAC 17 .0109(b), the ballot application is not “received” until the return envelope is opened at the absentee meeting. 13 In this situation, for the purposes of staff's initial review of photo ID documentation pursuant to 08 NCAC 17 .0109(b), the ballot application is not “received” until the return envelope is opened at the absentee meeting. 14 G.S. §§ 163-230.1(d), 163-231(a)(3). 5 envelope in a secure location, which may include placing the ballot envelope in a new return envelope for storage purposes. 2. Ballot Application Deficiencies The ballot application is the form on the ballot envelope that is completed by the voter, their witnesses or notary, and assistant (if applicable).15 Ballot application deficiencies fall into two main categories: those that can be cured with a cure certification (i.e., an attestation) by the voter, 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 the Voter Notification Section below. 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.16 • Voter signed in the wrong place.17 The cure certification process applies to civilian and UOCAVA voters. 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: • The name of the witness or assistant is not printed,18 unless the witness’s or assistant’s signature is legible such that the name can be determined, in which case the ballot envelope is not deficient and the ballot shall not be spoiled for this reason.19 • A witness or assistant did not print their address.20 15 G.S. § 163-229(b). 16 G.S. § 163-230.1(e)(1). 17 G.S. § 163-230.1(e)(2). 18 G.S. § 163-230.1(e) provides that “The identification of the two persons witnessing the casting of the absentee ballot in accordance with G.S. 163-231(a) is not a curable deficiency.” However, 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 ballot envelope. 19 G.S. § 163-231(a)(5) (“Failure to include a printed witness name does not invalidate the application and certificate if the identity of an individual can solely be ascertained by the witness’s signature.”). 20 Failure to list a witness’s ZIP code does not invalidate the ballot 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 6 • 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. However, 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 ballot envelope is not deficient and the ballot shall not be spoiled for this reason. Additionally, when a voter’s witness is a notary, two errors in the notarial certificate will result in the ballot being spoiled: 1) the notary’s signature is missing, or 2) the notarial seal is missing altogether or contains missing information. As discussed in Numbered Memo 2021-07, other technical errors with the notarial certificate will not affect the sufficiency, validity, or enforceability of the notarial certificate itself or the underlying document and are not considered deficiencies. 3. Photo ID Documentation Deficiencies When a voter includes photo ID documentation with their absentee ballot envelope, there may be deficiencies in that documentation that require a cure notice to be sent to the voter. All deficiencies with a voter’s photo ID documentation are curable, because the cure documentation comes from the voter. 21 Photocopy of Photo ID Deficiencies Deficiencies in a photocopy of a voter’s photo ID include: • The ID is not a type of ID that is acceptable for voting purposes under 08 NCAC 17 .0101(a)(1). • The ID does not meet expiration requirements, if applicable. 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 ballot 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 and a new ballot reissued. See Numbered Memo 2020-29 for additional information regarding address issues. 21 G.S. § 163-230.1(e) (“Curable deficiencies are deficiencies that can be cured with supplemental documentation or attestation provided by the voter[.]”). 7 • The photocopy is not readable, which means that the name on the ID cannot be read, the photograph on the ID does not depict a person (e.g., it only depicts a shadow or outline of a person), or both. • The name on the ID is not the same as or substantially equivalent to the voter’s name in their voter record. Any difference between the voter’s address on their ID and the address in their registration record is not a deficiency. Photo ID Exception Form Deficiencies Deficiencies in a Photo ID Exception Form include: • The voter did not print their name on the Form, unless the voter’s signature on the Form appears to be made by the voter, meaning the signature on the Form appears to be the name of the voter and not some other person. The county board shall presume that the voter’s signature is that of the voter, even if the signature is illegible, unless there is clear evidence to rebut this presumption. • The voter did not check a box for at least one claimed exception from the photo ID requirements, or if the exception is a reasonable impediment, the voter failed to identify their specific reasonable impediment (including by writing their reason if they chose “Other”22). • If the reasonable impediment chosen is that the voter is unable to make a photocopy of their ID to include with their ballot, the voter did not include their North Carolina driver’s license number, DMV ID number, or last 4 digits of their social security number.23 However, if the voter has additionally checked a box indicating another reasonable impediment that prevents them from including a copy of a photo ID, the Form cannot be found deficient for the missing identification number alone. 22 If the voter writes a reason for “Other” but does not check the “Other” box, the Form is not deficient for that reason alone. Similarly, if the voter writes their North Carolina driver’s license number, DMV ID number, or last 4 digits of their social security number but does not check the “I am unable to include a photocopy of my photo ID with this absentee ballot envelope” box, the Form is not deficient for that reason alone provided that the voter did check the first box indicating that they suffer from a reasonable impediment that prevents them from including a copy of photo ID. 23 G.S. § 163-230.1(g)(2). 8 • The voter did not sign the Form.24 Additionally, a voter’s failure to include any photo ID documentation—either a photocopy of their ID or an Exception Form—is a deficiency that may be cured.25 A voter may respond to a notification that their ballot is missing photo ID documentation by stating that it is in the ballot envelope. If this occurs, and staff have not otherwise identified any return or ballot application deficiencies that would require the ballot to be spoiled and reissued, staff must defer the review of the photo ID documentation to the next absentee board meeting, when the county board can review the application and, if approved, open the ballot envelope and confirm photo ID compliance.26 If the board identifies a photo ID deficiency at that point, staff should be instructed to notify the voter of the opportunity to cure as explained further in this memo. County Board Review of Photo ID Exception Forms for Falsity Although a county board’s finding that a Photo ID Exception Form is false will result in the absentee ballot being rejected, this is not a “deficiency” in the same sense as the ones listed above—where staff will take action to notify the voter to address a deficiency. Staff deficiency review of Photo ID Exception Forms is for completeness—not falsity.27 A board’s finding of falsity can only come after the board gives the voter notice and an opportunity to be heard on the matter. See Numbered Memo 2020-25, p 8 (“Review of Photo ID Exception Forms”). County boards shall follow the applicable administrative code provisions28 and Numbered Memo 2023- 03, pp. 11–13, when considering whether a Photo ID Exception Form is false. 24 If a voter is unable to sign the Photo ID Exception Form due to a disability, the person of the voter’s choice who is assisting them can sign the Form on the voter’s behalf and must complete the assistant certification on the envelope. See Numbered Memo 2022-11, p. 3 (Court Order Regarding Assistance for Absentee Voters with Disabilities). 25 G.S. § 163-230.1(e)(3). 26 This does not prevent the voter from also choosing to send photo ID cure documentation to the county board while its review of the application is pending, and staff may encourage the voter to do so when time is of the essence. 27 Of course, staff may flag an Exception Form for the board’s review at a meeting if staff has specific information suggesting the form is false. 28 See 08 NCAC 17 .0109(c). 9 4. Deficiencies that are first discovered at a board meeting Some deficiencies will not be apparent until a board meeting and, when discovered, will require board action at that time. These deficiencies can include the following: • There is no ballot in the ballot envelope. In this situation, although there is no ballot to spoil, the entire absentee package must be reissued to the voter so that the statutory requirements for voting and transmitting an absentee ballot can be met. • There is more than one ballot in the ballot envelope. In this situation, both ballots will need to be spoiled and new absentee ballot packages issued to both voters, because it will not be possible to determine which of the two ballots were voted by the voter who completed the application. • Two voters’ ballots and ballot envelopes were switched, based on the county board’s review of the CIV numbers (ballot identifying numbers). In this situation, the county board will need to consider the circumstances of the ballots and ballot envelopes together to decide whether to approve the ballots. If the two voters had their absentee ballots sent to the same address and there are no issues with the applications, then the county board should not spoil the ballots, because under those circumstances, each voter has properly attested to voting the ballot enclosed with their application. The ballot identifying numbers associated with the enclosed ballots are used for official tracking purposes, and voters in the same household should not have their ballots rejected for failing to ensure these numbers match between their ballots and applications, which is neither a requirement for approval of the ballot under state law nor material to determining a voter’s eligibility to cast the ballot under federal law.29 The board staff should make a note of the ballot number that now corresponds with the voter in the SEIMS record. If the county board disapproves a ballot envelope by majority vote in a board meeting, it shall proceed according to the notification process in G.S. § 163-230.1(e) and as outlined below. If the county board disapproves a ballot for a reason based on the voter’s photo ID documentation, it shall proceed according to the notification process in 08 NCAC 17 .0109 and as outlined below. Voter Notification Sending an Absentee Ballot Deficiency Notification or New Ballot If there are any return deficiencies or ballot application deficiencies, the county board of elections shall mail a notice to the voter within one business day of identifying the deficiency to inform the voter there is an issue with their absentee ballot, enclosing an absentee ballot 29 See 52 U.S.C. § 10101(a)(2)(B). 