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NHC Board of Elections Minutes 10.05.2021 Board Minutes –10/05/2021 SPECIAL MEETING New Hanover County Board of Elections October 5, 2021 5:00 PM ATTENDANCE Members: Oliver Carter III, Chair Derrick R. Miller, Secretary Russ C. Bryan, Member Lyana G. Hunter, Member Bruce Kemp, Member Staff: Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Chris Tisbert, Election Systems Specialist Joan Geiszler-Ludlum, Administrative Technician Visitors: Sheryl Kelly, Assistant County Manager Public Attendees – In Person: Bob Gatewood; Gail Collier; Janet M. Heid; Loraine Buker, League of Women Voters – Lower Cape Fear; Becky Jaskey; John Jaskey; Stephanie Fortunato; Matthew Heiser; Susan Kreamer; Tom Kreamer; Annie Thi, YouCanVote. Public Attendees - Virtual attendees: Julius Rothlein, NHC GOP; Jody Kemp. OPENING Chair Carter called the meeting to order at 5:04 p.m. The New Hanover County Board of Elections meeting was held in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. All members were present. Chair Carter reminded the attendees that face masks are required under the mask mandate in effect in New Hanover County. This meeting is being livestreamed and recorded. AGENDA Member Kemp moved adoption of the agenda as submitted, second by Member Hunter. Motion carried unanimously. Board Minutes –10/05/2021 PUBLIC COMMENT AND QUESTION Chair Carter called on the public in-person attendees for their comments or questions, limited to two minutes each. He asked speakers to give their name before speaking. John Jaskey expressed his concerns about election integrity, raising a need to analyze the results of the 2020 election. He presented copies of three documents regarding forensic audits. Mr. Jaskey requested that Board order a formal forensic audit and preserve election records from the 2020 Presidential Election for that purpose. Matthew Heiser asked the Board for assurance that the public will have access to watch the counting of the vote on Election Day, citing NCGS §163-182.2. While he could not give that assurance at this time, Chair Carter could assure that this Board is committed to following the North Carolina General Statutes, North Carolina Administrative Code, and guidance from the State Board of Elections. He will provide clarity on public access to observe counting of ballots at a later time. Stephanie Fortunato, precinct chair for M04, noted the pandemic-related expanded requirements for absentee voting put in place for the 2020 election, including expanded early voting, relaxed voter identification, and the extended canvass period for absentee- by-mail ballots without legislative action. She has concerns regarding cleaning up voter rolls to remove deceased, ineligible and inactive voters; securing chain of custody for returned absentee ballots; and allowing bipartisan observers in polling places during opening and closing the polls. She offered to send her statement to the Board members and was directed where to find their email addresses. An unidentified in-person attendee asked Chair Carter for further clarification of his comment about bi-partisan teams of precinct officials. He explained that in all but two precincts, one Democrat and one Republican official are appointed. The exceptions include Unaffiliated voters as allowed by statute. There cannot be three judges of the same political party by statute. Becky Jaskey asked if the appointments are publicly available. Chair Carter responded that the names are public information and are available on the NHC Board of Elections website. She requested a full forensic audit of the results of the 2020 election to instill trust in the process, and asked the Board to hold a special meeting to begin the process. Chair Carter said the Board will hold the canvass of the 2021 Municipal Election on November 9 which is open to the public. Director Hunter-Havens said the absentee ballots would be counted on Election Day at 2:00 p.m. The meeting is open to the public and will be live-streamed also. A special meeting will be held on November 8 where the Board will review the provisional ballots, and any absentee ballots postmarked by Election Day and received not later than November 5, in preparation for the final canvass the next day. Another learning opportunity is to serve as an observer appointed by one of the political parties. Susan Kreamer said she went through training today as a laptop operator and found the elections process to be far more secure than she had thought. She had two questions: are Board Minutes –10/05/2021 mail-in ballots mailed only to voters who request them (yes) and are voting machines connected to the internet (no). Seeing and hearing no other public attendees wishing to comment, Chair Carter closed the Public Comment session. GENERAL DISCUSSION Chair Carter opened the General Discussion of other election-related matters. He notified the Board of his Order, dated September 26, 2021, appointing Anne Randall as Judge in Precinct W13 to fill a vacant position arising from the death of the previous appointee, effective September 27, 2021, at 4:00 p.m., pursuant to NCGS §163-41(d). Eight chief judge and judge positions remain to be filled. Appointees serve until their successors are appointed. Member Kemp asked whether Ms. Randall is a resident or non-resident of W13? Chair Carter said she is a non-resident transfer. Seven vacant appointments remain which will be addressed under New Business. Member Kemp asked about the timing and qualification of appointment of precinct assistants. By statute this is a Board responsibility. Chair Carter called on Director Hunter-Havens to review the process. The Director said that the Board appoints chief judges and judges for two-year terms