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Board Meeting Agenda Packet 10-11-2022MEETING AGENDA Date: October 11, 2022 Time: 5:00 PM Location: Bd of Elections Office, Long Leaf Room Type: Special Scheduled Attendees: Oliver Carter III, Chair Rae Hunter-Havens, Elections Director Derrick R. Miller, Secretary Caroline Dawkins, Elections Deputy Director Lyana G. Hunter, Member Joan Geiszler-Ludlum, Administrative Elections Bruce Kemp, Member Technician Russ C. Bryan, Member Jenna Dahlgren, Elections Logistics Specialist Noelle Powers, Elections Systems Specialist Visitor(s):Kemp Burpeau, Deputy County Attorney AGENDA ITEMS 1.Meeting Opening a.Call to Order b.Preliminary Announcement i.Silence Phones ii.Recording & Streaming iii.Other c.Pledge of Allegiance d.Approval of Agenda 2.Public Comment and Question Period •2-minute limit •20-minute limit total 3.Old Business a.Approval of Minutes (5/3/2022, 5/10/22 and 9/13/22) b.Member Bryan’s request to discuss the door usage by observers at the Northeast Library 4.Statutorily-Required Business a.Chief Judge and Judge Appointments b.Precinct Assistant Appointments c.Review of Absentee Ballot Applications 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 11, 2022 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Item # 1d Special Meeting New Hanover County Board of Elections October 11, 2022 Subject: Public Comment Summary: This is an opportunity for members of the public to provide comment on elections-related matters. Each commenter will be limited to two minutes with a twenty-minute limit total for all public comments. Board Action Required: Discuss as necessary Item # 2 Item # 2 Special Meeting New Hanover County Board of Elections October 11, 2022 Subject: Approval of Minutes Applicable Statutes and/or Rules N.C. Gen. Stat. §§ 163-31(e) and 143-318.10(e) Summary: This includes minutes from the 5/03/22, 5/10/22 and 9/13/22 meetings. Board Action Required: Staff recommends approval Item # 1d Item # 3a Board Minutes 05/03/2022 Page | 1 SPECIAL MEETING New Hanover County Board of Elections May 3, 2022 5:00 P.M. ATTENDANCE Members: Oliver Carter III, Chair Derrick R. Miller, Secretary Russ C. Bryan, Member Lyana G. Hunter, Member Bruce Kemp, Member Staff: Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Joan Geiszler-Ludlum, Administrative Technician Jenna Dahlgren, Elections Logistics Specialist Visitors: Sheryl Kelly, Assistant County Manager; Lisa Wurtzbacher, Assistant County Manager Public Attendees: Bob Gatewood, Mike Torbit, ? Torbit, Julius Rothlein and Matthew Emborsky, NHC GOP Virtual attendees: Greg Flynn, Tyler Daye, Jana Albritton, Brenda Fong 1. MEETING OPENING a. Call to Order Chair Carter called the meeting to order at 5:00 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. Chair Carter said Members Bryan and Hunter are on the way. b. Preliminary Announcements Chair Carter reminded the audience to silence their cell phones and that the meeting is being recorded and live streamed on the internet. [Member Bryan arrived.] c. Pledge of Allegiance Chair Carter invited all in attendance to rise and recite the Pledge of Allegiance. Board Minutes 05/03/2022 Page | 2 d. Approval of Agenda Chair Carter proposed a 10-minute limit on the Public Comment and Question Period. Member Bryan moved approval of the agenda as amended, second by Member Kemp. Motion carried unanimously. 2. PUBLIC COMMENT AND QUESTION PERIOD Chair Carter called on the public in-person attendees for their comments or questions, limited to two minutes each with a total maximum time of ten minutes. He reminded speakers to yield to the Board Members or Director to respond. Chair Carter noted receiving Julius Rothlein’s emailed comments on observer issues and called on Mr. Rothlein to summarize his concerns: • Direction to observers to remain seated in designated area which prevents checking the DS200 public count, even when no one is in the process of voting; • Prohibition on walking across/through the voting booth area; • Observed two voters voting curbside in a vehicle completing their ballots simultaneously, rather than sequentially. Chair Carter called on Director Hunter-Havens to explain public viewing of the opening of the polls. Director Hunter-Havens said the opening of the polls is a silent public observation time from a designated area with clear line of sight to the DS200 tabulator. Observers can move around the polling place but cannot approach the DS200, voting booths, or other locations for security reasons. Curbside voters can vote together and may request and receive assistance while voting. Simultaneous voting is not prohibited. Chair Carter said the Board may discuss further during their General Discussion. [Member Hunter arrived at 5:06 p.m.] Matthew Emborsky read from his prepared comments. He said to his observation One Stop voting is going well, but he wished to bring an issue to the Board’s attention: observers are being kept so far away that they are not able to see or hear the voting process. Chair Carter suggested to Mr. Emborsky to provide documentation of issues for review and response from the Director. Director Hunter-Havens said she is aware of some incidents with observers and curbside voters. She said the vehicle becomes a voting enclosure while its occupants are in the process of voting. Observers must position themselves at least six feet away to respect the privacy and confidentiality of the voter, referencing State Board of Elections (SBE) Numbered Memo 2020-20. Chair Carter deferred any further discussion to the General Discussion session. Seeing and hearing no other public attendees wishing to comment, Chair Carter closed the public comment and question period. 3. STATUTORILY-REQUIRED BUSINESS a. Review of Absentee Ballot Applications Board Minutes 05/03/2022 Page | 3 Chair Carter called on Director Hunter-Havens for her report on the absentee ballots to be reviewed. Director Hunter-Havens reported there are 70 absentee-by-mail ballot applications, including one cured deficiency, for review and approval. In addition, there are 1,958 One Stop applications for review and approval. She recommends approval of the absentee applications as presented. Director Hunter-Havens answered several questions from the Board regarding the review process on same-day registration verification and One Stop voting procedures. Board began review of the absentee-by-mail applications at 5:19 p.m. Member Bryan asked whether the signatures on two applications that appear to be stamped are acceptable. Director Hunter-Havens said that the rule for signature is a mark made by the voter. A stamped signature may be acceptable if the voter has a medical condition or disability that prevents the voter from signing. After discussion, the Board set those two container-return envelopes aside for further review. The Board completed their review of the absentee-by-mail container-return envelopes and One Stop roster at 5:51 p.m. Member Kemp moved to defer the two absentee-by-mail applications set aside for further research to the next meeting, and accept 68 absentee-by-mail applications and 1,958 One Stop absentee ballots for scanning, second by Chair Carter. Motion carried unanimously. Chair Carter authorized the staff to proceed with scanning the approved absentee-by-mail ballots. Scanning began at 5:58 p.m. Scanning was completed at 6:46 p.m. Chair Carter reconvened the meeting. Director Hunter-Havens reported additional information on the two deferred absentee-by- mail applications, obtained from researching the voter’s previous requests for absentee ballots. On two prior requests in 2020 and 2021, the voters checked the box to request absentee ballots for all elections in those years due to illness or disability. On their 2022 forms, the box was not checked. After further discussion of the stamped signatures on the absentee-by-mail applications, Secretary Miller moved to approve the two ballots, subject to the staff contacting the voters to advise them on how to comply with the signature requirements, and hold the ballots for scanning at the next meeting, second by Member Bryan. Motion carried unanimously. b. Chief Judge/Judge Administrative Assignments for the 2022 Primary Election Chair Carter introduced the discussion of administrative assignments, explaining that when a chief judge or judge resigns or passes away, the Board appoints a successor for the position. When an appointed chief judge or judge is unable to serve in a particular Board Minutes 05/03/2022 Page | 4 election due to a scheduling conflict, but does not resign the office and intends to serve in the future, the staff are charged with finding a temporary replacement to fill the position for the up-coming election only. Director Hunter-Havens said that is the situation in three precincts – W32, W33 and M04 for the primary election on May 17. Following standard procedure and guidance, staff has identified a resident substitute of the same party (Republican) for W32 judge, a non-resident transfer substitute of the same party (Democrat) for W33 judge, and a resident substitute but a different party affiliation (Democrat for Unaffiliated) for M04. The recommended assignments maintain the required balance between Democratic and Republican officials and not more than one transfer per precinct. Member Kemp said he remains at a loss as to the authority for administrative assignments. He said the statutes cited in the agenda packet do not contain authority for staff to make administrative assignments. He said it does not qualify as “statutorily required business.” Director Hunter-Havens said the statute requires every precinct to be staffed by a chief judge and two judges. The assignments are included under statutorily required business to inform the Board of the substitutions. Chair Carter said the Board could look at firming up the process after the primary is over. 4. GENERAL DISCUSSION Chair Carter said the Board would return to comments from the Public Comment session earlier in this meeting. He began with the email comments from Jules Rothlein, NHC Republican Party, and addressed the items as follows. 1. Reports that Sheriff McMahon’s campaign signs are too large. Director Hunter-Havens said that the county boards of elections do not regulate campaign signs. This should be brought to the attention of the candidate’s campaign or the NC Department of Transportation if the sign is located on a state-system road right-of-way. Sign regulations are shared with the candidates at filing. Director Hunter-Havens agreed to contact the candidate’s campaign to advise of the complaint. 