10 deficiency notification, which contains the cure certification, or a new ballot. 30 The written notice shall also include information on how to vote in-person during the early voting period and on Election Day. When the voter is issued a new ballot, they must include new photo ID documentation with their ballot when transmitting it back to the county board, because each absentee ballot envelope “returned to the county board . . . shall be accompanied by” a photocopy of the voter’s photo ID or Photo ID Exception Form.31 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 absentee ballot deficiency notification should be in an official envelope so that it indicates 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 provided their phone number or email address on the absentee ballot request form, then the county board shall additionally notify the voter of the curable deficiency by phone or email.32 Like with the mail notice, this shall be done within one business day of identifying the deficiency, and the same information shall be provided as in the mail notice. If a voter did not provide their phone number or email address on the absentee ballot request form, then staff shall additionally notify the voter by phone or email if the voter has a phone number or email address contained in the voter’s registration record. If both phone and email are available, notify the voter by email. If notifying the voter by email, the county board shall include the absentee ballot deficiency notification document that is also mailed to the voter. If the county board sends the notification by email and by mail, the county board should encourage the voter to only return one of the notifications with the 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. 30 When there is a curable deficiency, G.S. § 163-230.1(e) specifically provides that the county board must “promptly notify the voter of the deficiency and the manner in which the voter may cure the deficiency.” If a ballot must be spoiled and reissued, the same need to act promptly exists. 31 G.S. § 163-230.1(f1). 32 G.S. § 163-230.1(e). 11 If there is a photo ID documentation deficiency, the county board must mail notice to the voter within one business day of identifying the deficiency to inform the voter there is an issue with their absentee ballot, enclosing an absentee ballot deficiency notification that identifies the specific deficiencies with the photo ID documentation.33 The notification must also inform the voter that the voter, the voter’s verifiable legal guardian or near relative, or a person of the voter’s choice if the voter needs assistance due to the voter’s disability, may provide the photo ID cure documentation to the county board.34 If the voter provided their phone number or email address on the absentee ballot request form, then the county board shall additionally notify the voter of the photo ID documentation deficiency by phone or email using the phone number or email address listed on the request form.35 Like with the mail notice, this shall be done within one business day of identifying the deficiency, and the same information shall be provided as in the mail notice. If a voter did not provide their phone number or email address on the absentee ballot request form, then staff shall additionally notify the voter by phone or email, using any phone number or email address contained in the voter’s registration record.36 If both phone and email are available, notify the voter by email. If notifying the voter by email, the county board shall include the absentee ballot deficiency notification document that is also mailed to the voter. The photo ID cure documentation can be either a new photocopy of the voter’s photo ID or a new Absentee Photo ID Exception Form. A voter who submitted a deficient photocopy of their photo ID may also submit a Photo ID Exception Form for the first time. A voter may choose to do so, for example, because in this instance they may no longer be able to make a photocopy of their ID to include with their ballot. Likewise, a voter who submitted a deficient Photo ID Exception Form may also submit a photocopy of a photo ID for the first time. A voter may choose to do so, for example, because they may have obtained a photo ID, or the means to make a photocopy, since the time at which they transmitted their absentee ballot to the county board. Accordingly, when sending an absentee ballot deficiency notification for a photo ID documentation deficiency, the county board must include a blank Absentee Photo ID Exception Form. 33 As explained above, all photo ID documentation deficiencies are curable, and when there is a curable deficiency, G.S. § 163-230.1(e) specifically provides that the county board must “promptly notify the voter of the deficiency and the manner in which the voter may cure the deficiency.” See also 08 NCAC 17 .0109(b). 34 08 NCAC 17 .0109(b). 35 G.S. § 163-230.1(e). 36 08 NCAC 17 .0109(b). 12 Receipt of a Cure Certification or Photo ID Cure Documentation The cure certification or photo ID cure documentation must be received by the county board of elections by 5 p.m. the day before county canvass.37 The cure documents may only be returned by the voter, the voter’s near relative or legal guardian, a multipartisan assistance team (MAT), or a person of the voter’s choice if the voter needs assistance due to the voter’s disability.38 A cure document returned by any other person is invalid. The cure documents may be submitted to the county board office by email, by mail or commercial carrier, in person, or by fax.39 When submitting cure documents by email, the voter may attach an image of their cure documentation (e.g., emailing a photo of their photo ID or executed Exception Form).The documents must be received by the deadline (not postmarked by the deadline). If a voter appears in person at the county board office to cure their ballot, they may also be given, and can complete, a cure certification. Similarly, a voter may appear in person and 37 G.S. § 163-230.1(e) (“Any container-return envelope with a curable deficiency that is transmitted to the county board shall be considered timely if cure documentation is received no later than the end of business on the business day before the canvass conducted by the county board of elections held pursuant to G.S. 163-182.5.”). 38 Voters who require assistance in returning their ballot due to the voter’s disability, can direct the person of their choice to return the ballot according to the voter’s instruction (i.e., by mail or in person to the county board). See Numbered Memo 2022-11. 39 Although G.S. 163-230.1(e) now provides that photo ID cure documentation “may be transmitted via e- mail to the county board of elections,” this does not preclude the use of email to transmit a cure certification for ballot application deficiencies, because the statute is otherwise silent on the manner of transmittal and form of receipt of cure documentation for those deficiencies, and the statute’s instruction to notify a voter of a curable deficiency by email indicates transmission of cure documentation by email is permissible. 13 complete a Photo ID Exception Form to accompany the ballot envelope,40 or request that staff make a photocopy of the voter’s photo ID to accompany the ballot envelope.41 It is not permissible for a 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, making a photocopy of the voter’s photo ID, or filling out the Photo ID Exception Form, but the certification and Photo ID Exception Form must be signed by the voter.42 A wet ink signature is not required for cure documents, 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 an electronic signature program, such as DocuSign. County Board Review of Cure Documentation At each absentee board meeting, the county board of elections may consider deficient ballot return envelopes for which cure documentation has been returned, whether a cure certification or photo ID documentation. The county board shall consider together the executed absentee ballot envelope and the cure documentation. If the cure documentation was timely received, includes the required documentation or attestations, and was returned by an authorized person, the county board of elections shall approve the absentee ballot. See Numbered Memo 2020-25. Data Entry in SEIMS County board staff shall follow the instructions provided by the State Board in the most recent guide for the proper entry of data in SEIMS when processing absentee ballots and addressing deficiencies. Data shall be promptly entered as ballots are processed. This will ensure that the data maintained by the county boards and State Board follows uniform conventions and is up to date. This will help ensure the processing of absentee ballots is transparent to the public. 40 The option to complete a Photo ID Exception Form in the county board office is only available for voters who are voting absentee-by-mail. Voters who vote in person at an early voting site or on Election Day must complete the Photo ID Exception Form at the voting site. See Numbered Memo 2023-03. 41 See Numbered Memo 2020-23 regarding staff making photocopies of photo IDs for inclusion with an absentee ballot envelope. 42 If a voter is physically unable to sign or make their mark on the Photo ID Exception Form due to disability, any person of that voter’s choice can write in the signature line, “Disabled - cannot sign.” See Numbered Memo 2022-11. Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-23 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: In-Person Return of Absentee Ballots DATE: September 22, 2020 (updated September 29, 2023) Absentee-by-mail voters may choose to return their ballot by mail or in person. Voters who return their ballot in person may return it to the county board of elections office by 5 p.m. on Election Day or to any early voting site in the county during the early voting period. This numbered memo provides guidance and recommendations for the safe, secure, and controlled in- person return of absentee ballots.1 General Information Who May Return a Ballot For most voters, only the voter, or the voter’s near relative or legal guardian, is permitted to hand-deliver an absentee ballot.2 For voters who need assistance returning their absentee ballot due to a disability, any person of that voter’s choice may return the absentee ballot for the voter, which could include a multipartisan assistance team (MAT).3 Outside of this disability exception, neither a MAT member nor any other person may take possession of an absentee ballot, unless they are the voter’s near relative or legal guardian. Intake of Absentee Ballots and Accompanying Photo ID Documentation As outlined in Numbered Memo 2021-03, trained county board staff shall review each ballot container-return envelope (ballot envelope) and accompanying photocopy of the voter’s photo 1 This numbered memo was updated on September 29, 2023, to include processes related to photo ID requirements for absentee-by-mail voting. 