in odd-numbered years. County directors assign precinct assistants to serve election to election. They are not appointed by the Board because of high turnover and there are too many moving parts to the process. The political parties are encouraged to submit names and the staff recruits applicants through the elections website. Applications are due from four to eight weeks before Election Day to manage all aspects of the on-boarding, assessment, selection, training, and assignment processes. Statutory requirements for party affiliation representation are followed, along with consideration of prior experience, administrative skills, formation of functional teams, and scheduling for training. Member Hunter asked is this not one of the duties the Board has delegated to the Director? The Director said that traditionally county boards delegate the assignment of precinct assistants and filling vacancies among chief judges and judges to the Director. Director Hunter-Havens informed the Board of the September 4 State Board legal update that observers will be allowed during municipal elections going forward. She has forwarded the guidelines and deadlines to the county party chairs. NEW BUSINESS a. Review of Absentee Ballot Applications Chair Carter called on Director Hunter-Havens for her report. The Board received two Uniformed and Overseas Civilian Absentee Voting Act (UOCAVA) ballots. UOCAVA voters are permitted to submit their ballot with a required signed attestation by email or through the State Board portal or by regular mail. The voted ballot is printed and placed in the absentee envelope and the attestation is Board Minutes –10/05/2021 attached to the envelope. The Board circulated and reviewed the two UOCAVA ballots. Upon approval, the UOCAVA ballots will be secured to be duplicated and scanned at a subsequent Board meeting in preparation for counting on Election Day. A first mailing of approximately 300 absentee ballots have been requested and sent to date, compared to 18,000 in 2020. Member Kemp moved that two UOCAVA absentee ballot applications be approved, in accordance with NCGS §§163-229 (b) and 163-230.1 (e) (2020), second by Member Bryan. Motion carried unanimously. b. Chief Judge/Judge Substitutions to Fill Vacancies for the 2021 Municipal Election Only Chair Carter called on the Director for her report. Leading up to Election Day, the appointed chief judges and judges may become unavailable to serve. In recommending substitutes for unavailable appointees, the staff follows a sequence of factors, party affiliation of the unavailable appointee first, including contacting the party chair for assistance as needed; contacting on-boarded officials to discern interest in serving; precinct of residence; and skill sets and knowledge base for high quality and high functioning teams. There are eight substitutions recommended. Deputy Director Dawkins confirmed that seven of the eight recommendations are current appointed officials in precincts where municipal voting is not taking place, or have served in the role in previous elections. One is a new official recommended to get election experience. All have agreed to serve in the assigned position. In six precincts, balance between Democrat and Republican appointees is maintained, and in two the balance will be party and Unaffiliated officials with assistants appointed to achieve bipartisan teams. In no case are all three officials of the same party. Chair Carter called for any discussion by the Board. Member Kemp noted that in two precincts, H10 and W27, an Unaffiliated substitute is replacing a Republican appointed official. The county Republican Party has previously submitted names for these positions, and he would like the Board to consider those Republican nominees instead of Unaffiliated officials. Deputy Director Dawkins said that those names were reviewed for any who lived in the precinct needing a substitute and any new officials who had completed the on-boarding process. She reached out to assigned assistants of the same party affiliation to identify someone willing to serve. After those officials declined to serve or did not return calls, she moved on to Unaffiliated assistants. The list before the Board reflects the staff assessment that these are the right people to serve for this election and they have agreed to serve in this capacity. Chair Carter asked Deputy Director Dawkins to review the number of precinct official applications received in the past month and number of training and information sessions. She has reviewed about 60 applications received due to the additional efforts of both parties over the past month. She reached out to all applicants who applied by September 21. All applicants received an email inviting them to sign up for information sessions, which are scheduled for three session times on one or two days each week. Upon completing the information session, an applicant receives two emails, one to complete an Board Minutes –10/05/2021 e-skills assessment of comfort with technology use which does not eliminate that applicant from consideration. The second follow-up email outlines the next steps the applicant must complete to become eligible to work an election, consisting of required HR forms (W-4, NC-4, and direct deposit) and a visit to HR to complete the I9 process to confirm eligibility to work in North Carolina. Once completed, the applicant is contacted to determine interest and availability to work in this election. Of the additional applications received, 45 signed up for an information session. Anyone who did not complete the HR process was sent a reminder email that the deadline to complete the process was 11:00 a.m. on October 4. Administrative deadlines are necessary as the on- boarding process must