2. Observers were asked to show ID by a chief judge. Chair Carter asked that precinct officials and observers show each other mutual respect. Director Hunter-Havens said this is not a matter of specific instruction and is left to the discretion of the site lead or chief judge. Observers are required to sign the Observer list and will be asked to leave if the observer declines. Director Hunter-Havens described a recent incident where one observer refused to sign the list, was disrespectful to the site staff, and left. Chair Carter noted that the remaining items address various aspects of observer access at the polling place regarding curbside voting and moving around in the voting area. He said the issues that stood out to him involve observers being delayed in getting outside to observe curbside voting. Director Hunter-Havens described the restrictions that apply to observers: Board Minutes 05/03/2022 Page | 5 • Remain within designated areas and restricted from entry into the voting booth area (the voting enclosure) or behind the workers at the check-in table to prevent seeing confidential information. • Respect a six-foot buffer zone around the vehicle at curbside. She said part of the challenge is the ability to hear outside with curbside and the background noise. If an observer is having difficulty, she asks the observer to contact her to see what accommodation might be possible. Chair Carter recommended that party officials bring their concerns in real time to the Director for her attention. Chair Carter returned to Mr. Rothlein’s earlier question about two or more voters voting simultaneously at curbside. Simultaneous voting is not prohibited. Any voter may ask for assistance from the person of their choice, subject to the consent of the chief judge, site lead, or curbside operator by delegation. It is common for married couples or a parent and child to share a voting booth while voting, and that is not prohibited. Chair Carter deferred further discussion pending additional study of the statute and asked if there are any further items for general board discussion. Member Kemp said people present to observe the opening and closing the polls have complained that they are restricted from being able to see what is happening during opening or closing. Chair Carter asked if the complaint is they are too far away to see what is happening. Director Hunter-Havens said the positioning of the observer area balances ballot access and security, while providing line of sight for the observers. Member Kemp read from a text message he received that complained that the observation area at the Carolina Beach site was on the opposite side of the room from the DS200. Director Hunter-Havens said that site has size limitations for locating a place where observers can see as much as possible while being able to hear voters checking in to vote. Mr. Emborsky said the issue is transparency during opening. With the three officials involved in opening or closing, observers are blocked from seeing the screen and seeing inside the blue bin. Director Hunter-Havens said there is no requirement that observers must see inside the blue bin. Member Bryan said that is the wrong way to look at the question, which should be not what is required but what can be allowed. Director Hunter-Havens said the role of a bipartisan team is to assure the proper secure review of the function of the equipment, including inspecting the blue bin before opening. Observers are not part of the performance of the process, but are able to observe that all the steps of the process are completed in real time. Chair Carter asked the Director to review the site plan with the Site Lead at Carolina Beach to see if any adjustments to the observer location are possible, given the space limitations. Director Hunter-Havens said the observers can see the officials as they open the polls from the designated location. Chair Carter asked whether the observer had any discussion with the Site Lead about their concern. Mr. Emborsky said he was not familiar with what discussion may have occurred and reiterated his concerns with transparency and the negligible amount of time it would take to show the observers the Board Minutes 05/03/2022 Page | 6 empty blue bin. Chair Carter said it is not the Board’s role to micromanage voting processes but appreciated having the concern brought to the Board’s attention. Member Kemp said the point is made, even though perhaps not successfully, and suggested the Board continue to monitor how voting is going. He added that the code says that observers are empowered “to make such observation and take notes as the observer may desire.” (NC Gen. Stat. §163-45(c)) Chair Carter called for any other items for general discussion. Director Hunter-Havens reported that the New Hanover County Commissioners approved placing a referendum on the November ballot to consider a quarter-cent sales tax increase in support of public transportation improvements and enhancements. She will provide updates as they become available. Chair Carter clarified the meeting dates and times for the canvass are May 26 at 2:00 p.m. and May 27 at 11:00 a.m. Chair Carter thanked Assistant County Manager Sheryl Kelly for her good work with the Board as this is her last meeting before retiring. Ms. Kelly introduced her successor, Lisa Wurtzbacher, to the Board. 5.ADJOURNMENT Chair Carter moved that the meeting be adjourned at 7:52 p.m., second by Member Hunter. Motion carried unanimously. The next Board meeting is scheduled to be held on May 10, 2022, at 5:00 p.m. in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. APPROVED BY:RESPECTFULLY SUBMITTED BY: ____________________________________________________________ DERRICK R. MILLER RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Board Minutes 05/10/2022 P a g e | 1 SPECIAL MEETING New Hanover County Board of Elections May 10, 2022 5:00 P.M. ATTENDANCE Members: Oliver Carter III, Chair Derrick R. Miller, Secretary Russ C. Bryan, Member Lyana G. Hunter, Member Bruce Kemp, Member Staff:Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Jenna Dahlgren, Elections Logistics Specialist Joan Geiszler-Ludlum, Administrative Technician Visitors: Lisa Wurtzbacher, Assistant County Manager Public Attendees: Bob Gatewood; Jules Rothlein, Matt Emborsky, NHC GOP; Virtual attendees: Susanne Werner; Francis Acanfora. 1.MEETING OPENING a.Call to Order Chair Carter called the meeting to order at 5:01 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. Chair Carter said Member Hunter is on her way. b.Preliminary Announcements Chair Carter reminded the audience to silence their cell phones and that the meeting is being recorded and live streamed on the internet. c.Pledge of Allegiance Chair Carter called on Member Hunter to lead the audience in rising and reciting the Pledge of Allegiance. Board Minutes 05/10/2022 P a g e | 2 d.Approval of Agenda Member Bryan moved that the agenda be approved as submitted, second by Member Hunter. Motion carried unanimously, without discussion. 2.PUBLIC COMMENT AND QUESTION PERIOD Chair Carter called on the public in-person attendees for their comments or questions, related to the topics on the agenda for this special meeting, absentee by mail and early voting. Comments will be limited to two minutes each with a total maximum time of ten minutes. He reminded speakers to yield to the Board Members or Director to respond. Chair Carter noted receiving email comments from Jules Rothlein, on behalf of the New Hanover County GOP, and invited Mr. Rothlein to address those comments. Jules Rothlein summarized his concerns about setting a proper balance between what observers may see in a polling place and what is confidential. Director Hunter-Havens asked that observers let the One Stop leads know about any difficulties so that these may be addressed timely. Member Hunter said this issue seems to come up at every meeting with concerns addressed and explanations given, although perhaps not accepted. Matthew Emborsky asked whether any guidelines have been set for public observation of the opening of the polls and what time observers should arrive for the opening. Director Hunter-Havens said election officials will arrive at 5:30 a.m. and requested that observers allow them a little time to get organized and identify election workers before expecting to enter. Chair Carter asked that observers talk with chief judges or notify staff about any concerns. Seeing and hearing no other public attendees wishing to comment, Chair Carter closed the public comment and question period. 3.STATUTORILY-REQUIRED BUSINESS a.Review of Absentee Ballot Applications Chair Carter said he is circulating the revised May 3, 2022 Absentee Meeting Ballot Certification for the signatures of the Board members. He said the revision was due to deferring action on two applications for further review of the voters’ signatures. Chair Carter called on Director Hunter-Havens for her report. The Director presented the 3,456 One Stop early voting applications from May 3 through May 9. Secretary Miller moved approval of 3,456 One Stop applications, second by Member Hunter. Motion carried unanimously, without discussion. Director Hunter-Havens presented 92 absentee-by-mail applications, including 87 civilian and 5 overseas applications. The two applications which were deferred from the May 3 meeting were approved but scanning was deferred until this meeting to allow staff Board Minutes 05/10/2022 P a g e | 3 to follow up with the voters. The Board members began reviewing the applications at 5:22 p.m. When the Board completed their review of the container-return envelopes at 6:05 p.m., Member Bryan requested further review of two envelopes with voters from the same household, questioning whether the ballots were in the wrong envelope. At the direction of the Board, Director Hunter-Havens opened the two envelopes and reported that the right ballots were in the right envelopes but the voters each signed the other envelope. Staff rearranged the meeting room and scanning began at 6:10 p.m. During scanning, the Board addressed the following issue: •A container-return envelope was properly completed, including the signature of a household resident who assisted the voter. The assistant inserted, with the ballot, a copy of a court order that deemed the voter to be incompetent and appointed the witness as the voter’s guardian. Member Bryan questioned whether an incompetent voter is authorized to vote. The Board reviewed the statute on guardianship, NC Gen. Stat. 122C-58, and Numbered Memo 2016-16, Voter Assistance. Member Kemp moved approval of the ballot, second by Member Bryan. Motion carried unanimously. Upon completion of scanning, Chair Carter called the meeting to order at 6:55 p.m. and called on Director Hunter-Havens for her report. Member Kemp moved approval of 90 absentee-by-mail applications as presented, second by Secretary Miller. Motion carried unanimously, without discussion. The Board members signed the certification. 4.GENERAL DISCUSSION Chair Carter called for General Discussion among the Board members, noting two items have been suggested, observers generally and at Northeast Library, and curbside bell at CFCC North Campus. He called for the Board to limit general discussion to thirty minutes. Chair Carter summarized the issues raised over several meetings regarding party observers: •Accessing the staff exit at the Northeast Library to observe curbside voting •Standing six feet back at curbside, making it difficult to hear •Requiring escort by the chief judge to approach the DS200 •Restricting observers to a designated seating area •Malfunctioning printers Chair Carter called on Director Hunter-Havens for her comments. The Director described adjustments needed for the Ballot on Demand printers over the first day or two, Board Minutes 05/10/2022 P a g e | 4 which will be added to the routine maintenance protocols. To her knowledge, no voters were inconvenienced. The Director said curbside voting at the CFCC North Campus site, among others, presents a challenge because the distance between voting enclosure and the curbside area prevents hearing the curbside bell. The solution is to position the curbside operator near the exterior door near the curbside area with line of sight. Unless the observer is also near the door, they are not likely to be aware of the curbside voter until the operator enters the voting enclosure with the voter’s information. In response to a question from Member Bryan, Director Hunter-Havens reviewed the curbside procedures. Member Kemp said he received a complaint from an observer who ran, using the established path, but still missed the entire curbside transaction. He shared that complaint with the Chair and the Director, with the response that it would be addressed after the election. That is too late. Member Hunter said that one solution previously offered is to assign two observers so that one observer is available to cover the curbside area. She expressed her concerns with Board members handling complaints because it may compromise the member’s ability to exercise their role on the Board. Any person can directly file a complaint or report an incident. Sidestepping that process can affect the impartiality of a Board member to consider a complaint as part of the Board. Chair Carter asked about the guideline that the observer must stay outside a six-foot zone around a curbside vehicle. Director Hunter-Havens said it is not a hard and fast rule and can vary to account for ambient noise levels. The observer should coordinate with the Site Lead or a staff member to address such a concern. Chair Carter said another complaint is observers being required to sit in chairs in the designated observer seating area. Director Hunter-Havens said observers are not required to remain in seats. The seating areas are established to allow good line of sight throughout the polling place. While the observer may walk around, they cannot approach equipment or walk through the voting area, but can walk outside and observe the curbside area. The chairs are provided as a courtesy. Member Hunter asked the Director if she has had any reports of this issue from observers? The Director said she has not heard about it from observers or from the Site Leads. Member Bryan asked how the guidelines are developed, noting that the written guidance shows the name of one staff member. Chair Carter said the state Board delegates broad regulatory authority to the staff, in his observation. Member Kemp asked if the Board is suggesting that party observers should communicate their concerns to the Director instead of to the party leaders? Chair Carter said he prefers the observers to work out issues with the Site Leads, and appeal to the Director if needed. The party can also bring such concerns to the Board’s attention. He said his overall observation is that it is not reasonable, and it is not required that precinct officials slow Board Minutes 05/10/2022 P a g e | 5 down or change their processes to accommodate observers. He said the limitations were impressed upon him before he entered as an observer in the past. Chair Carter called on Mr. Rothlein for his response. He said in his experience a site lead prohibited him from approaching the DS200 unless escorted by the Site lead, even if no voters were present. He feels the State Board’s guidance is overly restrictive. The guidance itself says there must be a balance between access for observers with the necessity of protecting private or confidential or security information. He agrees with that statement but feels there is no effort in the guidelines to do that. He said any suggestion that observers are not communicating with the site leads is wrong. He said issues related to curbside stem from the lack of notice to an observer that a curbside voter is waiting. The bell cannot be heard, and the observer is not aware of the curbside operator responding to curbside voter when the observer does not have line of sight to see the curbside area and is not permitted follow the curbside operator within the voting site. Board members discussed several possible solutions to the curbside issue, to find a balance between the observer’s ability to freely observe against the duties of the precinct officials to accommodate observers. Chair Carter recognized Mr. Rothlein for a brief comment. Mr. Rothlein said the other issue with curbside observation is the restriction preventing observers from using the staff door adjacent to the curbside area. He prefers that observers remain inside the voting place and go out as needed for curbside observation. Member Bryan said that is an issue of the layout and suggested staff can make minor adjustments to the layout to better accommodate observers, acknowledging he is not aware of all the parameters that go into designing the layout. Chair Carter said, as a Board member, he is not interested in that level of micromanagement. Director Hunter-Havens said the guidance of the State Board addresses factors to consider: smooth and clear traffic flow for voters; circular movement; accommodation for queueing at the voting stations; provision that the DS200 operator near the exit door to also monitor the buffer zone; consideration for wheelchairs and strollers. She said that curbside was moved during COVID elections to accommodate more voters, alleviate traffic back-up, and not block pedestrians accessing the library. Chair Carter said there are five one stop sites, but 43 precinct sites will be open in this county on Election Day, each with their own unique configuration challenges. A solution that works in one polling place will not work in another polling place. He suggested that the party leaderships ought to be addressing their concerns with the State Board about their guidance for observers. Chair Carter called on Member Kemp to address the question he raised regarding multiple voters in one vehicle voting curbside. Member Kemp deferred that discussion due to the time. Chair Carter said the Board established rules for public comment during the special absentee meetings, limiting comment to the agenda topics and establishing a shorter Public Comment period, but he has not followed that in practice. The next special Board Minutes 05/10/2022 P a g e | 6 meetings will likely involve more absentee ballots and he would like to reserve broader public comment for the regular meetings. 5.ADJOURNMENT Secretary Miller moved that the meeting be adjourned, second by Member Hunter. Motion carried unanimously. The meeting was adjourned at 7:50 p.m. The next Board meeting is scheduled to be held on Monday, May 16, 2022, at 5:00 p.m. in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. APPROVED BY:RESPECTFULLY SUBMITTED BY: ____________________________________________________________ DERRICK R. MILLER RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Board Meeting – 09/13/2022 Page | 1 REGULAR MEETING New Hanover County Board of Elections September 13, 2022 5:15 P.M. ATTENDANCE Members: Oliver Carter III, Chairman Derrick R. Miller, Secretary Russ C. Bryan, Member Lyana G. Hunter, Member Bruce Kemp, Member Staff:Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Jenna Dahlgren, Elections Logistics Specialist Joan Geiszler-Ludlum, Administrative Elections Technician Visitors: Lisa Wurtzbacher, Assistant County Manager; Kemp Burpeau, Deputy County Attorney Public Attendees: Bob Gatewood; Kathryn Hedgepeth, LWV-LCF; Matthew Emborsky, Julius Rothlein, NHC GOP; Sylvia Brock; Cliff Brock; Susanne Werner, NHCDP; Diane Zaryke; Lee Crouch. Virtual Attendees: Nick Craig; Concerned Citizen; Anonymous; Arthur Stock; MB; Derek Bowens; Denise Brown. 1.MEETING OPENING a.Call to Order Chair Carter called the meeting to order at 5:15 p.m. The New Hanover County Board of Elections meeting was held in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. All members were present. Chair Carter introduced the Board Members and staff. b.Preliminary Announcements Chair Carter asked in-person attendees to silence their cell phones, and informed the audience that the meeting is being live streamed and recorded. Board Meeting – 09/13/2022 Page | 2 c.Pledge of Allegiance Chair Carter invited all in attendance to rise and recite the Pledge of Allegiance. d.Approval of Agenda Chair Carter called for a motion to approve the agenda. Secretary Miller noted that the Board tabled the April 12 minutes from their previous meeting, pending edits from Chair Carter. After brief discussion, Chair Carter said he would submit his edits to the April 12 minutes later this week, and those minutes remain tabled for the next meeting. Member Kemp moved to approve the agenda, second by Member Hunter. Member Kemp then moved to amend the agenda to move consideration of the June 30 minutes, to be taken up after New Business is completed, second by Member Bryan. In discussion, Member Kemp and Chair Carter said they submitted proposed edits to the June 30 minutes today. Member Hunter suggested, and Chair Carter agreed, to table the June 30 minutes to give everyone time to review and consider proposed edits. Member Kemp withdrew his motion to amend the agenda. After brief discussion, Member Kemp moved to amend the agenda to move the approval of the June 30 minutes to the next regular meeting, seconded by Chair Carter. Chair Carter called for discussion. Secretary Miller noted the recent discussion among the Board members regarding delays in the submission and approval of minutes. Member Hunter said adhering to deadlines and not waiting until the last minute to submit the minutes and proposed edits would be helpful. Hearing no further discussion, Chair Carter called the vote on the amendment to table the June 30 minutes to the next regular meeting. Motion carried unanimously. Hearing no further discussion, Chair Carter called for the vote on the motion to approve the agenda, as amended. Motion carried unanimously. 2.PUBLIC COMMENT AND QUESTION PERIOD Chair Carter called upon the public in-person and virtual attendees for their comments or questions, limited to two minutes each. Chair Carter acknowledged the ten questions received from Julius Rothlein by email and briefly summarized them for the audience. Chair Carter responded to two questions: observer lists will be submitted to the Director with a copy to the Chair; and the scheduled date for the canvass is November 18 at 11:00 a.m. Chair Carter called on Julius Rothlein for any other comments related to elections. Mr. Rothlein requested a written response to his submitted questions. Mr. Rothlein said the Board needs to review each absentee-by-mail container-return envelope individually and objected to the Board considering a review by sampling the return envelopes. Matthew Emborsky stated his concerns about public access to observe the Logic and Board Meeting – 09/13/2022 Page | 3 Accuracy testing of voting equipment, citing 08 NCAC 04.0307, which reads in part: “Any interested person may observe the testing of the voting system but shall not interfere with or impede the process.” Chair Carter called on Director Hunter-Havens for an update on scheduling and observer access. Noting the space limitations of the testing location and after consultation with the State Board of Elections (SBE) and other county boards of elections directors, the Director plans to live stream the testing process, placing a camera in the same area as the seating for observers. Testing is scheduled to run five to seven days and will be announced on the Board website on or about September 16. Seeing and hearing no other public attendees wishing to comment, Chair Carter closed the Public Comment period. 3.DIRECTOR’S REPORT Chair Carter called on Director Hunter-Havens for her report: a.Financial Update Expenses through the second month of the 2022-23 fiscal year are at or below target, with the election-related costs only now being incurred and encumbered. Costs for temporary election staffing and precinct officials are encumbered but not yet spent. b.List Maintenance Following routine list maintenance procedures, from data reported from the Statewide Elections Information Management System (SEIMS), New Hanover County Board of Elections has removed 900 voters from voter registration rolls, and processed 1,379 new registrations, 1,000 registration forms without changes, and 1,236 registration updates in August. The office is seeing the expected uptick in registration activity in preparation for the general election. Chair Carter called for any questions or discussion. Member Kemp requested a breakdown by category for removal in future reports. Member Bryan reported that he brought something he came across by chance in an address check for another purpose to the Director, showing that two people listed a post office street address as their residence address. Director Hunter-Havens said she is investigating this report after receiving procedural guidance from SBE. Chair Carter said he received a list from an anonymous email address of a list of allegedly duplicate registrations which he reported to the Director. Director Hunter- Havens said county boards are not permitted to investigate based on third-party reports, but the State Board does routine checks each month for duplicate registrations, which the SBE will then refer to county boards for further investigation and follow up. Board Meeting – 09/13/2022 Page | 4 4.NEW BUSINESS a.Chair Carter’s Review of Preparation of Minutes Chair Carter summarized the reasons that minutes are not up to date and asked for discussion of ways to improve the timeliness of the review and adoption of meeting minutes. Suggestions included limiting the minutes to an outline format that recites motions and actions; including only sufficient detail to be transparent on decisions made and retain recordings for public access; capture only the substance of debate; list only action items within a few days of the meeting to track progress and follow up. In response to a request for any legal guidance, Deputy County Attorney Burpeau said that Public Records laws require sufficient detail that the Board decisions are transparent and capture substantive debate, but do not require the same level of detail as a court record for judicial review. b.Chair Carter’s Review of Appointment of Precinct Officials to Fill Vacancies Chair Carter said he requested this item to have discussion of the process of filling precinct official vacancies, but no appointments are scheduled for this meeting. He explained that the statute, N. C. Gen. Stat. §163-41 (b), defines precinct officials to include chief judges, judges, and all assistants. However, he means only chief judges and judges when he uses the term for the purpose of this discussion. Chair Carter said both party chairs have submitted nominations to serve as chief judges and judges. Before addressing appointments to fill vacancies, Chair Carter said the Board needs to know which positions are vacant and asked the Director to distribute the spreadsheet of 11 vacancies identified by Deputy Director Dawkins. Chair Carter called on Deputy Director Dawkins to report on the listed vacancies. The Deputy Director said in about half of the vacancies the Board was unable to agree on an appointment and in the other half, Chair Carter made one-time assignments for the May primary, which expired upon completion of the canvass. Chair Carter outlined the process he used in making appointments of chief judges and judges. First, he identified the party of the vacating appointee and contacted the respective party chair. If the vacating appointee was unaffiliated, there is no party chair to consult; either party or both may suggest nominees. Second, if the party chair’s nominee was a resident of the precinct, he is obligated to appoint that nominee. Beyond that, there are several successive considerations of decreasing priority that he considered. Chair Carter said there is no deadline for party chair nominations to fill vacancies established at this time. Nominations already submitted are under review. He said there appears to be an uptick in interest in September and October preceding an election. He is open to considering anyone who was able to complete the on-boarding process by the September deadline and encouraged the party chairs to continue to submit names. Chair Carter called on Deputy Director Dawkins to address the outlook for additional vacancies. Deputy Director Dawkins reported that she has received about 400 responses Board Meeting – 09/13/2022 Page | 5 to the One Stop availability survey, and the Election Day survey is due September 19. She said she also follows up with the officials who did not respond after the survey closes. The data collection results of both surveys will give her a better idea of who is available for assignment. Member Hunter asked how many people are needed to conduct One Stop Early Voting. Deputy Director Dawkins answered, in a typical election, staffing requires around 300 people. Election Day requires close to 400 people to function smoothly. Chair Carter thanked the staff for all the time and effort staffing requires. He said the Board should have a better picture of staffing needs by their October regular meeting. He said he has received some clarification from NCSBE shortly before the primary that clarified the effect of the Chair’s emergency appointments. When the Board appoints a chief judge or judge, the Board may appoint not more than one non-resident transfer for that precinct. When the Chair fills a chief judge or judge vacancy, the Chair may appoint a second non-resident transfer to the vacant position. Chair Carter asked Director Hunter-Havens to confirm that understanding. The Director said she has asked NCSBE to clarify the weight of residency when the Chair is making emergency Election Day appointments and has not yet received a response. Chair Carter said the Board has time to review that guidance when received. He asked for any additional Board discussion on the Chair’s appointments. Member Kemp asked about the term of a precinct official whom the Chair appoints. He said he understands that those appointments expire at canvass and any successor must be nominated by a party chair, who may not be aware of that requirement. He asked that the party chairs be informed of this responsibility so that they can have names to propose when the need arises. Chair Carter agreed. He noted that making appointments in the absence of the party chairs’ recommendations falls within the general election supervisory authority of the Board and staff. He reminded the Board that any emergency appointments made for this November election will expire at the canvass. There is no need to fill those positions for the remainder of term which expires in July 2023. Only municipal elections are scheduled in 2023. c.Chair Carter’s Review of Appointment of Precinct Assistants Chair Carter said he requested this agenda item because this Board has not appointed precinct assistants, and he understands that prior Boards have not either. He described the roles of precinct assistants in the polling place, governed by NC Gen. Stat. §163-42, following a process very similar to NC Gen. Stat. §163-41 governing appointment of chief judges and judges. He said he has distributed a memo he wrote to the Board and staff and summarized the process: •County party chairs have until thirty days before the date of the election to submit to the Director a list of seven to ten qualified resident precinct assistants, and the Board must appoint assistants from among those nominations by majority vote. •If assistant positions remain, the Board is required to find additional resident assistants for appointment by unanimous vote. Board Meeting – 09/13/2022 Page | 6 •After diligent effort to fill all positions in steps 1 and 2, the Board may fill any remaining positions by appointment of any county resident, regardless of precinct of residence. •There is an additional requirement in the statute, that the Board must appoint an equal number of assistants from different political parties, unless there are insufficient numbers of party-affiliated voters. •The overriding requirement is to have sufficient staff appointed to serve the voters. •Under no circumstances may the Board appoint a majority of non-resident assistants in any precinct. Under no circumstances may the Board appoint assistants all from the same party in any precinct. Chair Carter said the Board can delegate the authority to appoint precinct assistants to the Director, which allows the Director to fill the positions by the time of the Board’s next regular meeting. To that end, Chair Carter reviewed a resolution he has drafted making that delegation of authority to the Director, and called for any discussion. Member Kemp said he understands the process to permit appointing non-resident party- affiliated transfers before considering unaffiliated resident assistants. Chair Carter said that unaffiliated residents enter the process at step 2, same as party-affiliated residents. Chair Carter called on Deputy Director Dawkins for an update on precinct official recruitment. Deputy Director Dawkins said that 510 applications were received in July and August, and credited party recruitment and a tax bill mailer for that response. Of the 510 applications, 153, or thirty percent, completed the on-boarding process by September 2. She thanked Beth Pugh and Jessica O’Neill for their focus and hard work to process the application volume in a short period of time on top of their other work assignments. Member Hunter asked that party chairs submit back up names on their lists to build in sufficient bench strength to fill all positions. Chair Carter read the proposed resolution aloud. Member Kemp moved adoption of the proposed resolution, second by Member Hunter. Chair Carter moved to amend the resolution as follows: remove “and” at the end of the last Whereas clause; remove “further” from the first “Resolved” and “and” from the end of the same Resolved clause; and delete the fifth Whereas which cites an incorrect statutory reference, second by Member Bryan. Chair Carter called for any discussion on the proposed amendment. Member Kemp asked if this delegation would apply only for the general election. Chair Carter said that is his intent, since this Board’s terms expire before the next election will occur. The next Board can decide whether to keep it or change it. Hearing no further discussion, Chair Carter called for the vote. Motion to amend the resolution carried unanimously. Chair Carter called for any discussion of the resolution as amended. Hearing none, Chair Board Meeting – 09/13/2022 Page | 7 Carter called for the vote. Motion to approve the resolution as amended carried unanimously. Chair Carter said he will make the changes, sign the resolution, and send it to the Director. Director Hunter-Havens said it is customary to send an appointment letter by mail to chief judges and judges. She asked if the Board would have any objection of notifying assistants of their appointment by email? The Board had no objection. d.Chair Carter’s Review of Initial Review of Absentee Applications (Container-Return Envelopes) by Staff Chair Carter introduced the next item, saying he added it to the agenda in response to public comments submitted by the New Hanover County Republican Party. The question for discussion is whether it is appropriate for the Board to delegate review and approval of absentee applications to the Director and staff. He said there is agreement that it is appropriate to delegate the initial review upon receiving the absentee ballot applications, addressing initial processing to identify any defects and give notice to voters of curable defects. He said the focus of this discussion is the review of the volume of absentee ballot applications and whether, as has been done in previous elections, the Director and staff should also make the decision to approve or disapprove the application. This Board did not make this delegation in the 2021 Municipal Election or in the 2022 Primary. The previous Board made this delegation in the 2020 Presidential Election. He said this process is followed by a number of county boards and is legally permissible. Discussion of whether this Board wants to follow this process for the 2022 General Election followed. [Chair Carter transferred the gavel to Secretary Miller and excused himself at 6:36 p.m.] Secretary Miller said this process is followed by the North Carolina counties that experience a high volume of absentee-by-mail voting. He distributed a chart he requested from the Director, showing the volume and time distribution of approved absentee by mail ballots by Absentee Review Meeting date in the 2022 Primary. He noted that the Board spent 4.5 hours in reviewing the absentee ballot container-return envelopes for the 2022 Primary and another 4.5 hours in scanning. He anticipates a higher volume in the 2022 General Election, which he sees as a good argument to return to the 2020 delegation practice. Member Hunter asked the expected volume for this election. Director Hunter-Havens said the Board approved 528 applications during the 2022 Primary, with Board taking an average of one minute per envelope. The initial mailing alone of absentee-by-mail ballots for the 2022 General is about 1,700. In the 2018 General Election, approximately 6,000 were mailed and 4,700, or 78 percent, were returned. [Chair Carter returned and resumed the gavel at 6:39 p.m.] Member Hunter asked what a sampling process would look like? Director Hunter- Havens said that would be up to the Board, but in previous elections sampling meant the Board Meeting – 09/13/2022 Page | 8 Director randomly selected container-return envelopes in packets of 25 to 50 in 10 packets, 2 per Board member. In 2020, when 38,000 absentee ballots were returned, the Board approved 27,513 or 72 percent; the highest number approved in a single meeting was 1,803; and in the initial meeting for that election, 9,423 were approved and scanned over two days. The Board members discussed the following views on the proposal and previous experiences: •Wait for additional data on the volume of absentee-by-mail ballots; •Set a threshold which would trigger sampling when the volume for a meeting reaches or exceeds that threshold; •Consider the option to work in two bipartisan teams as suggested in NCSBE Numbered Memo 2020-25; •Adjust meetings to start earlier, meet longer or add meetings. The Board discussed the requirements of NC Gen. Stat. §163-230.1 (e) and (f) and whether those requirements are delegable to staff pursuant to §163-35(d) regarding Board review of absentee ballots. Chair Carter thanked the Board members and Director Hunter-Havens for the productive discussion and proceeded to the next item on the agenda. e.Chair Carter’s Review of Logic & Accuracy Testing Chair Carter said that he requested this item to address the several Public Comments and emails regarding public notice and access to the voting equipment testing process. Director Hunter-Havens said, while 08 NCAC 04.0307(b) allows public observation of the process, that observation must be balanced with the requirement to maintain the security and integrity of the voting equipment. The Director explained the logistical challenges posed by the testing location and, to be responsive to the public, that public notice of the dates and times of testing will be posted on the County Board of Elections website and livestreaming will be available. She answered questions from the Board members about the process, layout, and staffing. Chair Carter said Director Hunter-Havens has responded to the requests for more notice of testing, how many may observe the process, and what may be observed by providing more notice and offering livestreaming. He observed that no policy this Board can adopt will convince skeptics and conspiracy theorists. Observers have a right to see that testing has taken place, but not a right to observe every detail of the testing process. Member Hunter asked the Director how many people have requested to observe the testing. Director Hunter-Havens said she has received two requests to observe the voting equipment testing, from Mr. Rothlein and Mr. Emborsky, adding there may be more requests coming, and she wants to be responsive to the interest. Chair Carter added that the additional publicity and access allow unaffiliated voters to participate. Board Meeting – 09/13/2022 Page | 9 5.GENERAL DISCUSSION Member Kemp reminded Chair Carter of his commitment to see the Paynter Room set up to allow the observers to use the staff door for access to the curbside voting area. Chair Carter said he does not recall making such a commitment and asked to add that item to the October 11 agenda. 6.ADJOURNMENT Chair Carter moved to adjourn the meeting at 7:33 p.m., second by Member Hunter. Motion carried unanimously. The next Board meeting is scheduled to be held on October 4, 2022, at 5:00 p.m., at the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC, for the purpose of reviewing absentee ballots. APPROVED BY: RESPECTFULLY SUBMITTED: ____________________________________________________________ DERRICK R. MILLER RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Special Meeting New Hanover County Board of Elections October 11, 2022 Subject: Member Bryan’s request to discuss the door usage by observers at the Northeast Library Summary: At the Northeast Library voting site, observers use the entrance door to enter and exit the one-stop site to observe the curbside voting area. The curbside coordinator uses the staff only door at the back of the enclosure in the voting booth area of the one-stop site to assist curbside voters. Board Action Required: Discuss as Necessary Item # 3b Special Meeting New Hanover County Board of Elections October 11, 2022 Subject: Chief Judge and Judge Appointments Applicable Statutes and/or Rules N.C. Gen. Stat. § 163-41 Summary: All precincts are required to have one Chief Judge and two Judges on Election Day. Registered voters in New Hanover County may be appointed as chief judges or judges by the county board of elections or administratively assigned by staff in the absence of recommendations by party chairs and/or board members. The most important qualification of a chief judge or judge is that they are residents of the precinct in which they are appointed to serve. Per NC Gen. Stat. § 163-41, in no instance shall the county board appoint nonresidents of a precinct to a majority of the three judge positions. Party affiliation is also an important criterion. Per statute, wherever possible, the county board shall assure that no precinct has a chief judge and two judges who belong to the same political party. County boards may appoint chief judges and judges from any of the five political parties in North Carolina (Democratic, Republican, Unaffiliated, Green, and Libertarian). There is not a statutory requirement that a certain number of judges must be Democrats or Republicans, or that only Democratic or Republican judges can be appointed. Below is a recommended order of operations the county board of elections should use for appointing chief judges and judges, including those recommended by party chairs and county board of elections staff: 1. For each chief judge position, each party chair recommends two residents of that precinct. 2. For the two judge positions, each party chair recommends two residents of that precinct . 3. If the party chairs submitted this list of names in a timely manner, the county board MUST appoint chief judges and judges from that list. 4. If the lists from the party chairs was submitted timely but contain names of voters who are NOT residents of the precinct, those lists are insufficient. The county board MUST appoint the names of those who ARE residents of the precincts. 5. By unanimous vote, the county board of elections may approve recommendations by staff to appoint a nonresident as a chief judge or judge so long as these recommendations meet all other statutory requirements. 6. The county board of elections must then, by unanimous vote, appoint as chief judge or judge names of voters in the following order: a. Those who were NOT recommended by the party but who ARE residents of the precinct (and must “diligently” seek residents of the precinct). b. Those who were recommended by the party but ARE NOT residents of the precinct (this includes names that the party did not submit by the deadline but may have recommended after that time – the statute says the county board “where possible” must seek and adopt the recommendation of the county chair of the party affected). Item # 2 Item # 4a Document/s Included: Chief Judge and Judge Nominations for 2022 General Election Board Action Required: Discuss as necessary and action required Special Meeting New Hanover County Board of Elections October 11, 2022 Subject: Precinct Assistant Appointments Applicable Statutes and/or Rules N.C. Gen. Stat. § 163-42; NHC Memo “Appointment of Precinct Assistants per N.C. Gen. Stat. § 163-42 Summary: Each county board of elections is authorized, in its discretion, to appoint two or more assistants to each precinct to assist the chief judge and two judges. Each precinct typically has between six and twelve precinct assistants. Like other election officials, precinct assistants must be registered voters in the county who meet all statutory requirements. Residency and party affiliation are the two most important factors that must be considered when making precinct assistant appointments. County boards are required to make a good faith effort to appoint an equal number of precinct assistants from each political party. Strict parity may not be attainable if there is an insufficient number of voters from a specific party in the county who are willing and qualified to serve in a specific precinct. Voters from any one of the five political parties in North Carolina may be appointed as precinct assistants. As with the chief judge and judge appointments, the county board shall not appoint nonresidents to the majority of precinct assistant positions. Below is the recommended order of operations the county board of elections may use for appointing precinct assistants: 1.The Board must make the initial round of appointments from the recommendations of resident precinct assistants submitted by party chairs up to 30 days prior to Election Day, which is October 8th for the 2022 General Election. The Board is not required to pick all names on the lists but may pick and choose which nominees to appoint as resident precinct assistants. In making these selections, party parity should be achieved whenever possible, even if the county board appoints less than all the precinct assistants nominated by a specific party chair. The county board has some discretion to review other criteria in addition to residency and party affiliation that might render a specific nominee as unfit for service in the role of precinct assistant. The county board, by resolution, has delegated the authority to appoint resident precinct assistants nominated by party chairs to the Elections Director provided that the Director abides by the rules set forth by statute. 2.The Board may appoint by unanimous vote resident precinct assistants who were not nominated by party chairs when the recommendations of the party chairs were insufficient. The Director and staff may make administrative recommendations of individuals they have identified as being willing and able to serve but who were not recommended by a party chair. 3.The Board may unanimously appoint nonresident precinct assistants when the recommendations of party chairs are insufficient and when the board has made diligent efforts to appoint resident precinct assistants. Item # 2 Item # 4b Document/s Included: Precinct Assistant Nominations for the 2022 General Election Board Action Required: Discuss as necessary and action required To: New Hanover County Board of Elections Rae Hunter-Havens, NHC Elections Director From: Oliver Carter III, NHC Board of Elections Chair Date: September 9, 2020 Re: Appointment of Precinct Assistants per N.C. Gen. Stat. § 163-42 MEMORANDUM I. Introduction This memo summarizes the process for appointing Precinct Assistants. This memo first describes the statutory process by which Precinct Assistants are to be appointed. Next the memo reviews the process that has evolved in New Hanover County over decades and that has been followed in recent elections. The third portion of this memo describes the process currently in place for appointing Precinct Assistants for the 2020 general election. Fourth, the memo describes the process to be followed when a vacancy arises in the office of Precinct Assistant. II. Precinct Assistants Aid the Chief Judge and Judges and Help Run the Polling Place Precinct Assistants are election officials who serve under the three Judges in each precinct. Precinct Assistants perform almost all of the work required to run a polling place. They check in voters, confirm that the voters are registered, process the voters’ “Authorization to Vote” forms, issue ballots, direct voters throughout the process, assist voters when questions arise, direct them to insert the ballot into the scanner, give them an “I Voted” sticker, and perform myriad other administrative functions throughout the day. Each polling site generally has between six and twelve1 Precinct Assistants at any given time, depending on the expected number of voters and the experience level and skill sets of the Precinct Assistants at that site. 1 The CBE may appoint “two or more” PAs. N.C. Gen. Stat. s. 163-42(a). 2 III. N.C. Gen. Stat. § 163-42 Sets Forth the Process for Appointing Precinct Assistants A. The Five Overarching Statutory Rules for Appointing Precinct Assistants 1. The Board may appoint two or more PAs per precinct Section 163-42 sets forth five fundamental rules regarding PAs2. The first rule is the number of PAs. By law, the CBE may appoint “two or more assistants for each precinct to aid the chief judge and judges.” N.C. Gen. Stat. § 163-42(a). 2. PAs must be qualified voters of New Hanover County Second, “Assistants shall be qualified voters of the county in which the precinct is located.” Id. The meaning of the word “qualified” is not absolutely clear, but it most likely refers to the minimum baseline requirements for all POs that are set forth in 163-41: in addition to being registered voters in NHC, they must be able to read and write and must be of good repute. N.C. Gen. Stat. § 163-41. They may not be candidates, relatives of candidates, or Party Officers. Id. 3. Within each precinct, the Board must appoint an equal number of PAs from each political party or must at least make a good faith effort to do so Third, “an equal number of [PAs] shall be appointed from different political parties, unless the requirement as to party affiliation cannot be met because of an insufficient number of voters of different political parties within the county.” Id. This third requirement—the same number of Democratic PAs and Republican PAs within each precinct—is the starting point for this rule; the best practice and highest goal is absolute parity in the partisan composition of the PAs within a precinct. At the same time, this rule contains an important caveat: “unless the requirement as to party affiliation cannot be met because of an insufficient number of voters of different political parties within the county.” Id. Although the statute refers to “an insufficient number of voters of different political parties within the county,” we interpret this to mean an insufficient number of voters within the county who are willing and able to serve as PAs. This is the only logical construction of this phrase—the number of voters in a party is utterly irrelevant to the appointment of PAs; it is the number of PAs from that party with which the statute is concerned. If we have too few PAs from one party or the other who can work this year, then we might not be able to achieve strict parity. The third requirement is qualified further by the penultimate sentence of subsection 163- 42(b), which provides that “the county board shall assure, wherever possible, that no precinct has precinct officials all of whom are registered with the same party.” N.C. Gen. Stat. § 163-42(b).3 2 We exclude from this memo the rule regarding precincts with less than 500 voters as we have no such precincts. 3 It is difficult to discern whether the use of the term “precinct officials”—a term defined in 163-41 to include Chief Judges, Judges, and Precinct Assistants—is deliberate in this instance. Read literally, the standard set forth by this 3 Thus, if a County Board makes a good faith effort to achieve strict parity but comes up short, then it is excused from strict compliance by subsection (b). Unaffiliated voters may be appointed as PAs. The appointment of unaffiliated PAs may help achieve partisan parity. For example, in a precinct with eight PAs, the Board may appoint three PAs who are Democrats, three PAs who are Republicans, and two PAs who are unaffiliated. In precincts where one Party Chair has recommended more names than the other Party Chair, the appointment of unaffiliated PAs may play a crucial role in achieving partisan balance. These unaffiliated voters might also help us comply with the residency requirement, discussed below. 4. A majority of the PAs in each precinct must be residents of that precinct The fourth overarching rule is a prohibition: “In no instance shall the county board appoint nonresidents of the precinct to a majority of the positions as precinct assistant within a precinct.” N.C. Gen. Stat. § 163-41(b). There is no exception or caveat to this rule—it is ironclad. However, this provision only applies to appointments by “the county board”, not to appointments by the Chair in order to fill vacancies. 5. PAs serve for one election only Unless otherwise specified, PAs serve “for the particular primary or election for which they are appointed….” N.C. Gen. Stat. § 163-42(d). In other words, they serve a term of only one election. Therefore, PAs must be appointed by the County Board before every primary election, before every general election, before every municipal election, and before any other type of election. The Board may appoint PAs for longer terms, but it must do so explicitly. Id. B. The Statutory Process for Appointing Precinct Assistants 1. When Party Chairs timely recommend resident PAs, the Board must make the initial round of appointments from those recommendations The first step is for the County Party Chairs “to recommend from three to 10 registered voters in each precinct for appointment as precinct assistant in that precinct.” N.C. Gen. Stat. § 163-42(b). If the Board receives these recommendations by the 30th day before the election (this year it is October 8, 2022), then it must make appointments “from the names thus recommended.” Id. The prepositional phrase “from the names thus recommended” is important. This phrase means that the Board is not required to appoint all of the names recommended by the Party Chairs, even when all of those names are qualified resident voters. In other words, the Board may pick and choose which of the recommended people it will appoint as PAs. rule would not prohibit a situation in which all of the PAs within a precinct were members of the same political party so long as one of the Judges or the Chief Judge was not a member of that party. 4 There are several good reasons why the statute provides the Board with this flexibility. First, the Party Chairs together might nominate more PAs for a precinct than the Board needs. Each Party Chair may recommend up to 10 people per precinct. If both Chairs did so, there would be 20 PAs nominated for a single precinct. This is more PAs than most precincts need; indeed, upon information and belief, there is not a single precinct in NHC that requires 20 PAs, even in a presidential election4. Second, if one Party Chair nominates more PAs in a given precinct than the other Party Chair nominates, then the Board can only achieve partisan parity by appointing less than all of the PAs recommended by the Party Chair who submitted the greater number. For instance, if the Democratic Party Chair recommended two PAs for a precinct and the Republican Party Chair recommended four names for that precinct, then it appears that the Board could only comply with the requirement for strict parity by appointing less than all of the PAs nominated by the Republican Party Chair. Third, when the Party Chairs between them nominate more than enough PAs for a certain precinct, the statutes vest some discretion in the Board to not appoint a person who has been recommended by a Party Chair. There could be times when a Party Chair recommends an individual who meets the minimum baseline qualifications but lacks certain other skills that the Board deems necessary for the position. Similarly, there could be times when a Party Chair recommends a person who is otherwise qualified but has certain character traits that, in the view of the Board, render the person unfit for service as a Precinct Assistant. The Board makes this initial round of appointments by majority vote. Accordingly, the Board may delegate this authority to the Director by majority vote. So long as the Director abides by the rules set forth in the statutes, she may exercise the authority delegated to her by the Board in order to make the initial round of appointments of qualified resident PAs. The Director may not appoint any PAs who have not been recommended by a Party Chair unless that authority is delegated to her by the entire Board unanimously. 2. Only When the Recommendations of the Party Chairs Are Insufficient May the Board Appoint Resident PAs Who Were Not Recommended “If the recommendations of the party chairs for precinct assistant in a precinct are insufficient, the [CBE] by unanimous vote of all of its members may name to serve as precinct assistants in that precinct persons who were not recommended by the party chairs.” N.C. Gen. Stat. § 163-42(b). Accordingly, the second step in the process of appointing PAs is to consider those individuals who reside in a precinct but were not nominated by the Party Chairs. Step 2 is when the Director and her staff may propose to the Board the names of people whom the Director 4 NHC requires PAs to work full days even though it could choose to allow PAs to work less than a full day if it wished, N.C. Gen. Stat. s. 163-42(a). If PAs were working less than a full day, it is conceivable that one precinct could need 20 PAs. 5 and her staff have identified as being willing and able to serve but who were not recommended by either Party Chair. Although the statute says that the Board “may appoint” Precinct Assistants under this step, the language of Step 3 suggests that the Board’s discretion under Step 2 is circumscribed. The Board may only make appointments under Step 3 after it “diligently” seeks to fill the positions by following Step 2. The use of the word diligently in this context indicates that the Board must have a clearly identifiable and relevant reason for refusing to appoint one or more individuals who are eligible under Step 2 but nonetheless proceeding to Step 3. Last but not least, appointments under Step 2 may only be made unanimously. 3. The Board May Only Appoint Nonresident PAs When the Recommendations of the Party Chairs Are Insufficient and When the Board Has Made Diligent Efforts to Appoint Resident PAs Again, the Board may only proceed to appoint PAs under Step 3 when it has “diligently” sought to fill all of the positions by appointments under Step 2. Under Step 3, the residency requirement is waived, and the Board may appoint any qualified person who resides anywhere in the county. They Board may only do so by unanimous vote. IV. With the Acquiescence of Both Political Parties, Recent Practice Has Departed from Strict Compliance with the Statutes Governing the Appointment of PAs A. In Recent Years, the Political Parties Have Not Nominated Precinct Assistants For many years now, the Party Chairs in New Hanover County apparently have not exercised their prerogative to recommended individuals to serve as Precinct Assistants. The Party Chairs have regularly nominated individuals for the offices of Chief Judge and Judge but not for the office of Precinct Assistants. B. In Recent Years, the Director Has Handled the Process of Appointing and Assigning Precinct Assistants Lacking any nominations from Party Chairs, the Director has quite properly taken responsibility for recruiting, appointing, and assigning individuals who are willing to serve as Precinct Assistants. Many of these individuals have served in numerous elections over a long period of time. These individuals are referred to as being “in the pool” of potential election officials. Some of them serve in every election or almost every election. The Director’s practice has previously been to email those people who are in the pool of potential election officials one or more “availability surveys” before each election in order to gauge who is interested in serving and in what capacity—OSEV worker, Precinct Assistant, Judge, or 6 Chief Judge.5 Based on the responses to the availability survey, the Director has assembled teams in each precinct who work well together and possess among them all of the skills that are necessary to make sure that a polling site will is well run. Once her teams are assembled, the Director has then either asked the Board to ratify the teams of Precinct Assistants or has inferred the Board’s approval. C. The De Facto Process for Appointing Precinct Assistants That Evolved in New Hanover County Has Served Everyone Well for Many Years This has been a win-win-win-win arrangement for everyone. The County Party Chairs have excused themselves from the laborious and often futile task of recruiting Precinct Assistants before each and every election. The Board has been excused from investing its limited time in this matter. The Director and her staff have had a free hand in assigning election officials based on their skill set rather than their partisan affiliation or the precinct in which they reside. And perhaps the voters have won most of all, for they have enjoyed election officials in every precinct who were assigned based on their skill set, the needs of the precinct, and the officials’ own preferences rather than on a partisan basis. In this arrangement we see the elevation of professionalism over partisanship. V. This Year the Party Chairs Will Recommend Precinct Assistants A. The Statutory Deadline for Party Chairs to Submit Their Recommended Precinct Assistants to the Board is October 8, 2022 The statutory deadline for those recommendations is 30 days prior to the election—in this case, October 8, 2022. N.C. Gen. Stat. § 163-42(b). Pursuant to this law, County Party Chairs may nominate individuals to serve as Precinct Assistants up until this deadline. As explained above, if a County Party Chair nominates qualified residents of the precinct on or before this deadline, the Board is required to appoint Precinct Assistants from the names submitted by the Party Chairs. The Board will gladly accept recommendations from the Party Chairs before the deadline in order to help the Director and the Board finalize the appointments as early as possible. 5 While Chief Judges serve for a two-year term per statute, they have previously been afforded wide latitude as to whether they actually work in every election during their term; a Chief Judge or Judge who has opted out of working in a particular election has not previously been deemed by the Director to have vacated the office, and under this reasoning there has been no need for a new Chief Judge or Judge to be appointed. This approach of “administratively assigning” Chief Judges, Judges, and Precinct Assistants has made it much easier for the Director and her staff to create teams of precinct officials at each precinct who work well together and possess among them all of the necessary skills in order to assure that a polling site will is well run. 7 B. To Allow Time for Training and Processing, No Additional People Will Be “Onboarded” After September 2, 2022 The Director and her staff become very busy with election-related duties beginning 2-3 months before an election. Generally speaking, the bigger the election, the busier they are. In the month or so leading up to an election, the Director and her staff are continuously working overtime in order to make sure that the OSEV sites are open and operational on day one and then that the polling places are all ready to go first thing in the morning on Election Day. The Director reports that these duties are so extensive that they leave no time for onboarding additional election officials. In order to manage her time and her staff’s time effectively, the Director has determined that no additional individuals will be “onboarded” after September 2. This means that nobody else may be brought into “the pool” of potential election officials after September 2. If a qualified voter comes forward during September and offers to serve as a Precinct Assistant, they will not be eligible to do so because the Director and her staff do not have the capacity to “onboard” that person and add them to the pool. 1. What is the “Administrative Onboarding” Process? The administrative onboarding process consists of at least six steps: • First, a qualified voter submits an application which is processed by the Director and her staff and/or New Hanover County HR; • Second, they attend an information session presented by the Director or her staff; • Third, they complete a skills assessment administered by the Director or her staff; • Fourth, they submit required documentation to NHC Human Resources6, including: i. Form I-9 and supporting documentation to establish their citizenship, ii. Form W2 for required tax reporting information, iii. Direct Deposit information so that they may be paid by the County; • Fifth, upon information and belief, the County conducts a background check; and • Sixth, they attend a training session conducted by the Director or her staff. 2. What training are Precinct Assistants required to complete? The training session is required by law. N.C. Gen. Stat. § 163-82.24(a) (“The [SBE] shall promulgate rules for the training of precinct officials, which shall be followed by the county boards of election.”); see also N.C. Gen. Stat. § 163-46 (“The…director…shall conduct an instructional meeting prior to each primary and general election….”) 6 The NHC Board of Elections has entered into a Memorandum of Understanding with New Hanover County (“the County”). Pursuant to the MoU, the County handles most of the Board’s human resources responsibilities. 8 The SBE has issued at least one rule regarding such training: “The…[Board] shall conduct an instructional meeting before any primary or election to instruct the precinct officials in the use of the voting system. … The training shall be sufficient such that the precinct officials shall be qualified to instruct the voters on the use of the voting system.” 08 NCAC 04 .0305. There might be other statutes and regulations governing the training received by precinct officials, and upon information and belief, the actual training that PAs in NHC receive also covers policies and procedures other than the use of the voting system. 3. What other administrative onboarding steps must Precinct Assistants complete? Currently, all potential precinct officials must submit their paperwork to New Hanover County Human Resources before they are “in the pool” of potential election officials. County HR struggles to accommodate the Board’s needs in the months before the elections, and potential election officials are only allowed to come to County HR at certain times of day and on certain days of the week. A bottleneck exists in this step of the onboarding process. 4. The Board is legally obligated to pay Precinct Assistants, and therefore the Board is required to comply with all applicable labor and employment laws The law in North Carolina requires Chief Judges, Judges, and Precinct Assistants to be paid. N.C. Gen. Stat. § 163-46 (“Assistants, appointed pursuant to G.S. 163-42 shall be paid…for their services….” (emphasis added)). The legal requirement for the Board to pay Precinct Assistants triggers several other legal requirements. First, pursuant to the Immigration Reform and Control Act of 1986, the County HR must verify every employee’s citizenship status and eligibility to work, generally through the employee’s submission of a Form I-9 under penalty of perjury and the County’s review of the I-9 and required identification. 8 U.S.C. § 1324a; 8 CFR § 274a.10; 28 U.S.C. § 1746. Second, each employee must complete and submit the appropriate wage withholding forms, generally Form W- 9, Form W-4, and Form NC-4. See, generally, N.C. Gen. Stat. Ch. 96, Employment Security Law; 04 NCAC Ch. 24. Further, the Memorandum of Understanding between the Board and the County requires the potential PAs to be processed through NHC Human Resources. The County procures workers compensation and general liability insurance for all employees, including Precinct Assistants. If a Precinct Assistant were not covered by that insurance, and if an accident happened, the Board of Elections could incur substantial liability. VI. When a Vacancy Arises in the Office of Precinct Assistants, the Chair Appoints a New Precinct Assistant to Fill the Vacancy A Precinct Assistant is one type of Precinct Official. N.C. Gen. Stat. § 163-41(b). Chief Judges and Judges are the other types of Precinct Officials. Id. The process for appointing a new 9 Precinct Assistant to fill a vacancy is the same as the process for appointing a new Chief Judge or Judge to fill a vacancy in one of those offices. N.C. Gen. Stat. § 163-41(d). The process is similar to the process by which the Board appoints Precinct Assistants in the first place: A. First, the Board Chair asks the County Party Chair for nominations. B. If the County Party Chair nominates a qualified voter who resides within the precinct, the Chair must appoint that person. C. If the County Party Chair nominates a qualified voter who does not reside within the precinct, the Board Chair may appoint that person but is not obligated to. D. If for some reason the Board Chair cannot consult with the Party Chair, or if the Party Chair nominates a nonresident whom the Board Chair declines to appoint, then the Board Chair must still appoint “a person who belongs to the same political party as that to which the vacating official belonged when appointed.” VII. Conclusion The less formal process that evolved in New Hanover County served our voters well for a considerable period of time. However, the County Republican Party has recently experienced an increase in the number of its members who are willing to serve as Precinct Assistants, and it has asked that they be appointed in the manner set forth in the statutes. It is therefore appropriate for our Board to return to the statutory process for appointing Precinct Assistants. Special Meeting New Hanover County Board of Elections October 11, 2022 Subject: Review of Absentee Ballot Applications Applicable Statutes and/or Rules N.C. Gen. Stat §§ 163-229(b) and 163-230.1(f), NCSBOE Numbered Memos 2022-11, 2021-07, 2021-03, 2020-29 and 2020-25 Summary: By statute, county boards of elections are required to meet beginning on the fifth Tuesday prior to each election to review and take action on absentee ballot applications. At each absentee board meeting, the board should either approve or disapprove the absentee applications assigned to that meeting date. All absentee ballot applications for the 2022 General Election must include the following: 1. The voter’s certification of eligibility to vote the enclosed ballot. 2. The certification of two witnesses, to include their residence address, or one public notary. 3. The certification, to include residence address, of any individual that assisted a voter in accordance with N.C. Gen. Stat. §163-226.3. Per Numbered Memo 2021-03, there are three different types of deficiencies associated with absentee ballot applications, each of which corresponds to a specific course of action: deficiencies that can be cured by sending the voter a cure certification, deficiencies that require the ballot to be spoiled, and deficiencies that require additional board review and action. Deficiencies that can be cured with a certification: • Missing voter signature • Voter signed in the wrong place Deficiencies that require the ballot to be spoiled: • A witness or assistant did not print name (If the witness or assistant’s signature is legible such that the name can be determined, the absentee ballot application is not deficient and the ballot should not be spoiled, absent any other deficiency) • A witness or assistant did not print address (Failure to print witness zip code does not invalidate the application. Failure to include the city or state in the address does not invalidate the application if the county board of elections can determine the correct address) • Missing witness or assistant signature • Witness or assistant signed in place of voter signature (Otherwise, if all witness or assistant information is present on the application but not on the designated lines, then the application is not deficient, and the ballot should not be spoiled absent any other deficiency) • If container-return envelope arrives at the county board of elections office unsealed or appears to have been opened and re-sealed • The envelope indicates the voter is requesting a replacement ballot Item # 2 Item # 4c Deficiencies that require board action: • Deficiency is first noticed at a board meeting • No ballot in a container-return envelope • More than one ballot in a container-return envelope • Two voter’s ballots and container-return envelopes are switched Due to recent federal court order, voters, including those in assisted living facilities, who need assistance voting absentee by mail due to their disability may now receive assistance from any person they choose. Under the Americans with Disabilities Act, a disability is a physical or mental impairment that causes someone to be substantially limited in a major life activity. Under this federal order, a voter who is a patient or resident in a covered facility and needs assistance due to a disability may also receive assistance from an elected official, political party officeholder, or candidate. If voters in covered facilities do not need assistance due to a disability, then they may still request assistance from a near relative, legal guardian, or a MAT member. If an individual who belongs to one of these three categories is not available within seven calendar days of a voter’s request, then the voter may get assistance from anyone except: an owner, manager, director, or employee of the hospital, clinic, nursing home, or rest home where the voter is patient or resident; an elected official, candidate, or office holder in a political party; or a campaign manager or treasurer for a candidate or political party. If a voter is physically unable to sign or make their mark due to a disability, the person providing assistance with the ballot should write in the signature line, “Disabled-cannot sign” and complete the voter assistant certification on the application. In addition, the assistant may return a cure certification for a voter who needs assistance due to a disability. Since the board has delegated so much of the administrative detail of the election functions, duties, and work of the Board to the Elections Director, the staff are responsible for completing many of the administrative duties associated with by mail voting. These duties include, but are not limited to, the following: • After intake, inspecting the absentee ballot applications on each container-return envelope and making an initial determination as to whether the envelope was properly executed. If a deficiency exists, staff follow the process outlined in Numbered Memo 2021-03 to either send the voter a cure certification or spoil the ballot and reissue the ballot with a notice explaining the county board’s actions. • Performing an initial sort of ballot applications into categories upon initial review and presented those recommendations to the board at each meeting. Those categories may include designations for recommended approval, recommended disapproval, envelopes awaiting a cure certification, and those that staff have questions about that require deliberation by the board. • Verifying the list of ballot applications against the absentee pollbook. If the volume of by-mail ballots increases significantly, the county board may consider other ways to streamline this process to expedite the review of absentee ballot applications. The county board may authorize staff to use a bipartisan team(s) of staff members to duplicate UOCAVA ballots that cannot be read by the tabulator outside of an absentee meeting, provided that all requirements outlined in Numbered Memo 2020-25 are followed. Another way to expedite this process is for the county board to authorize the use two bipartisan teams of board members to review the applications during each meeting. The board by majority vote may also accept staff’s recommendations for approval without reviewing all absentee applications (Numbered Memo 2020-25). However, this delegation must include a process for the board to spot-check the envelopes to ensure accuracy and consistency. The review of certain types of applications cannot be delegated to staff members. Specifically, county board are required to individually review all applications that 1) have been recommended for disapproval by staff, (2) have a cure certification associated with that application, or (3) where staff need further guidance from the board as to whether the application was properly executed. At the meetings when ballots are optically scanned, a bipartisan duplication team is required to be present in the event a ballot needs to be duplicated to be successfully scanned by the central scanner. The scanning cannot begin until a majority of the board members and at least one board member from each party is physically in attendance. If it is not possible to scan all absentee ballots approved at a meeting, the board may recess the meeting to a later date, which could be the next absentee meeting. If this action is taken, county boards should send out a special meeting notice as soon as possible for the reconvened meeting. The 48-hour requirement for special meeting notices is not required for the reconvened meeting. At the end of each absentee meeting, all absentee applications and ballots should be reconciled with the number of ballot applications approved by the board equal in number to the number of ballots scanned by the tabulator. Document/s Included: NCSBOE Numbered Memos 2022-11, 2021-07, 2021-03, 2020-29 and 2020-25 , Absentee Poll Book and Reconciliation Log Sheet (Provided at meeting) Board Action Required: Discuss as necessary and action required Special Meeting New Hanover County Board of Elections October 11, 2022 Subject: General Discussion Summary: This is an opportunity for discussion on other elections-related matters not included in the meeting agenda. Board Action Required: Discuss as necessary Item # 5