2 It is a class I felony for any person other than the voter’s near relative or legal guardian to take possession of an absentee ballot of another voter for delivery or for return to a county board of elections. G.S. § 163-226.3(a)(5); see also G.S. § 163-231(b)(1). 3 See Numbered Memo 2022-11. 2 ID or a completed Photo ID Exception Form (photo ID documentation) that are transmitted to the county board in an outer return envelope, to determine if there are any deficiencies. Typically, depending on the intake volume, staff review of the absentee ballot materials for acceptability occurs at a later time. But nothing prohibits staff from advising a person returning a ballot of any deficiencies that are noted at intake which would permit the voter to promptly correct those deficiencies. Although a hand-delivered absentee ballot is not required to be enclosed in an outer return envelope (which is used for mailing), the ballot must be sealed, either in the ballot envelope or the return envelope, for it to be accepted. If the voter is returning their ballot and it is unsealed, the voter should be instructed to seal the ballot envelope. If someone other than the voter is returning the ballot, that person should be advised that the county board may not accept an unsealed ballot, and the ballot must be sealed by the voter or in the voter’s presence.4 It is not recommended that county board staff serve as a witness for a voter while on duty since staff may need to make determinations about the ballot acceptance or other decisions pertaining to the absentee balloting process. However, staff who are not involved in the review of absentee ballot envelopes may be permitted to serve as a witness since the potential for a conflict would not exist and this would provide a service to a voter that may have no other way to meet the witness requirements. Copying a Voter’s Photo ID for a Voter Hand-Delivering an Absentee Ballot A voter, or any person permitted to return an absentee ballot as noted above, may request that staff make a photocopy of the voter’s photo ID to accompany the absentee ballot when hand- delivering an absentee ballot to the county board of elections office. Early voting sites are not required to have a copier available for this purpose, but a county may choose to do so if it has the available resources and staff. If the photo ID is a type of ID acceptable for voting purposes under 08 NCAC 17 .0101(a)(1), staff are required to make a photocopy of the voter’s photo ID at no cost to the voter, and to ensure that the photocopy is readable so it will be deemed acceptable when it is reviewed by the county board.5 Staff do not need to complete the assistant section of the ballot envelope when 4 G.S. § 163-231(a)(3). See Numbered Memo 2021-03 for further information on return deficiencies. 5 See 08 NCAC 17 .0109(e). Staff should consult the list of approved photo IDs that has been distributed by the State Board to determine whether the photo ID is an acceptable type. If the photo ID requested to be copied is not an acceptable type, then staff should inform the person of this fact and invite the person to provide for copying any other photo ID that is acceptable. 3 performing this task. After staff have made the photocopy of the photo ID, they should return the photo ID to the person delivering the absentee ballot, and then have that person place the photocopy of the photo ID in the clear sleeve used for this purpose on the ballot envelope, place the ballot envelope in the return envelope, and then seal the return envelope before handing it over to staff for intake. If the return envelope is already sealed, staff should open the return envelope so that the person can accomplish this task.6 To avoid confusion when staff is later reviewing the absentee ballot materials for deficiencies, the intake staff person should note on the return envelope that it was opened to allow photo ID documentation to be provided in person. Log Requirement An administrative rule requires county boards to keep a written log when any person returns an absentee ballot in person.7 The contents of the log are prescribed in the administrative rule, and county boards shall use the form provided by the State Board which complies with this rule. Intake staff shall note on the log the date that it was received. Because of the log requirement, an absentee ballot may not be left in an unattended drop box. Board Consideration of Delivery and Log Requirements Failure to comply with the logging requirement, or delivery of an absentee ballot by a person other than the voter, the voter’s near relative, the voter’s legal guardian, or a person of the voter’s choice when the voter needs assistance due to disability, is not sufficient evidence in and of itself to establish that the voter did not lawfully vote their ballot.8 A county board shall not disapprove 6 Intake staff do not conduct a review of whether the person hand-delivering the absentee ballot reasonably resembles the photo on the photo ID when the absentee ballot is hand-delivered at the county board office or an early voting site. The law provides specific requirements that a county board is to ensure are met by photo ID documentation accompanying an absentee-by-mail ballot, and reasonable resemblance of the voter to their photo ID is not one of them. See 08 NCAC 17 .0109. 7 08 NCAC 18 .0102 requires that, upon delivery, the person delivering the ballot shall provide the following information in writing: (1) Name of voter; (2) Name of person delivering ballot; (3) Relationship to voter; (4) Phone number (if available) and current address of person delivering ballot; (5) Date and time of delivery of ballot; and (6) Signature or mark of person delivering ballot certifying that the information provided is true and correct and that the person is the voter or the voter's near relative. 8 Id. Compare G.S. § 163-230.2(3), which states that an absentee request form returned to the county board by someone other than an unauthorized person is invalid. 4 an absentee ballot solely because it was delivered by someone who was not authorized to possess the ballot. The county board may, however, consider the delivery of a ballot in accordance with the rule, 08 NCAC 18 .0102, in conjunction with other evidence in determining whether the ballot is valid and should be counted. Return at a County Board Office A voter may return their absentee ballot to the county board of elections office any time the office is open. A county board must ensure its office is staffed during regular business hours to allow for return of absentee ballots until the end of Election Day. . You are not required to accept absentee ballots outside of regular business hours. Similar to procedures at the close of polls on Election Day, if an individual is in line at the time your office closes or at the absentee ballot return deadline (5 p.m. on Election Day), a county board shall accept receipt of the ballot. If your site has a mail drop or unattended drop box used for other purposes, you must affix a sign stating that voters may not place their ballots in the drop box. However, a county board may not disapprove a ballot solely because it is placed in a drop box.9 In determining the setup of your office for in-person return of absentee ballots, you should consider and plan for the following: • Ensure adequate parking, especially if your county board office will be used as a one-stop site • Provide signage directing voters to the location to return their absentee ballot • Ensure the security of absentee ballots and the privacy of the photo ID documentation that accompanies the absentee ballot. Use a locked or securable container for returned absentee ballots that cannot be readily removed by an unauthorized person. • If your set-up allows the return of ballots outside, plan for the possibility of severe weather. You may need a tent or other covering. Have a plan for how crowd control will occur without the physical barriers of an office and the security of your staff and the balloting materials. For safety reasons, it is not recommended you keep an outside return location open after dark or during inclement weather. Return at an Early Voting Site Location to Return Absentee Ballots Each early voting site shall have at least one designated, staffed station for the return of absentee ballots. Return of absentee ballots shall occur at that station. The station may be set up exclusively for absentee ballot returns or may provide other services, such as a help desk, 9 Id. 5 provided the absentee ballots can be accounted for and secured separately from other ballots or processes. Similar to accepting absentee ballots at the county board of elections office, you should consider and plan for the following with the setup of an early voting location for in- person return of absentee ballots: • Have a plan for how crowd control will occur and how voters will be directed to the appropriate location for in-person return of absentee ballots • Provide signage directing voters • Ensure adequate parking and sufficient space for long lines • If your set-up allows the return of ballots outside, plan for the possibility of severe weather. You may need a tent or other covering. Have a plan for how crowd control will occur without the physical barriers of an office and the security of your staff and the balloting materials. For safety reasons, ensure that there is adequate lighting as voting hours will continue past dark. Because absentee ballots must be returned to a designated station, absentee ballots should not be returned in the curbside area. Procedures Absentee ballots that are hand-delivered must be placed in a secured container upon receipt, similar to how provisional ballots are securely stored at voting sites. Absentee-by-mail ballots delivered to an early voting site must be stored separately from all other ballots in a container designated only for absentee-by-mail ballots. The secure storage of absentee-by-mail ballots is also important because these ballots will be accompanied by photo ID documentation, which could contain confidential information. County boards must also conduct regular reconciliation practices between the log and the absentee ballots. County boards are not required by the State to log returned ballots into SOSA; however, a county board may require their early voting site staff to complete SOSA logging. If a voter brings in an absentee ballot and does not want to vote it, the ballot should be placed in the spoiled-ballot bag in such a way that will distinguish it from ballots issued to the voting site when later performing reconciliation. Voters who call the county board office and do not want to vote their absentee ballot should be encouraged to discard the ballot at home. Return at an Election Day Site An absentee ballot may not be returned at an Election Day polling place. If a voter appears in person with their ballot at a polling place on Election Day, they shall be instructed that they may (1) take their ballot to the county board office by 5 p.m. or mail it so it is postmarked that day and received by the deadline; or (2) have the absentee ballot spoiled and vote in-person at their polling place. 