occur alongside training schedules and the dynamic assignment process to get officials trained and scheduled to work both One Stop early voting and Election Day, while backfilling positions where officials have become unavailable. Keeping in mind that these are not Board appointments but rather staff-initiated administrative assignments, Secretary Miller moved to support the administrative substitutions for the listed eight precincts for the 2021 Municipal Election only, second by Member Hunter. Member Kemp noted that the agenda packet cites §163-41 as authority for this administrative action and asked which paragraph applies? Chair Carter said the cited section does not explicitly mention substitute appointments, but his review of about three dozen court decisions suggests that the courts frequently defer to the historical practices of the county board of elections that are consistently followed over time. Member Kemp pointed out that the list shows the chief judge position in H10 and judge position in W27 as vacant, which means that the Chair can make those appointments by statute. He noted that he relied on the Chair’s resolution in making several appointments at the last Board meeting, voting to appoint several Democrat judges but two of the Republicans appearing in that resolution were not appointed. He moved to amend the motion to remove H10 and W27 substitutions from consideration so that the Chair can make those appointments as authorized in §163-41(d). Secretary Miller seconded the motion to amend for purposes of discussion. Chair Carter said it may be misleading that these two substitutions are labelled “vacant” when in previous Board discussion we learned that the positions are not vacant. Director Hunter-Havens said that the 2019 appointees to the two positions in question did not confirm their availability to serve in this election, but are otherwise willing to continue serving, making these temporary vacancies. Chair Carter said he had worked with Member Kemp before the previous meeting to draw up the resolution he presented to fill several remaining appointments. Member Kemp thought going into that meeting that all members were on Board with those appointments and that was not the case. He had not circled back with Member Kemp after his one-on-one discussions with the other Board members to convey that everyone was not on board. He expressed his regret that he did not catch that misunderstanding earlier and did not get everyone on the same page before moving forward. He wants to take the question of when the Chair is authorized to make appointments under advisement. Board Minutes –10/05/2021 Member Hunter said from the Board’s previous votes she thought the positions were clear. Coming into the last meeting it may be possible to have one impression, but the discussion made it clear where everyone stood. Her question is why the Board is having this discussion when the assignments are already made? Revisiting the matter is an unproductive use of the Board’s time. The positions were clear from the vote, some compromises were made, and some were not. Chair Carter agreed that the previous meeting discussion was candid. The Open Meetings law restricts how the Board may communicate outside of meetings and there are good reasons for those restrictions. Member Bryan asked Director Hunter-Havens whether Board affirmation is required? She said that she prefers to have the Board’s unanimous support as has been given in the past, but it is not required to move forward administratively. All polling places are required to have a chief judge and judges as directed by §163-41 which is why it is cited as support, not for the process of appointment but for the fact that these positions are required by statute. Chair Carter said that he is opposed to the amendment. He prefers to give his support to all eight substitute assignments even if they may not have been his first choice to serve in these positions. To the extent that any of these assignments results in one of the parties not being represented, he would encourage both political parties, and particularly any party that may feel it is disadvantaged by the assignment, to assign observers in that precinct. Member Bryan said he initially was in the same place as Member Kemp but quickly realized everyone was not on the same page. He is satisfied that the administrative assignments for these precincts provide representation for both parties. He is also satisfied based on his previous experience that irregularities at the polls are almost non- existent. Secretary Miller said he planned to vote against the motion to amend and called the question on the amendment. He explained that a yes vote on the amendment changes the main motion to support the staff substitutions of six instead of eight names under consideration, a no vote keeps the main motion as a vote of support on all eight names. Member Kemp voted aye; Chair Carter, Secretary Miller, Members Bryan and Hunter voted no. Motion failed for lack of a majority. Member Kemp offered a substitute motion to remove the H10 chief judge and the W27 judge so that the Chair can appointment Republican replacements for the remainder of the terms under §163-41(d). Chair Carter ruled the motion out of order as this is a temporary substitution, not filling a vacancy, and there is a different motion on the floor. Member Kemp said his motion is a procedural one, to remove and replace the incumbent appointees who are unable to serve for this election, and appoint replacements to complete the terms. The substitute motion was not seconded. Member Kemp stated that he would vote no to prevent unanimous approval of the main motion. Director Hunter- Havens reminded the Chair that a unanimous vote is not required