6 If someone other than the voter appears with the ballot, they shall be instructed to take it to the county board office or mail the ballot so it is postmarked the same day. If the person returning the ballot chooses to mail the ballot, they should be encouraged to take it to a post office to ensure the return envelope is postmarked. Depositing the ballot in a USPS mail box on Election Day may result in the return envelope not being postmarked by Election Day and therefore not being counted. 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, and September 18, 2023) This numbered memo addresses the requirements and procedures for conducting absentee ballot meetings, as set forth in state law. It also addresses questions that are commonly asked in connection with absentee meetings or the review and custody of absentee ballots. 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 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 the fifth Tuesday before Election Day. 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. 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 1 G.S. §163-230.1(f). 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.) 2 received any absentee container-return envelopes since the last absentee meeting.3 If you anticipate a high volume of absentee ballots returned, it is 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. The notice should be sent 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 a similar election in the past, 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 the November 2024 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 scheduled 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. 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. 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 one or more public meetings each Tuesday at 5:00 p.m. for the purpose of action on applications for absentee ballots.” (Emphasis added.) 4 G.S. § 163-31(d): “A majority of the members shall constitute a quorum for the transaction of board business.” 3 A majority of board members present at a meeting must vote for an action for it to pass. Public Attendance Absentee board meetings are public meetings and are subject to North Carolina’s open meetings laws. For absentee meetings, it is recommended that the county board locate a meeting room large enough to accommodate members of the public. 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 should consider broadcasting the absentee board meetings via video feed using a service such as WebEx or Microsoft Teams. The public in attendance 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 a photocopy of a voter’s photo ID included with their ballot or a ballot identifier number (CIV, MIL, etc.), either in person or on a video feed. 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 applications 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. The absentee request register is confidential and not 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. 5 G.S. § 163-230.1(f): “At these meetings, the county board of elections shall pass upon applications for absentee ballots. . . . 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.” 6 G.S. § 163-228(c). 4 Absentee request data is no longer confidential when the ballot is returned to the county board of elections office.7 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. If, however, a ballot has been delivered but there is a deficiency requiring the ballot to be spoiled and reissued, that voter’s name cannot be read aloud or otherwise disclosed, because that voter’s ballot is still outstanding. 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.”8 This does not apply to a ballot that has been received by the county board and is in a pending cure status, because at that point the ballot has been returned and it is only the cure certification for the voter’s signature deficiency or the voter’s photo ID cure documentation that must be submitted for the absentee application to be complete. Confidentiality of Copies of Photo ID and Information on a Photo ID Exception Form The photocopy of a voter’s photo ID is confidential and not a public record subject to disclosure.9 This means that the photocopy of the photo ID cannot be redacted and disclosed, because the entire photocopy is a confidential record under the law. The public is not permitted to view or receive copies of a voter’s copy of their photo ID submitted with their absentee ballot. A Photo ID Exception Form is a public record. However, the Form is likely to contain confidential information that must be redacted, when submitted with an absentee ballot. The most common reason for submitting a Photo ID Exception Form with an absentee ballot is likely to be that the voter is unable to make a photocopy of their ID to include with their ballot, which is a “reasonable impediment” specifically identified in the law.10 When choosing this option, the voter is required to write on the Form their North Carolina driver’s license number, DMV ID 7 See G.S. § 163-233(b), which makes the list of absentee applications received by the county board a public record. 8 G.S. § 163-237(d6). 9 G.S. §§ 163-82.10(a1) and 163-233(a). 10 G.S. § 163-230.1(g)(2). 5 number, or last 4 digits of their social security number.11 The public is not permitted to view this confidential information during an absentee meeting.12 Procedures for Review of Absentee Ballot Materials At each absentee board meeting, the county board of elections will review each absentee ballot container-return envelope (ballot envelope) to determine whether it has been properly executed and is accompanied by either a photocopy of the voter’s photo ID or a completed Photo ID Exception Form (photo ID documentation), and if so, to approve the application and ballot.13 Given the volume of absentee ballots the county board is required to review and act upon at each meeting, certain preparatory work should be performed by staff in advance, and the board should consider ways to streamline the process. Delegation of Preparatory Work The county board of elections has the authority to delegate to its director “so much of the administrative 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.”14 However, the board may not delegate to a director or other staff any of its quasi-judicial or policymaking duties and authority. Based on the volume of absentee ballots a county board anticipates receiving, the county board should determine which preparatory tasks staff can complete prior to absentee board meetings. A delegation 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 ballot envelopes and return envelopes for deficiencies and contacting voters as required by Numbered Memo 2021-03. 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. 11 G.S. § 163-230.1(g)(2). 12 Similarly, in the rare situation when a voter writes confidential information in the “Other” line on the Photo ID Exception Form, the county board would need to redact that information too. 13 G.S. § 163-230.1(e), (f), and (f1). 14 G.S. § 163-35(d). 6 • Sorting ballot envelopes with accompanying photo ID documentation into categories for the board to review and take action (e.g., approve or reject). • Verifying the list of ballot envelopes against the absentee pollbook. • Performing ballot duplication with a bipartisan team. A delegation of administrative duties to the director or staff does not need to include a preliminary review of photo ID documentation for deficiencies because this has already been tasked to staff by an administrative rule adopted by the State Board.15 Staff Review of Envelopes Upon receipt of an absentee ballot at the county board office, staff must review the materials accompanying the ballot—the photo ID documentation and the ballot envelope/application—to ensure there are no deficiencies. First, staff must confirm that the voter has included the necessary photo ID documentation and, if so, review that documentation to ensure that it meets the requirements of the administrative code provisions governing the approval of photo ID for absentee ballots, 08 NCAC 17 .0109(a) & (b). If the voter has included a photocopy of their photo ID, then staff should make an initial determination that: • The ID is a type of ID that is acceptable for voting purposes; • The ID meets any applicable expiration requirements; • The name on the ID can be read; • The photograph on the ID depicts a person (not a shadow or outline of a person); and • The name on the ID is the same as or substantially equivalent to the voter’s name in their voter record. If the voter has included a Photo ID Exception Form, then staff should make an initial determination that the voter has: • printed their name; • checked the box for at least one claimed exception from the photo ID requirements; and • signed the Form.16 15 08 NCAC 17 .0109(b). 16 If a voter is unable to sign the Photo ID Exception Form due to a disability, the person of the voter’s choice who is assisting them can sign the Form on the voter’s behalf and must complete the assistant certification on the envelope. See Numbered Memo 2022-11, p. 3 (Court Order Regarding Assistance for Absentee Voters with Disabilities). 7 If any deficiency exists with either a photocopy of the voter’s photo ID or a voter’s Photo ID Exception Form, staff must follow the photo ID cure process in 08 NCAC 17 .0109(b) and as described in Numbered Memo 2021-03. Second, staff must inspect the absentee ballot envelope to make an initial determination as to whether the envelope was properly executed, and if there is a deficiency with the envelope, whether that deficiency can be cured by the voter. If a voter signature deficiency exists, staff must follow the cure process in Numbered Memo 2021-03. Third, staff should perform an initial sort of ballot envelopes into categories upon initial review and to present those recommendations to the board at each absentee board meeting. Those categories may include designations for recommended approval, recommended disapproval, envelopes awaiting a cure certification or photo ID cure documentation, 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. Board Review of Envelopes 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 and photo ID documentation 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 or the photo ID documentation meets all legal requirements. It is also permissible for 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 present at the meeting must approve or disapprove the ballots. A decision as to whether an envelope is properly executed and whether the photo ID documentation meets all requirements must be decided by a vote of the board as a whole and not by individual members.17 A board’s decision to disapprove a ballot based on a finding that a voter’s Photo ID 17 G.S. § 163-230.1(f) (“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.”); see also 08 NCAC 17 .0109(c) (“Final Review by County Board”). 8 Exception Form is false can only be made by unanimous decision of all members of the board participating in the vote, and that decision must be in writing.18 A decision to disapprove a ballot for any other reason, or to approve the ballot, is by majority vote. Review of Photo ID Exception Forms The board must also individually review all completed Photo ID Exception Forms where staff has indicated that available information may lead the board to conclude that the Form is false. When staff has given this indication to the board, or if a board member raises a question as to the falsity of the Form after staff review, the voter must be given notice and an opportunity to be heard on the information that will be considered by the board, unless one or more board members disagree that there are grounds to believe the affidavit is false (in which case there is no need to notify the voter, since a finding of falsity on the Form must be unanimous).19 If the board is considering a finding of falsity, the board’s review of the envelope should remain in a pending status until the absentee meeting at which the voter has the opportunity to be heard, and the board can only make a final decision on the approval or disapproval of the envelope after the voter has that opportunity to be heard regarding their Form. Numbered Memo 2023-03 contains guidance as to what may be considered by a county board when reviewing a voter’s Photo ID Exception Form. Review of Photo ID Photocopies If the board reviews a photocopy of a voter’s photo ID that staff have identified as being acceptable, but unanimously determines that the photocopy of ID does not meet all legal requirements, staff are required to notify the voter.20 If this determination is made at an absentee meeting prior to the county canvass, the board’s review of the envelope should remain in a pending status until the county canvass, because in this instance the voter can still submit a new photocopy of their photo ID, or a Photo ID Exception Form if they are unable to submit a photocopy of their photo ID. Review of Deficient Photo ID Documentation that Is Uncured If staff has indicated that a voter’s photocopy of their photo ID or Photo ID Exception Form is deficient, and the photo ID documentation remains uncured, the board must reserve its final decision on the approval of the envelope until the county canvass and, when doing so, must individually review the photo ID documentation that has not been cured.21 An uncured 18 08 NCAC 17 .0109(c)(2). 19 08 NCAC 17 .0109(c). 20 08 NCAC 17 .0109(c)(1). 21 08 NCAC 17 .0109(c)(3). 9 deficiency with the photo ID documentation does not prevent the board from making a preliminary determination on the envelope when staff has indicated further guidance is needed as to a potential deficiency, so that any envelope-related deficiencies can also be identified and the voter notified. Formalizing Approval of Envelopes After absentee envelopes and accompanying photo ID documentation 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 envelopes 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 applications. Scanning Absentee Ballots at Absentee Board Meetings It is important to distinguish between scanning and tabulating approved ballots, because the law permits each task to occur at different times. “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 involves closing the polls on a tabulator and printing tabulated results from ballots that have been previously scanned. A county board of elections may, by majority vote, decide to scan absentee ballots during each absentee meeting.22 If a county board anticipates a large volume of absentee ballots, it is strongly recommended that the board 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.”23 Staff may enter the approved ballots into the tabulator, but each board member present is responsible for and must observe and supervise the opening of the envelopes and scanning of the 22 G.S. § 163-234(3). 23 G.S. § 163-234(9). 10 ballots.24 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 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 if scanning occurs before Election Day, ballots must be scanned at the same meeting during which they were approved.25 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. The county board 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.26 County boards may begin counting UOCAVA ballots beginning at 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 the 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. A copy of the resolutions shall be published 24 G.S. § 163-234(5). 25 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 pursuant 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). 26 G.S. § 163-234(2). 11 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 addition 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. No absentee ballot counting results may 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 the voter’s selections into the reporting software. County boards may adopt a policy to authorize a bipartisan team of staff members or poll workers 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 compares 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 duplication 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 of the voter. 12 • 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 absentee 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. 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, because state law vests members of the county board with the duty to approve absentee ballots and the board’s decision is final, the county board should not permit public comment while absentee envelopes and the accompanying photo ID documentation 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 absentee envelopes and photo ID documentation, to avoid disruption of proceedings which must be carefully managed, the potential for outside influence of the board’s decisions, and the potential for nonuniform review of ballots. 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.27 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 ballots. 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, photo ID documentation, and ballots. To do that requires careful control of every document in the room. It 27 G.S. § 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.” 13 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, photo ID documentation, and ballots must not be allowed to be removed from assigned areas. A voter’s photo ID documentation must also be retained with the voter’s corresponding envelope. 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 envelopes. Ballot return envelopes are public records under North Carolina’s Public Records Act, with exceptions for voter signatures and CIV number.28 Public records requests should not be fulfilled during a board meeting, but must be fulfilled as promptly as possible. Photo ID photocopies and Photo ID Exception Forms are technically separate documents from absentee ballot envelopes, so each are addressed separately below, even though these are retained with the envelopes. Photo ID photocopies are confidential and should never be provided, and Photo ID Exception Forms may need to be redacted due to confidential information included on the forms.29 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 assistant 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 removable tape or a cardboard 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 a PDF editing program like Adobe. Viewing Envelopes Unredacted envelopes may be viewed by the public in your office, though no copy, photo, or tracing may be made. A county board must ensure that the requestor is monitored while 28 G.S. §§ 132-1.2(4), 163-82.10(a), 163-165.1(e). See also Numbered Memo 2016-25 and Numbered Memo 2022-01. 29 G.S. § 163-82.10(a1), 163-233(a). 14 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. Photo ID Documentation Photo ID documentation must be retained with the envelope because it is reviewed as part of the absentee application. For this reason, the photocopy of photo ID or Photo ID Exception Form must be retained for as long as the county retains that voter’s corresponding absentee envelope.30 As noted above, the photocopy of a voter’s photo ID is not a public record, and therefore a county board should not provide a copy of the photocopy of photo ID or allow viewing of the photocopy of photo ID in response to a public records request. The photocopy of photo ID must be retained with the voter’s corresponding envelope through at least the end of canvass and the certification of all elections in the county. After that time, for efficiency in responding to public records requests and to reduce the likelihood of a mistaken disclosure, a county board can separate the photocopy of photo ID from the corresponding envelopes and securely store them in a separate container—so long as the photocopies of photo ID are still stored in the same secure location as the envelopes. Unlike the photocopy of photo ID, a Photo ID Exception Form is a public record. If a public records request seeks copies or viewing of Photo ID Exception Forms, the county board will need to redact any confidential information from the Form before allowing the requestor to view the form or receive a copy. Finally, if allowing a requestor to review an envelope in person and the photo ID documentation has not been separated from the envelope, a county board should first separate the photocopies of photo ID from their respective envelopes and redact confidential information on Photo ID Exception Forms before allowing the public to review the envelopes. 30 This period is at least 22 months for primaries and elections involving a contest for federal office, 52 U.S.C. § 20701, and at least one year for primaries and elections not involving a contest for federal office, G.S. § 163-233(c). 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 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 P.O. Box 27255 Raleigh, NC 27611 (866) 522-4723 www.ncsbe.gov Numbered Memo 2023-03 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director1 RE: Photo ID and In-Person Voting DATE: September 14, 2023 (updated February 23, 2024)2 This numbered memo provides guidance related to photo identification (photo ID) requirements for in-person voting. The memo’s instructions for the review of Photo ID Exception Forms also apply to absentee ballots. General Overview Election officials, staff, and county board of elections members are encouraged to carefully review the two laws that primarily govern the in-person photo ID requirements and processes: N.C.G.S. § 163-166.16 and 08 NCAC 17 .0101. As a general overview of the in-person photo ID process, when a voter enters the voting place to vote in person during early voting or on Election Day, the voter will be asked to show a photo ID during the check-in process.3 The photo ID shown by the voter must meet certain legal requirements:4 (1) the ID must be an acceptable type of photo ID; (2) the ID must meet the expiration requirements, if applicable; (3) the photo on the ID must reasonably resemble the person showing the ID; and (4) the name on the ID must be the same as or substantially equivalent to the voter’s name in their registration record. 1 This memo is issued under the authority delegated by the State Board to the executive director pursuant to G.S. § 163-22(p). 2 This memo was updated on February 23, 2024, to provide further guidance on photo ID implementation following the municipal elections in 2023. 3 N.C.G.S. § 163-166.7(a). 2 If a voter’s photo ID meets these requirements, then the voter proceeds with the check-in process and will vote with a regular ballot, unless there is some other reason under the election laws for them to vote with a provisional ballot. If the check-in official believes that a voter’s photo ID does not meet these requirements, then the check-in official will ask the voter to provide a different photo ID. If the voter cannot do so, then the check-in official will initiate a photo ID challenge, which is then immediately heard by the judges of election at the voting place. If at least one judge determines the photo ID meets the legal requirements, then the voter proceeds with the check-in process and will vote with a regular ballot unless there is some other reason under the election laws for them to vote with a provisional ballot. If the judges unanimously agree the voter’s photo ID does not meet the legal requirements, the voter will still be permitted to vote and will vote with a provisional ballot, as explained below. Voters who do not present acceptable photo ID may choose to leave the voting enclosure to retrieve an acceptable photo ID and present to vote again, as long as they have not yet received a ballot.5 Some voters may prefer this option, especially during the early voting period, when it is easier for the voter to obtain an acceptable photo ID in time to vote with that ID, including by obtaining a free voter photo ID from the county board. Voting Without Acceptable Photo ID All voters are allowed to vote with or without a photo ID.6 There are two options for an in- person voter who does not present acceptable photo ID. Every voter without an acceptable photo ID must be offered both options. (1) The voter may complete a Photo ID Exception Form, claiming an exception to the photo ID requirement, and then vote a provisional ballot. A county board is required to approve and count the provisional ballot unless the county board unanimously finds that the form was falsely completed and puts that finding in a written decision. Before the county board makes a final finding of falsity, it must give the voter notice and an opportunity to address the county board on the matter. (2) The voter may vote a provisional ballot and then bring an acceptable photo ID to the county board office before 5:00 P.M. on the day before county canvass. When a voter 5 See 08 NCAC 10B .0104 (voter not permitted to return to the voting enclosure once they receive their ballot). 6 N.C.G.S. § 163-166.16(c)–(d); N.C. Sess. Laws 2018-144, sec. 1.5(a)(10). 3 chooses this option, their photo ID will be evaluated at the county board office in the same manner as it would have been evaluated at the voting place. Frequently Asked Questions About Photo ID and In-Person Voting Acceptable Forms of Photo ID The types of photo ID that are acceptable for voting purposes are listed in N.C.G.S. § 163-166.16(a) and 08 NCAC 17 .0101(a)(1). 1 Is a photocopy of a voter’s photo ID, or a picture of their photo ID stored electronically on a mobile device, an acceptable form of photo ID for in-person voting? No. Under N.C.G.S. § 163-166.16, a voter presenting to vote in person must “produce” one of the listed “forms of identification.” An image of a photo ID, either as a photocopy or a photo on a mobile device, is not one of the permitted forms of photo ID when voting in person. 2 Are learner’s permits and provisional licenses acceptable forms of Photo ID? What about a paper temporary driving certificate given to someone while they wait for the driver’s license to arrive in the mail? A provisional license is a license, and therefore is acceptable photo ID, subject to the expiration requirements. Additionally, a learner’s permit falls within the definition of a “license” in N.C.G.S. § 20-4.01(17), and is therefore a “North Carolina drivers license” under the photo ID law for voting,7 subject to the expiration requirements. A “temporary driving certificate,” however, is not permitted to be used for identification purposes under state law. Therefore, it cannot be used as an acceptable form of photo ID for voting purposes.8 3 Is a suspended or revoked driver’s license an acceptable Photo ID? No. If an election official becomes aware that a voter is presenting a suspended or revoked license, the official should inform the voter that such an ID is no longer “valid,” as required by 7 N.C.G.S. § 163-166.16(a). 8 N.C.G.S. § 20-7(f)(5) (“The temporary driving certificate shall be valid for driving purposes and shall not be valid for identification purposes, except when conducting business with the Division and not otherwise prohibited by federal law.”). 4 the photo ID law for voting.9 In practice, however, election officials are typically not going to know whether a person’s license has been suspended or revoked, since that information does not appear on the face of an ID, and election officials should not do independent research to determine the license status. Without having a reason to believe a voter’s license has been revoked or suspended, election officials must assume that the license remains valid. 4 When a student or government-employee ID card is approved by the State Board, does that mean that only those ID cards that are identical to the one submitted with the institution’s application for approval can be used for voting? No. Once an institution’s ID has been approved, that institution’s ID is acceptable, including ID cards that were issued before the ID was approved, even if those previously issued ID cards differ from the latest version. Both N.C.G.S. §§ 163-166.17 and 163-166.18 permit the State Board to approve “the use of . . . cards issued by” an institution if “cards issued during the approval period” comply with the requirements outlined in the statute, including the requirement that the card contain an expiration date. In short, the legislature’s intent was to permit an institution’s ID card to be used for voting if that institution commits to issuing compliant cards during the approval period. The law is not meant to permit only those cards issued during the approval period to be accepted for voting, thus requiring an institution to replace the already- issued ID cards in circulation, in order for their students or employees to be able to use their IDs to vote. Instead, once an institution’s ID meets the requirement with respect to the IDs that are to be issued during the approval period, the institution’s ID, including cards already issued, are acceptable. However, to the extent the institution has gained State Board approval of only a special-issued ID (i.e., a special “voter ID” card, not the regular ID card), only that ID, and any past version of that special-issued ID, would be acceptable for voting purposes.10 5 If a voter believes their photo ID does not reflect their current appearance, should they obtain a new ID with a new photo on the ID? The voter is not required to obtain a new photo ID when their appearance changes. Importantly, the voter’s appearance at the voting place is not required to be a perfect match to the photo on 9 N.C.G.S. § 163-166.16(a)(1). 10 For example, there was one such approved student or government employee ID card that fell into this situation for the 2023 municipal elections: Duke University’s student voter ID card. 5 their ID. Election officials evaluating the photo on the ID must take into account the many reasons why a voter’s appearance may have changed.11 Even with these considerations in mind, a voter concerned about a comparison of their photo ID to their current appearance could choose to obtain a new photo ID, if permitted by the agency that issued their ID. The voter could also obtain and use a different type of acceptable photo ID from the one they already possess. For example, a voter with a driver license could obtain a Voter Photo ID Card from their county board of elections and present either ID at the voting place when voting. 6 Will a photo ID used for voting also satisfy a requirement for some voters to show “HAVA ID”? Can a person’s photo ID for voting also be used to prove residency for same-day registration at an early voting site? In each situation, it depends on the ID provided. Most voters will use an unexpired driver’s license as their photo ID when voting, and this would satisfy both HAVA and the photo ID requirements. But sometimes an acceptable photo ID for voting would not satisfy HAVA ID, due to the ID’s expiration. A “HAVA ID” that is required to be presented by some voters, pursuant to state law and the Help America Vote Act of 2002 (HAVA), must be “current.”12 Under our state’s photo ID law for voting, however, some IDs that can be used for photo ID purposes do not have to be current. Instead, some photo IDs can be expired for up to a year; or if the voter is over 65, then the ID can be used for photo ID purposes if it was unexpired when the voter turned 65. And some types of photo IDs can always be expired, such as military and veteran ID cards.13 So while it is unlikely that a voter’s photo ID will not be acceptable as HAVA ID, it is possible, where the ID is expired. A same-day registrant who presents an unexpired driver’s license with their current address can use that ID for both same-day registration proof of residency and the photo ID requirement for voting. But a photo ID does not need to have the voter’s current address. For example, a voter can show a valid driver’s license that includes the voter’s former address, and that would be acceptable for photo ID purposes. But it would not be acceptable to prove current residence for same-day registration. Additionally, many documents used to establish residency for same-day registration are not acceptable photo IDs for voting—including utility bills, bank statements, 11 08 NCAC 17 .0101(a)(2). 12 N.C.G.S. § 163-166.12(a)(1); 52 U.S.C. § 21083(b)(2)(A)(i)(I). 13 N.C.G.S. § 163-166.16(a). 6 paychecks, and government documents that contain no photo. See Numbered Memo 2023-05 (Same-Day Registration) for further guidance on this point. So it is possible that an acceptable same-day registration document will not satisfy the photo ID requirement, and vice versa. Evaluation of an In-Person Voter’s Photo ID The process for evaluating a voter’s photo ID when they present to vote at an early voting site or on Election Day is guided by N.C.G.S. § 163-166.16 and 08 NCAC 17 .0101. 7 What can an election official consider when deciding whether the person showing a photo ID bears a reasonable resemblance to the photo on the ID? The election official is required to determine only whether the photo on the ID bears a “reasonable resemblance” to the person presenting the photo ID.14 By law, the election official making this determination must consider all the circumstances, and must bear in mind that there are many reasons that a person’s appearance could change. The election official must keep in mind the purpose of the photo identification requirement, which is “to confirm the person presenting to vote is the registered voter on the voter registration records.”15 In other words, the election official is trying to determine that the ID belongs to the person presenting to vote, by comparing faces. Election officials must take into account that a voter’s appearance may have changed since their ID was issued, and this can be due to various reasons, including but not limited to changes in: • Weight; • Hair features and styling, including changes in length, color, hairline, or use of a wig or other hairpiece; • Facial hair; • Complexion or skin tone; • Cosmetics, including piercings or tattooing; and • Apparel, including the presence or absence of eyeglasses or contact lenses.16 14 N.C.G.S. § 163-166.16(b). 15 08 NCAC 17 .0101(a)(2). 16 Election officials are not allowed to require a voter to remove apparel for the purposes of determining reasonable resemblance. If the face of the person presenting to vote is covered enough that the election official cannot determine reasonable resemblance, then the election official should inform the voter that 7 Election officials must also take into account other factors that can affect a voter’s appearance in comparison to the photo on the photo ID, such as the effects of aging and the effects of medical conditions or medical treatment. A person’s changed appearance, no matter the reason for that change, cannot prevent a voter from voting. If the election official can determine it is the same person when comparing the person’s face in the photo to the face of the person standing before them, then the election official must permit the voter to proceed and vote a regular ballot. 8 What can an election official consider when comparing the name on the photo ID with the name in the registration records? The election official reviewing the photo ID is determining whether the name on the photo ID is “the same as or substantially equivalent to” the voter’s name in the registration records (i.e., the pollbook).17 The name review must be based on all the circumstances, and the election official must construe all evidence, along with any explanation or documentation voluntarily offered by the person presenting to vote, in the light most favorable to that voter. The election official shall consider the name on the ID to be substantially equivalent to the name in the pollbook if any differences in the name are subject to a reasonable explanation. Reasonable explanations for name differences include, but are not limited to, one or more of the following: • Omission or inclusion of one or more parts of the name (for example, Mary Beth Smith versus Beth Smith, or Patrick Todd Jackson, Jr. versus Patrick Todd Jackson, or Maria Guzman-Santana versus Maria Guzman); • Use of a variation or nickname rather than a formal name (for example, Bill versus William, or Sue versus Susanne); • Use of an initial in place of one or more parts of a given name (for example, A.B. Sanchez versus Aaron B. Sanchez); • Use of a former name, including maiden names (for example, Emily Jones versus Emily Gibson); the face covering is preventing the official from determining that the photo on the identification is that of the voter and then offer the voter the option to briefly remove the face covering. If the voter chooses to not remove the face covering, then the election official must offer the voter the two options to vote by provisional ballot. 08 NCAC 17 .0101(b). 17 08 NCAC 17 .0101(a)(3). 8 • Variation that includes or omits a hyphenation or hyphen (for example, Chantell D. Jacobson-Smith versus Chantell D. Jacobson or Chantell D. Jacobson Smith); • Variation of accents (for example, José Muñoz versus Jose Munoz); • Variation of an apostrophe (for example, Andrea D’Antonio versus Andrea Dantonio); • Ordering of names (for example, Maria Eva Garcia Lopez versus Maria E. Lopez- Garcia); or • Variation in spelling or typographical errors (for example, Dennis McCarthy versus Denis McCarthy, or Aarav Robertson versus Aarav Robertsson).18 The address on the photo ID does not need to match the address of the voter in the pollbook.19 The photo ID law does not require such a strict document match. This takes into account the fact that many voters will move and update their voter registration but not their driver’s license (for example, non-driving elderly voters). Also, many acceptable forms of photo ID have no address at all, making it impossible to do an address comparison for voters using such IDs. All voters must be evaluated using the same criteria. 9 Can an election official take into account other information about the person presenting to vote when making the reasonable resemblance determination or name determination? Election officials should not factor in outside information to decide that the voter does not reasonably resemble the person in the photo on the ID or that their name is not the same as or substantially equivalent to their name in their registration record. Instead, a determination that the photo ID does not meet the photo or name requirements must be based solely on a review of the photo and name on the ID. On the other hand, if an election official is unable to make a determination that the photo ID meets the photo and name requirements after reviewing the ID, the official can turn to other evidence to confirm the photo ID is the person’s ID and that the name on the ID is that of a registered voter. For example, if a voter presents to vote at the voting place and they reasonably resemble the photo on the ID, the fact that their gender presentation does not match the gender or sex listed on their photo ID or voter registration record cannot be used to reject the photo ID. A determination of no resemblance, under the law, must be based on the comparison of the voter to the photo on 18 08 NCAC 17 .0101(a)(3). 19 N.C.G.S. § 163-166.16(g). 9 the ID, bearing in mind the many reasons a person’s appearance could change, and should not be influenced by extraneous information.20 On the other hand, if a voter presents to vote at the voting place and part of their name on their photo ID is not readable due to wear and tear on the ID, then it would be permissible for the election official to use other evidence voluntarily provided by the voter, such as a credit card, library card, or other documentation they may have with them, to confirm the voter’s name and match it with their registration record. Such documentation cannot replace the need to present valid photo ID, but it could support the determination of a match between the photo ID and the voter record. 10 Can a voter be challenged by someone other than an election official for photo ID-related reasons? Yes, but only for failure to present a valid photo ID, and not for resemblance, name similarity, or ID exception reasons. On the day of a primary or election, or during early voting, any other registered voter of the county may challenge a voter on the grounds that the “registered voter does not present photo identification in accordance with G.S. 163-166.16” when that voter presents to vote in person.21 Accordingly, a defect in the manner that a voter presents ID can be challenged. For example, if an election official permits a voter to check in and receive a regular ballot without the voter presenting photo ID at all, that voter may be challenged by another registered voter. Likewise, if a voter offers an ID that is plainly not an acceptable form of photo ID—a retail store membership card, for example—an observer could challenge the voter.22 In the event such a challenge is made, the challenger is not permitted to handle or review the voter’s photo ID. That duty is reserved for the judges of election hearing the challenge. Apart from issues concerning the act of presenting the ID, however, challenges to the photo ID process by other voters are not permitted. By law, election officials at the voting place (i.e., check-in officials) are the persons tasked with entering a challenge when they determine a 20 N.C.G.S. § 163-166.16(b); 08 NCAC 17 .0101(a)(2). 21 N.C.G.S. § 163-87(5). 22 While this type of challenge is theoretically possible, election officials must be careful not to permit persons who are not election officials to be so close to the voter in the voting enclosure that they are able to perceive confidential details on the voter’s photo ID—for example, date of birth, driver’s license number, or passport number. See N.C.G.S. § 132-1.10(b)(5); N.C.G.S. § 163-82.10B. 10 voter’s photo ID, upon official review, does not meet the legal requirements of a reasonable resemblance or name similarity.23 Additionally, a voter who informs the election officials that they will vote a provisional ballot and later bring their photo ID to the county board office cannot be challenged by a registered voter for a failure to present a photo ID. Such a voter is expressly permitted by law to vote a provisional ballot without showing ID at the voting site, and is therefore not subject to the challenge under N.C.G.S. § 163-87(5). Finally, a challenge cannot be made by any person, election official or otherwise, based on the voter completing a Photo ID Exception Form. In that instance, the voter is claiming an exception from the photo ID requirements and therefore is not required to “present” a photo ID under the law. The decision on the approval of a Photo ID Exception Form is reserved for the county board alone. 11 How should election officials proceed with a hearing when the check-in official challenges a voter’s photo ID for not meeting the photo or name requirements? A photo ID challenge hearing is required when the check-in official determines that the photo on the voter’s photo ID does not reasonably resemble the person showing the ID, that the name on the photo ID is not the same as or substantially equivalent to the voter’s name in their registration record, or both requirements are not met.24 A photo ID challenge proceeds somewhat differently than a challenge entered by a voter pursuant to N.C.G.S. § 163-87. For a photo ID challenge, the check-in official must use the Help Station Referral Form, rather than the challenge form, to note their reason for why the photo ID does not meet these requirements, and then immediately notify the judges of election so that they may conduct the challenge hearing as promptly as possible. When conducting the challenge hearing, the judges of election generally follow the hearing procedures in N.C.G.S. § 163-88. After explaining the photo ID requirements for voting in- person to the voter, the judges of election must then examine the photo ID presented by the voter and apply the same standards as the check-in official for reasonable resemblance and name similarity. The judges must then record their final decision in writing on the Help Station Referral Form. The judges do not utilize the oath process detailed in N.C.G.S. § 163-88 for other voter challenges because under N.C.G.S. § 163-166.16(b), the judges of election conducting a photo ID challenge are only tasked with the limited determination of whether “the photo identification presented does not bear a reasonable resemblance to that voter.” 23 N.C.G.S. § 163-166.16(b); 08 NCAC 17 .0101(d)(3). 24 N.C.G.S. § 163-166.16(b); 08 NCAC 17 .0101(d)(3). 11 If at least one judge determines the photo ID meets the legal requirements, then the voter returns to the check-in station, proceeds with the check-in process, and will vote with a regular ballot, unless there is some other reason under the law for them to vote with a provisional ballot. If the judges unanimously agree the voter’s photo ID does not meet the legal requirements, the voter will still be permitted to vote. Rather than vote a challenged ballot pursuant to N.C.G.S. § 163-88.1, the voter will be offered the two options to vote with a provisional ballot in 08 NCAC 17 .0101(e). As an example, if the voter has another acceptable photo ID that is not with them at the voting place, then that voter can choose to vote a provisional ballot and bring that other photo ID to the county board office by the day before canvass, or that voter could choose to complete a Photo ID Exception Form and assert an exception to the photo ID requirement stating why they are unable to present an acceptable photo ID when presenting to vote. 12 Who is responsible for reviewing a voter’s photo ID when they bring it to the county board office after voting a provisional ballot with the intent to provide their photo ID later? A voter who brings their photo ID to the county board of elections office will have their ID reviewed for compliance with all legal requirements, just as if they had shown the ID when voting in-person at the voting site.25 Each county director is strongly encouraged to designate at least one staff member to perform this function during the period of early voting and canvass, and to have that person trained in the same manner as check-in officials for the purposes of reviewing a photo ID. The county director can perform this function as well, if needed. 13 Can a voter obtain a photo ID after they have voted provisionally in person, bring the newly issued photo ID to the county board office before the deadline, and still have their ballot counted? Yes. If the photo ID meets all the criteria to be accepted, and the voter presents the ID to the county board by 5:00 P.M. on the day before canvass, the law requires the county board to count that provisional ballot.26 This applies to any acceptable type of photo ID, including a Voter Photo ID Card issued by a county board of elections. The law does not state that a photo ID card must be issued by a certain date for it to be an acceptable form of photo ID. If a voter is voting a provisional ballot during early voting or on 25 08 NCAC 17 .0101(e)(2). 26 N.C.G.S. § 163-166.16(c). 12 election day due to a lack of photo ID at the voting place, they must still be a registered and eligible voter as of election day for their vote to be counted. 14 Can a voter, who voted a provisional ballot because they did not have their photo ID with them when voting, return to the voting place later with their photo ID, have their provisional ballot “spoiled,” and then vote a regular ballot? No. Once a voter has voted a provisional ballot, they cannot have that ballot “spoiled” so that they can then vote a regular ballot.27 If a voter casts a provisional ballot because they did not have their photo ID with them when presenting to vote, their only option to have their ballot counted is to bring their photo ID to the county board office. In that case, if the voter’s photo ID meets all legal requirements, then the county board of elections must approve the provisional application and the voter’s ballot will be counted the same as a voter who casts a regular ballot.28 Photo ID Exception Forms for In-Person Voters The exceptions to the photo ID requirement are found in N.C.G.S. § 163-166.16(d)–(f), and the county board processes involved are guided by 08 NCAC 17 .0101(e)(1). 15 Can a voter complete a Photo ID Exception Form at a county board office when the voter voted a provisional ballot intending to bring their photo ID to the county board office later but instead could not find a photo ID? No. Under N.C.G.S. § 163-166.16(d), a voter who is voting in person on Election Day or during early voting can only complete a Photo ID Exception Form “at the voting place.” 16 What can a county board consider when reviewing a voter’s Photo ID Exception Form? Truth or falsity. When a voter completes a Photo ID Exception Form and votes with a provisional ballot, “the county board of elections shall find that the provisional ballot is valid unless the county board has grounds to believe the affidavit is false.”29 (The “affidavit” refers to the Photo ID Exception Form.) A decision that the Form is false must be unanimous, and can 27 See 08 NCAC 10B .0104(a) & (e) (once a voter receives their ballot, they cannot return to vote again). 28 N.C.G.S. § 163-166.16(c). 29 N.C.G.S. § 163-166.16(f). 13 only be made after the county board provides the voter notice and an opportunity to address the board on any grounds that the county board is considering regarding the falsity of the Form.30 If a county board ultimately decides that a voter’s Photo ID Exception Form is false, then the county board must “substantiate any finding of falsity with grounds recorded in a written decision.”31 What this means is that the county board must be able to point to specific information before the board that led it to conclude that the Photo ID Exception Form contains a false statement. A decision that the Form is false must be based on facts, not speculation, and may not be based on personal opinion as to whether the voter’s asserted reason is a good reason for not showing an ID. Importantly, it is not the county board’s role to second-guess the reasonableness of a voter’s asserted impediment to showing photo ID. Instead, the board is only concerned with the truth or falsity of the assertion on the Form that (1) an identified impediment is preventing the voter from showing a photo ID, (2) the voter has a religious objection to being photographed, or (3) the voter was a victim of a recent natural disaster.32 A Photo ID Exception Form that identifies an “other” reasonable impediment that bears no relationship to a voter’s ability to present photo ID may be rejected for being false. For example, a Form that states the voter was unable to present photo ID because “the sky is blue” could be deemed false by the county board. Although the sky may be blue, the voter is claiming on the Form that the blueness of the sky is preventing them from showing ID. The county board could rationally conclude, without speculating, that nothing about the color of the sky prevents a voter from showing photo ID. Similarly, a Form claiming an inability to present photo ID due to the voter’s disagreement with or objection to the photo ID requirement could be deemed false. Although it may be true that the voter disagrees with or objects to the law, the county board could rationally conclude, without speculating, that nothing about one’s disagreement with or objection to a law actually prevents the voter from complying with the law—much like how disagreeing with the tax laws does not prevent someone from paying their taxes. Accordingly, if the county board finds that an “other” reasonable impediment bears no relationship to a voter’s 30 08 NCAC 17 .0101(e)(1). 31 08 NCAC 17 .0101(e)(1). 32 As Judge (now Justice) Kavanaugh explained in a case dealing with South Carolina’s similar reasonable impediment exception to presenting photo ID, “[a]ny reason that the voter subjectively deems reasonable will suffice, so long as it is not false. If the affidavit is challenged before the county board, the county board may not second-guess the reasonableness of the asserted reason, only its truthfulness.” South Carolina v. United States, 898 F. Supp. 2d 30, 36–37 (D.D.C. 2012). 14 ability to present photo ID, and therefore the Form false, then a disapproval of a voter’s provisional ballot upon that finding would comply with the law.33 17 Will a voter’s ballot be counted if the voter completes a Photo ID Exception Form and writes on the reasonable impediment “Other” line, “I did not know photo ID was required”? A statement that the voter was not aware of the photo ID requirement is a true reason for why a voter could not show a photo ID at the time they presented to vote, unless the county board has information proving that the voter did, in fact, know they needed to show ID. Again, the reasonableness of a voter’s impediment to presenting ID is for the voter to determine.34 The county board’s concern is with the truth or falsity of the Form. And for a reasonable impediment, the county board is specifically concerned with whether it is true or false that the claimed reason “prevents the registered voter from presenting photograph identification.”35 County boards must remember that an impediment to presenting ID could involve something that has kept the voter from even obtaining an ID in the first place (for example, lack of transportation, lack of documents needed to get the ID, etc.). But even if a voter has an ID, the law still permits them to claim a reasonable impediment to presenting ID at the voting site (for example, ID misplaced, voter unaware that they would need to bring ID, etc.). 33 On the other hand, a rejection of a ballot based on the county board’s conclusion that a voter’s given reason on the Form was “insufficient” or “nonresponsive” would not comply with the law. The law permits the county board to reject a provisional ballot with a completed Photo ID Exception Form only if “the county board has grounds to believe the affidavit is false.” N.C.G.S. § 163-166.16(f). 34 See note 32. Judge Kavanaugh further explained, “the reasonableness of the listed impediment is to be determined by the individual voter, not by [an election official] or county board. The reasonable impediment affidavit simply helps to ensure that voters . . . are who they say they are.” South Carolina, 898 F. Supp. 2d at 36. 35 N.C.G.S. § 163-166(d)(2). Special Meeting New Hanover County Board of Elections October 1, 2024 Subject: Closed Session Chairman Statement Prior to Closed Session: I move that the Board enter into closed session, under N.C. Gen. Stat. § 143-318.11(6) to discuss personnel matters. Applicable Statutes and/or Rules: N.C. Gen. Stat. § 143-318.11(6) Summary: Closed session is required to discuss personnel matters under N.C. Gen. Stat. § 143-318.11(6). Board Action Required: Discuss as necessary Returning to Open Session: I move that the Board return to open session, under N.C. Gen. Stat. § 143-318.11(6), to conduct business remaining before the Board. Item # 2 Item # 4 Special Meeting New Hanover County Board of Elections October 1, 2024 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