to support the substitutions. Board Minutes –10/05/2021 Secretary Miller called the question on the main motion, to support the administrative substitutions for the listed eight precincts for the 2021 Municipal Election only. Chair Carter treated Secretary Miller’s calling the question as a motion to cut off debate, second by Member Hunter. Chair Carter, Secretary Miller, Members Hunter and Kemp voted aye; Member Bryan voted no. Motion carried by majority vote. Chair Carter called the vote on the main motion. Chair Carter, Secretary Miller and Member Hunter voted aye; Members Bryan and Kemp voted no. Motion carried by majority vote. Member Kemp challenged the validity of the vote. The agenda cites §163-41 as the basis for the vote. He sees nothing in §163-41that supports this vote. He asked that his challenge be noted in the minutes. Everything the Board does regarding appointments under paragraph (c) requires unanimous votes, calling into question the validity of substitute assignments by majority vote. Director Hunter-Havens reminded the Board that this action is not appointing chief judges and judges. These are administratively making temporary substitute assignments under a policy followed by county boards state-wide and following the guidance of the State Board of Elections to staff polling places with chief judges and judges as required by statute. Chair Carter asked if the substitutes would take an oath (yes) and whether the assignments will expire upon completion of the final canvass (yes). Chair Carter asked Member Kemp if he wished to put his previous motion back on the table for discussion. Member Kemp moved to remove the previously appointed H10 chief judge and the W27 judge, declaring those positions vacant, and the Chair appoint their successors as early as tomorrow pursuant to §163-41 (d), second by Member Bryan. Chair Carter said that §163-41 (d) provides that a vacancy arises when the appointee resigns, dies, is removed from office, or for other cause, and requires notice to the official under consideration for removal and an opportunity for that official to be heard. Member Kemp said that staff have made efforts to contact the incumbents without success and should serve as the required notice. Chair Carter said that the notice would need to be specific notice that the board is considering removing the person from the appointed position and give an opportunity for the person to be heard by the Board at a specific time and date. Member Bryan said he felt the Chair may be reading too much into what notice is required to satisfy due process for removal. Deputy Director Dawkins said these two officials have diligently served in previous elections. Before any steps are taken toward removing them, she would like the chance to attempt contact with them once more to honor their prior service. She would like to find out their intentions, whether they want to continue to serve. That effort would mean a lot to the officials before any formal steps are taken to remove them. Then those two precincts can be reassessed with the Board. Chair Carter said the point that resonates with him is these officials, appointed in 2019, have served well. The only reason removal is being considered now is that they did not respond to an email. They have done nothing wrong. Member Hunter said she trusts the process the staff followed to fill these positions, made necessary by the Board’s inability Board Minutes –10/05/2021 to agree on the appointments. The Board needs to take the necessary action to get through the municipal election when it can revisit these appointments. The objection is the appointment of unaffiliated voters to serve but that does not disqualify them. She agrees with Member Kemp that bipartisan representation is needed. But someone who is registered as Unaffiliated meets the criteria to serve in these positions. After further discussion, Member Kemp withdrew his motion to allow the eight substitute assignments go forward and avoid delay. Member Bryan asked the party affiliation of the 2019 appointee as chief judge in H10. Deputy Director Dawkins, noting she does not have that information in front of her, said the usual procedure is to appoint someone of the party of the governor, then consider someone regardless of party who is willing to serve, their work history and the other factors. Member Kemp asked whether the open positions in W24 and W13 have been filled. Deputy Director Dawkins reported that temporary vacancies continue to arise in a number of precincts, but she has not yet identified temporary replacements to present to the Board today. This is a daily task at this point. Member Kemp said the Board could declare all the unfilled positions vacant, allowing the Chair to make the appointments as soon as tomorrow. Chair Carter said there are two schools of thought on that appointment process, but traditionally only one of the three positions can be filled by a non-resident following the section (d) process. That is the guidance received from the State Board. Secretary Miller said, based on last year’s experience, the Board will see lists of changes to be made at every meeting up until Election Day, that is how dynamic the process is. Procedural innovations made here, in the midst of the process, undermine stability. Member Kemp said he is trying to follow the code and is not asking for process changes. ADJOURNMENT Member Hunter moved that the meeting be adjourned at 6:40 p.m., second by Member Kemp. Motion carried unanimously. The next Board meeting is scheduled to be held on October 12, 2021, at 5:00 p.m. APPROVED BY: RESPECTFULLY SUBMITTED BY: __________________________ _________________________________ DERRICK R. MILLER RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR