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Board Meeting Agenda Packet 10-04-2022 MEETING AGENDA Date: October 4, 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 Visitor(s):Lisa Wurtzbacher, Assistant County Manager 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 • 10-minute limit total 3. Old Business a. Approval of Minutes (4/12/22) b. Member Kemp’s request to discuss Num. Memo 2020-25 and the Board’s authority to delegate to staff the approval of absentee container-envelopes not individually reviewed by the board 4. Statutorily-Required Business a. Chief Judge and Judge Appointments b. Precinct Assistant Appointments c. Review of Absentee Ballot Applications 5. Adjournment *Agenda packets are sent via email in advance of meetings. Special Meeting New Hanover County Board of Elections October 4, 2022 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Item # 1d Draft Agenda Packet Special Meeting New Hanover County Board of Elections October 4, 2022 Subject: Public Comment Summary: This is an opportunity for members of the public to provide comment on elections-related matters on this agenda. Each commenter will be limited to two minutes with a ten-minute limit total for all public comments. Board Action Required: Discuss as necessary Item # 2 Item # 2 Draft Agenda Packet Special Meeting New Hanover County Board of Elections October 4, 2022 Subject: Approval of Minutes Applicable Statutes and/or Rules N.C. Gen. Stat. §§ 163-31(e) and 143-318.10(e) Summary: The revised draft minutes, including Chair Carter’s edits in red, of the 4/12/22 meeting are included your packet for review and approval. Board Action Required: Staff recommends approval Item # 3a Draft Agenda Packet Board Minutes 04/12/2022 Page | 1 SPECIAL MEETING New Hanover County Board of Elections April 12, 2022 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 Jenna Dahlgren, Elections Logistics Specialist Joan Geiszler-Ludlum, Administrative Technician Jessica O’Neill, Elections Program and Outreach Coordinator Beth Pugh, Elections Specialist Visitors: Sheryl Kelly, Assistant County Manager Public Attendees: Bob Gatewood; Mike Pascarell; Matthew Emborsky, GOP; Julius Rothlein, NHC GOP. Virtual attendees: Loraine Buker; Tyler Daye. 1.MEETING OPENING a.Call to Order Chair Carter called the meeting to order at 5:02 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. b.Preliminary Announcements Chair Carter reminded the audience to silence their cell phones and that the meeting is being recorded and live streamed. c.Pledge of Allegiance Chair Carter invited all in attendance to rise and recite the Pledge of Allegiance. Draft Agenda Packet Board Minutes 04/12/2022 Page | 2 d.Approval of Agenda Member Kemp moved that the agenda be approved as submitted, second by Member Hunter. Motion carried unanimously. e.Approval of Minutes Member Kemp moved that the minutes of the 02/15/2022 Board meeting be approved as corrected, second by Member Hunter. Motion carried unanimously. 2.PUBLIC COMMENT AND QUESTION PERIOD Chair Carter called on the public in-person attendees for their comments or questions regarding matters before the Board, limited to two minutes each, and a total time of twenty minutes maximum. He reminded speakers to yield to the Board Members or Director to respond to the question. Chair Carter said he has received comments from Matthew Emborsky by email on March 24.He asked Mr. Emborsky if he wanted to speak to the emailed questions. Mr. Emborsky asked about accessing One Stop results by precinct for the 2020 election. He said these are available on the State Board website through 2018 but not for 2020. He feels it is important to have those results available by the time election results are certified on the canvass date. He said he observed the testing for the DS-850 yesterday and complimented the Director and staff for their responsive answers to questions and explanations of the process. His feedback from observing testing is to request earlier and wider notice of testing dates. Notice is sent to the party chairs, but he is concerned that there is no notice to unaffiliated voters. He is concerned that Numbered Memo 2022-03 addresses mask mandates for the upcoming primary and general elections, specifically paragraphs 5, 6, and 8, which raise equal protection concerns with differences between One Stop workers and election officials. He noted a lot of attention has been given to the presence of observers during the opening of the polls. While there is progress, a slight concern remains with the instructions to poll workers and observers where the wording appears more restrictive than the previous guidance. Director Hunter-Havens said the most recent guidance is what will be followed during the primary. Member Kemp said he does not recall seeing any authority for members of the public to observe the opening and closing of the polls in the Director’s recent email of a week ago. He wondered if something more formal is needed. Chair Carter asked if he meant something more than the two-sided observer’s document. Member Kemp said something similar is needed for the public who want to watch the opening and closing of the polls. The updated guidance is treating observers as members Draft Agenda Packet Board Minutes 04/12/2022 Page | 3 of the public for purposes of entering to see the opening and closing. Director Hunter- Havens said the revised guidance says that observers may have equivalent access as members of the public do during opening and closing of the polls. Member Kemp said he must have been looking at a previous version. Mr. Emborsky finally asked if there is updated guidance for electioneering at the Cape Fear Community College sites. Director Hunter-Havens said she is working with CFCC staff for clarification of what is permitted at both the downtown and North Campus sites and with UNCW for that campus site under their campus policies. Member Kemp said he recalled when approving polling places, the Board receives information about constraints on electioneering such as signage limitations. He asked if either the UNCW or CFCC locations have indicated their concerns about outside electioneering in that process. The Director said that neither site restricts electioneering but have in place campus-wide polices on placing tents, tables and signs. These are public facilities and cannot prohibit electioneering. Member Kemp asked if those facilities have given that information when approached about using their facilities. The Director said it has not been provided but it is apparent there is a need to clarify those policies. She is working on getting that information and communicating it through FAQs on electioneering. Mr. Gatewood asked for clarification as to what machine Mr. Emborsky observed during testing. Director Hunter-Havens said he saw testing of the DS-850 used during the absentee meetings and for recounts. Seeing and hearing no other public or virtual attendees wishing to comment, Chair Carter closed the public comment and question period. 3.STATUTORILY-REQUIRED BUSINESS •Review of Absentee Ballot Applications Chair Carter called for the next item on the agenda and reported the receipt of 37 absentee by mail ballots for review with a staff recommendation to accept them. •28 civilian ballots •8 overseas ballots •1 military ballot Director Hunter-Havens said the recommendation is to review and accept these absentee- by-mail applications at this meeting but hold them for opening and scanning at the next meeting due to the low volume. She is working with the library to secure a space for public review of the absentee by mail envelopes Container-Return Envelopes and absentee ballot applications. She will notify the parties of the dates and times once those are scheduled. In response to a question from Member Hunter, the Director said two additional absentee-by-mail ballots Draft Agenda Packet Board Minutes 04/12/2022 Page | 4 have come in. One voter called and requested their ballot be spoiled, which was done. One ballot is outstanding pending cure. A total of 370 ballots have been mailed out so far. Member Bryan asked what defect required cure for the one outstanding ballot. The Director said the voter either signed in the wrong place or is missing the voter’s signature. The cure letter is sent automatically in such a case. The Director introduced Beth Pugh, Elections Specialist, who oversees the absentee process, among other duties. She joined the staff in September 2021. The Board started their review of the absentee by mail return envelopes Container-Return Envelopes and absentee ballot applications. Chair Carter reminded the Board members to shield the Container-Return Envelopes or affidavits from the camera and the public. Member Kemp asked to have Mr. Rothlein and Mr. Emborsky stand behind him while he reviewed the absentee by mail Container-Return Envelopes. Chair Carter said the return envelopes are confidential and can only be reviewed by the Board and staff. Member Kemp said his understanding of confidential is that the information cannot be revealed or captured, but can be observed. Director Hunter-Havens said when she arranges a public review of the Container-Return Envelopes, the absentee number label is still required to be covered from public view. Review of absentee by mail ballots Container-Return Envelopes and absentee ballot applications is a board duty. Member Kemp reminded the Board of their action to authorize a staff member to observe him while he reviewed the confidential absentee ballot log to be sure he did not write down any of the information. He is looking for a way to accomplish bipartisan observation in a secure environment. If the camera is the chief concern, we can turn off the camera. Member Hunter said the Board is the required bipartisan reviewers. Member Kemp said he hears that, with the parties requesting to review them, the Board could facilitate that purpose more readily if no notes or pictures are made. Member Hunter said she would be concerned if an unauthorized person were seeing her confidential information, such as driver’s license or social security numbers. It is still protected confidential information. Chair Carter said it would be a departure from past practice and he does not feel comfortable making such a change on the fly. Member Kemp agreed his request is a departure from Board practice. Chair Carter said if Member Kemp wishes to pursue it, he would want to know whether other observers can review the Container-Return Envelopes and under what rules. The Director repeated there will be an opportunity for party representatives to see signatures and publicly available information on the Container-Return Envelopes and absentee ballot logs, but not the confidential information. Approved Container-Return Envelopes will be available prior to primary election day. The absentee register is confidential until election day. In response to a question from Member Bryan, Director Hunter-Havens explained that overseas or military absentee ballots received by email are duplicated by a designated bipartisan duplication team for scanning. Member Kemp asked whether the Container- Draft Agenda Packet Board Minutes 04/12/2022 Page | 5 Return Envelopes under review today were requested by paper Absentee Ballot Request Forms request forms as opposed to on-line requests. The Director said that the method of receipt of the request for an absentee ballot is not tracked and there is likely a mixture of the request methods in this batch. Member Kemp said NC Gen. Stat. §163-230.1(f) says that the Board approves or denies “applications for absentee ballots.” This raises his concern, being made more timely, for an opportunity to review the paper forms. Director Hunter-Havens said the application referenced in the statute is what the Board is reviewing now on the return envelope. At no point is the Board responsible for reviewing the requests for absentee ballots Absentee Ballot Request Forms. That is done by an administrative process and software that requires all the pertinent information before a label to mail the absentee ballot can be generated. Chair Carter asked to defer further discussion for now so that the review of the container- envelopes can be completed. Discussion may resume when all Board members can fully engage the discussion. Upon completion of the Board’s review, Member Kemp moved approval of 37 absentee by mail ballots, second by Member Hunter. Motion carried unanimously. 4.OLD BUSINESS •Approval of Minutes (9/1/2021 and 9/14/2021 as revised) Member Kemp moved approval of the minutes of 9/1/2021 and 9/14/2021, second by Member Bryan. Chair Carter said he proposed several revisions to clarify what Board Members or the Director said. He checked that everyone is comfortable with those revisions. He Chair Carter requested two additional changes which were not incorporated after comparing the minutes before the Board with his redline version. He requested that the Board divide the question to address the 9/1/2021 minutes separately from the 9/14/2021 minutes. Motion to approve the 9/1/2021 minutes as revised carried unanimously. Chair Carter moved to table the minutes of 9/14/2021 until later in this meeting, second by Member Kemp. Motion carried unanimously. 5.GENERAL DISCUSSION Chair Carter moved to the General Discussion section of the agenda, noting that two election-related matters have arisen. Chair Carter proposed to take up the matter that Member Kemp raised regarding review of Absentee Ballot Request Forms, and then to address the administrative assignments questions Member Kemp raised by email several days ago. a.Review of Absentee Ballot Request Forms Member Kemp referenced §163-230.1 (f) on page 282 in the law book and read the first paragraph as follows: Draft Agenda Packet Board Minutes 04/12/2022 Page | 6 (f) Required Meeting of County Board of Elections. – During the period commencing on the fifth Tuesday before an election, in which absentee ballots are authorized, the county board of elections shall hold one or more public meetings each Tuesday at 5:00 p.m. for the purpose of action on applications for absentee ballots. At these meetings, the county board of elections shall pass upon applications for absentee ballots. He continued reading from the third paragraph of the same section: At the time the county board of elections makes its decision on an application for absentee ballots, the board shall enter in the appropriate column in the register of absentee requests, applications, and ballots issued opposite the name of the applicant a notation of whether the applicant's application was "Approved" or "Disapproved". He reads that to mean that the Board is approving or disapproving applications. At paragraph (f1), the statute talks about “Container-Return Envelopes … with application and voted ballots.” He Member Kemp said the Container-Return Envelope is not the same thing as the application. Member Hunter said that the other statute cited in the agenda materials is §163-229 (b) talks about applications on Container-Return Envelopes. Member Kemp said his point is that the Board should be reviewing both the applications and the Container-Return Envelopes contemporaneously, as he understands the statute to require. Chair Carter said we need to be careful about our word choices as the statute uses Absentee Ballot Request Form, applications, and Container-Return Envelopes to mean different things. Member Kemp said he is giving the plain meaning to the words in the statute. Member Hunter asked Member Kemp to state his question. Member Kemp said his question is to clarify the legal basis for denying his request to see the hand-written applications for absentee ballots. Director Hunter-Havens said that requests for absentee ballots come through the portal in electronic form and by paper requests which may be filled out electronically or manually and returned by the voter. Member Kemp said he is not interested in requests coming through the portal as these are electronically verified. He is asking to see the paper request forms. Chair Carter said it would help the discussion if we called the paper forms the absentee ballot request form as distinct from the application/Container-Return Envelope. Member Kemp said he would be happy to use those terms if that is what the code uses. Member Hunter asked if Member Kemp sees a place in the code where it says that any Board member has the right to see the Absentee Ballot Request Form? The question is the legal authority to see what you are asking to see. These are different forms called by different names. Member Bryan said §163-229 references an application on the Container-Return Envelope as a separate thing. He sees the distinction between the Container-Return Envelope and the application. He asked Member Kemp whether he agrees that the last sentence of §163-230.1(f) would require the full Board to approve these and disallows one Board member from reviewing them alone. He read the section: Draft Agenda Packet Board Minutes 04/12/2022 Page | 7 The county board of elections shall constitute the proper official body to pass upon the validity of all applications for absentee ballots received in the county; this function shall not be performed by the chair or any other member of the board individually. Member Kemp said he was not pointing to that. The denial of his request last fall asserted that he did not have authority outside of a board meeting to review it. That is why he raised it in this meeting for absentee ballots so that his request would be timely. Even though the Board authorized him to review, he learned there was a difference of opinion as to what was approved. Chair Carter called on Secretary Miller, who read the last sentence of §163-229(b): “Each container-return envelope shall have printed on it an application ….” He reads that to mean that the application is what appears on the envelope, which clarifies for him the relationship between the application and the Container-Return Envelope. He further noted §163-228 which says the official register of absentee ballots is a confidential document and not a public record until the opening of polls on election day. These two passages lay out the three items under discussion. Member Bryan said he may have found something in §163- 230.1(a) which addresses simultaneous issuance of absentee ballots with application and states that a voter “eligible to vote by absentee ballot … shall complete a request form for an absentee application and absentee ballot ….” This indicates that each of these are separate things in the absentee voting process. Member Hunter said that section refers to §163-228(a) that Secretary Miller referenced also, which addresses the register and the information that goes into it from the requests for absentee ballots. She asked Member Kemp whether that is the register he has asked about. Member Kemp said he is not asking about the register; he is asking to see the applications. Chair Carter said he understood Member Kemp is asking to see the request forms Director Hunter-Havens said the register is confidential until election day. The register contains the names and other information from the submitted Absentee Ballot Request Form, when the absentee ballot was issued, and when and how returned. The register is confidential for a couple of security reasons. First, it shows the absentee ballot identification number. Second, it prevents malicious use of the information as to where the absentee ballot is mailed. Chair Carter asked Member Kemp if he is interested in seeing the register. Member Kemp said last year he was authorized to review it which he did while being monitored for 45 minutes. Chair Carter asked if his review took place before or after election day. Member Kemp said it was within two weeks of the Board authorizing him to have access. Director Hunter-Havens said the subsequent guidance from the State Board is that if a Board member is going to review the register and the Board finds that there is official business before this Board which warrants that review, the review must take place during an official public Board meeting. Review by an individual Board member outside of a public meeting is not appropriate. If the Board wants to consider granting such a request again, all five Board members need to be involved during a public meeting. A separate matter is the administrative data processing of absentee request forms. As Member Kemp has noted, some requests come in through the absentee portal, the electronic system that is pushed through a module which verifies the voter is qualified as a resident of New Hanover County to vote the ballot they are requesting and requires verification of the voter’s registration status; and verifies either the voter’s driver's license number or the last four numbers of the voter’s social security Draft Agenda Packet Board Minutes 04/12/2022 Page | 8 number, and date of birth. We are unable to print mailing labels to mail the absentee ballot until all that information is verified. When the voted ballots are returned, the Board reviews the application on the Container-Return Envelope, making their determination to accept or reject the ballot. The date of Board acceptance is entered into the register. Staff have reviewed the returned Container-Return Envelopes and made a recommendation to the Board on approval. Review and approval of the request takes place outside the Board meeting. Chair Carter confirmed with Member Kemp that his request is to review the request for absentee ballot forms that are manually completed. He asked Member Kemp what his purpose is in seeing the forms. Member Kemp said he wants to see them to get a sense of the integrity of the document. People who make crazy and wild assertions about voter integrity have targeted absentee ballots as an area of special concern. He wants to be able to say to them that he has looked at the documents and finds that the process does not raise concerns. He sees this as an opportunity to reassure the public about the integrity of the election process. His requests have been met with responses from the SBE that seem to question his intentions. It is as if he is asking to look at things they do not want me to see. Chair Carter said the Board authorized Member Kemp to see the ballot log last fall but when Member Kemp arrived, he and the Director had different ideas about what was authorized? Member Kemp said he made two requests: to see the absentee ballot log prior to election day and he was told that it is a confidential document until election day. He is concerned that anything the Board is responsible for being deemed confidential and Board members cannot see it. Chair Carter asked the Director if that was the request where she said that the Board members can view it together. The Director said such review requires it be done in the context of a legitimate Board purpose. SBE regarded the request as highly irregular as it is not something maintained in the same form by all county boards of election. Member Kemp said his second request was to see the absentee ballot applications, which he now understands as the request forms that were prepared by hand. Director Hunter-Havens said she reached an understanding with Member Kemp that after the election he could review the forms after redaction of confidential information as required by public records law, which he declined to do. Member Kemp said he sees it as the same thing as the Board’s review today of the applications on the Container-Return Envelopes. The application number is confidential information, but it was viewable by the Board members in their review while otherwise screened from public view. Director Hunter-Havens said that document falls under the Board’s duties and responsibilities, making it necessary for the Board to see the application number to exercise their duty to review and accept the application on the Container-Return Envelopes. Member Hunter said she sees it listed there but the statute does not specifically give that duty to the Board members, which are otherwise clearly stated in the statute. If it is not included, it falls outside of Board purview and the members are not entitled to see it. It is not even listed as a responsibility or as a delegable responsibility or duty. Her second point is that she does not favor doing things in response to every crazy unfounded allegation or conspiracy theory in the absence of clear concrete evidence. It is not a good use of valuable Board time. She can appreciate the efforts to instill Draft Agenda Packet Board Minutes 04/12/2022 Page | 9 confidence in the process, but she doubts that people with crazy theories will be satisfied by those efforts. Member Kemp said everything the staff does under the code is under the purview of the Board and therefore the Board’s responsibility. Anything delegated to staff is the Board’s responsibility. Chair Carter said it may be helpful to brief the question to give it a little more analysis and invited Member Kemp to bring the discussion back to the next meeting. He said that the Director has certain duties and authorities that are not delegated by the Board, such as campaign finance. Just because the Director has authority to do something, it does not always mean that the Board has the authority to do it too. Director Hunter-Havens said that SBE has focused on the uniform administration of elections across the counties. Staff have user IDs and passwords to access SEIMS and badges that give access to secure spaces and offices. Board members do not have those accesses. SBE delineates those distinctions. County Boards have certain quasi-judicial powers that the staff do not have. There are certain staff functions that require Board review and approval. Member Bryan said that is all reasonable. He cited §163-230.2 (d) which requires the County Board to confirm the voter registration of a voter who requests an absentee ballot. Obviously, the Board is not cross-referencing the voter registration with the absentee ballot request. Director Hunter-Havens said those functions are now done within the SEIMS software. Member Bryan said that while he may not be interested in reviewing the requests, he also feels constrained not to deny such access by another Board member. He is looking for a good reason not to but has not heard one so far. Director Hunter-Havens said the request form must be linked electronically to the voter registration, which is now performed by the software. Member Kemp said that is not what he is asking to see. He wants to see the paper form. Member Hunter said the statute says the Board of Elections, which is the office, not the Board. She said that §163-230.2 (f) states “The State Board shall adopt rules for the enforcement of this section.” The statute does not clearly differentiate between the Board and the office. Member Miller said the section seems to be talking about the office. Within the realm of absentee ballots, there is at least one clear marker that Board members ought not to be doing certain things. Member Bryan said that he leans toward the position that, if the Board is obligated to sign off on an administrative process, if there is a list of things Board members are not able to see in this office, he would like to see that. As Board members they are privy to confidential documents in the course of their duties. Director Hunter-Havens said the office has no means to separate paper Absentee Ballot Request Forms requests from those submitted electronically through the portal. requests for absentee ballots. The office keeps the paper forms that are delivered in person. If the Board wants to see those, the Board has the authority to see them, but not as part of the approval of absentee ballot applications. She would want SBE guidance on that question because it is highly irregular. She has a duty to protect the office and its obligations as custodians of the records. Chair Carter said he does not expect to entertain any motions about this request in this meeting. Member Kemp said he is not asking to approve anything or for more authority, just to see the available Absentee Ballot Request Forms request forms. Chair Carter said the Board has access to much of what is held by the office and staff. This discussion is a lot to Draft Agenda Packet Board Minutes 04/12/2022 Page | 10 absorb on the fly. He reads the statute to read “Board” as meaning the appointed Board of Elections and the director and staff to the extent they assist the Board in their duties. When it says “director”, it means the staff and excludes the appointed Board. Member Kemp said he is willing to review the statute in light of this discussion and return to the matter next meeting. Member Hunter said this is a great example for the statutory catch-all that the SBE shall adopt rules to enforcement the section. We are five members who each interpret things a little differently. Imagine that happening over 100 counties in North Carolina. The SBE has a duty to assure the uniform administration of elections, which is why she prefers to follow the guidance issued by the State Board. Member Bryan said that the guidance is frequently issued by the SBE Counsel’s office without official action by the State Board of Elections. Chair Carter said that when there is a specific subsection in the statutory direction to issue General Statutes that says, “The State Board shall adopt rules for …”, it probably gives those opinions any such rules more force of law legal weight than rules or regulations adopted without an explicit, specific delegation of authority. b.Administrative Assignments of Precinct Officials Chair Carter said Member Kemp asked in an email for clarification of the Director’s authority to assign chief judges and judges administratively. Member Kemp reads the statute as giving that authority to the Board and Chair up to Election Day, with a different process involving the chair on Election Day. He is repeating the request he made last meeting. Chair Carter called on Director Hunter-Havens to address whether there is written guidance for administrative appointments from the SBE. The Director said there is no single written document. Rather staffing the precincts on Election Day is an administrative duty assigned to the Director. As a practical matter, having the precincts fully staffed is a requirement for opening the polls. In practice, she follows all the standards outlined in §163-41 for the Board’s appointments to the extent possible, following long-standing practice. She also considers experience and skill sets to assure the smooth operation of the polling place. Chair Carter said in his research the statute does not appear to contemplate the exact situation that arises where an appointed official is not able to serve in a specific election but wants to retain the appointment, has not resigned or died, and has not moved out of the precinct. The statute distinguishes a failure to be present from a vacancy. The difference is that the person is letting staff know they cannot work ahead of time but is not creating a vacancy. The statute allows the Board to delegate duties to the Director and allows the Chair to delegate duties to the Director. The current process thus stands on sound legal footing. Perhaps putting the process into writing would be clearer. He is willing to work on a written delegation to the Director after the primary. The current process short-changes the parties who have some statutory role in the appointment of chief judges and judges. That is partly addressed by encouraging the parties to have their folks apply and complete the on-boarding process to be available for recommendation and appointment. He said he feels comfortable with the current process but perhaps could use some clarification. Draft Agenda Packet Board Minutes 04/12/2022 Page | 11 Member Kemp said he reads §163-41(d) to say that the referenced appointed officials are appointed by the Board or the Chair. He recognizes the need to qualify the persons appointed but that is an easy conversation between the Chair and the Director. Nowhere does the statute say the Director appoints. Chair Carter said he can delegate that authority to the Director. Member Kemp said the section does not authorize such delegation. Chair Carter said the delegation of duties to the Director states that the Director can be empowered to perform administrative duties as assigned by the Board or the Chair. Member Kemp asked whether the Chair is specifically authorizing the Director to fill a vacancy? Chair Carter said he does not consider these appointments to be vacancies. Assigning someone to temporarily cover the position is what he does want to allow. Within a window of thirty to sixty days of election day, the best thing the Board can do is get out of the way. He does not want to sow any doubts about the Director’s authority to make administrative assignments this close to election day. Member Kemp said the statute addresses a vacancy “for any other cause”, which may include a failure to show up on election day, and requires consultation with the party chair and appointment of the person recommended by the party chair. He is not aware that the Director must follow that same requirement. Chair Carter said he is not delegating any authority to appoint vacancies. He sees Member Kemp’s interpretation as not unreasonable, but he does not agree that a sudden emergency that prevents showing up on election day is cause to establish a vacancy in the position. The current administrative process followed by this Board and other county boards is the more prudent approach. Member Kemp said he would like to see a written delegation. Chair Carter said that the current delegation covers any other duty assigned by the Board or the Chair. Member Bryan said that it makes sense to him that the Director would be required to follow the same procedures under a delegation. Consultation with the county chairs should take place ahead of time within the administrative deadlines to assure inclusion in the pool of available officials. Member Kemp asked if the party chair can recommend a transfer. Chair Carter concurs with compliance with the one non-resident judge per precinct unless that is the only choice. Member Kemp said the integrity of the election hinges on the bipartisan team of judges running the polling places. We are missing that obligation in the appointment process. Chair Carter commended Member Kemp’s study of the statute to follow the law. He sees enough leeway in this statute to allow delegation to the Director. He would like to get to a place where the political parties feel they have had input into the appointments, but the Board and staff retain final authority. Member Bryan said he had planned to leave by 6:45 pm and considering this important discussion he has stretched beyond that. He asked if the Chair expected any votes that might require a unanimous vote of the Board. Chair Carter said he did not expect any additional votes, other than on the minutes of 9/14/2021 deferred from earlier in this meeting. Chair Carter said he sees a difference between the first and second paragraphs of §163- 41(d). The first paragraph addresses a vacancy in the appointed position, while the second paragraph distinguishes failure to be present from a vacancy. He does not see the requirement to consult with the parties as equivalent to that requirement as to the appointment process. There was agreement that all need to study the provisions further. Draft Agenda Packet Board Minutes 04/12/2022 Page | 12 Chair Carter called for any further General Discussion on this issue. Member Kemp said he is not clear that this issue is germane to the Absentee Special meetings. He would like to see a clear written explicit delegation of authority to the Director to make administrative assignments of election officials. Chair Carter agreed but wants to take it up after the primary election is concluded. There are other matters that require the Board’s focus until then. Member Kemp asked the Chair if he intended to appoint any more judges for this election. Chair Carter said yes, as vacancies present themselves. The voters are best served by the staff identifying open positions and recommending officials from the trained pool. The voters are best served by the staff managing that process. Member Bryan was excused from the meeting at 7:00 pm. Chair Carter asked the Board to be at ease for three minutes while he reviewed the amended minutes of 9/14/2021. Chair Carter requested one additional revision on page 25 at the beginning of the second full paragraph to read, “Member Kemp believes” before “By letting the deadline get too close ….” With that addition to the other revisions, Chair Carter moved to approve the minutes of 9/14/2021 as revised, second by Secretary Miller. Motion carried unanimously. Chair Carter addressed the public comments received over the past few months from the Republican Party. He appreciated receiving the comments by email. The volume makes it difficult to track and the senders have expressed concerns about not receiving answers to their questions. He is creating a Google document to track the concerns and linking to a source document, such as a numbered memo or other work product, and will color-code the items to track progress in responding. Member Kemp thanked the Chair for his responsiveness to the questions asked. 6.ADJOURNMENT Member Hunter moved that the meeting be adjourned at 7:10 p.m., second by Chair Carter. Motion carried unanimously. The next Board meeting is scheduled to be held on Tuesday, April 19, 2022, at 5:00 p.m. at 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 Draft Agenda Packet Board Minutes 04/12/2022 Page | 13 Draft Agenda Packet Special Meeting New Hanover County Board of Elections October 4, 2022 Subject: Member Kemp’s request to discuss Num. Memo 2020-25 and the Board’s authority to delegate to staff the approval of absentee container-envelopes not individually reviewed by the board Applicable Statutes and/or Rules * N.C. Gen. Stat. §§ 163-230.1 (e) & (f) and 163-234(3); Numbered Memo 2020-25 Summary: Member Kemp has requested that the county board discuss Numbered Memo 2020-25 in particular whether the Board should delegate to staff approval of absentee container-envelopes not individually reviewed by the board. Document/s Included: Numbered Memo 2020-25 Board Action Required: Discuss as Necessary * Applicable Statutes and/or Rules cited by Member Kemp Item # 3b Draft Agenda Packet Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-25 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Absentee Board Meetings DATE: September 22, 2020 (updated September 23, 2020) Legal Requirements for Absentee Meetings General Requirements Beginning every Tuesday on the fifth Tuesday before Election Day, county boards of elections must hold a public meeting at 5:00 p.m. to review and act upon absentee ballots.1 For the general election, this date is September 29, 2020. The county board of elections may change the time of these meetings (to an earlier or later time) and may provide for additional meetings. However, absentee meetings may not be held prior to Tuesday, September 29, 2020. Any meetings that are held at a different time on Tuesdays and any additional meetings must be noticed in a county newspaper at least 30 days prior to the election, October 4, 2020. You must also send notice of absentee meetings to your regular notice list, including to the county political parties. At each absentee board meeting, the board must act upon all absentee container-return envelopes received prior to that meeting and after the previous absentee meeting.2 An absentee meeting must be held if there are any absentee ballots (absentee by mail or one-stop early voting ballots) for the board to review. Absentee meetings should only be cancelled if the board has not received any absentee container-return envelopes since the last absentee meeting.3 Because of this statutory requirement and the anticipated significant increase in absentee ballots returned, it is 1 G.S. §163-230.1(f), as amended by 2020-17. 2 See G.S. § 163-230.1(e): “At its next official meeting after return of the completed container- return envelope with the voter’s ballots, the county board of elections shall determine whether the container-return envelope has been properly executed (emphasis added).” 3 See G.S. § 163-230.1(f), entitled “Required Meeting of County Board of Elections”: “During the period commencing on the fifth Tuesday before an election […] the county board of elections shall hold…(emphasis added).” Draft Agenda Packet 2 strongly recommended that your board schedule additional absentee board meetings and/or begin meetings earlier than 5:00 p.m. A county board may recess an absentee board meeting to a date and time certain if it is not possible to complete review of absentee ballots during the specified meeting period. You should send out the notice as soon as possible but it is not required to be sent 48 hours in advance of the reconvened meeting if that is not possible based on when the meeting was recessed from. To determine how many additional absentee meetings you need to schedule, consider how many absentee ballot requests your county has received to date, how many total requests your county received for the November 2016 election, and estimate how many requests you anticipate based on the county’s current rate of requests. For example, if your county received 6,000 requests in November 2016 and you anticipate a 50% increase for this election, that would be 9,000 requests total. If you have six absentee board meetings and everyone who requested a ballot returned one, your board would need to consider approximately 1,500 ballots per meeting. If your board sched- uled ten absentee meetings, your board would consider around 900 ballots per meeting. County Board Member Attendance Absentee board meetings require a quorum of members present. A quorum is three members.4 If at all possible, at least one member from each political party should be represented at each absentee meeting when the board is approving absentee applications. If you only have three mem- bers present, you may have one Democrat and two Republican board members, or two Democrat and one Republican board members present. Because board members must be able to view absentee envelopes in order to approve or disapprove the ballot, a quorum of board members must be physically present during each absentee board meeting. Once a quorum is physically present, remaining board members may attend the meetings via live video feed, but they must have a secure way to view the meeting and to participate. They must be able to view all materials that board members are reviewing to make decisions on the absentee envelopes. A majority of board members present at a meeting must vote for an action for it to pass. COVID-19 Precautions Board members, county board staff, and any public participants attending meetings in person must wear face masks during the meeting unless an exception applies. All participants must socially distance and wash or sanitize their hands regularly, but the board and staff should also be cautious 4 G.S. § 163-31(d): “A majority of the members shall constitute a quorum for the transaction of board business.” Draft Agenda Packet 3 about the excessive use of hand sanitizer when handling ballots. County boards may consider purchasing additional protective equipment such as gloves and transparent tabletop shields to form cubicles around each board member during absentee meetings. CARES Act funds may be used for these purchases. See Numbered Memo 2020-14 for more information. Public Attendance Absentee board meetings are public meetings and are subject to North Carolina’s open meetings laws. The recommendation in Numbered Memo 2020-11 to conduct board meetings telephoni- cally due to the COVID-19 pandemic does not apply to absentee meetings where the board is reviewing absentee return envelopes—a primarily visual process. For absentee meetings, it is recommended that the county board locate a meeting room large enough to accommodate members of the public with appropriate social distancing. If it is not possible to procure a sufficiently large space for those who may want to attend in person, the county board of elections must broadcast the absentee board meetings via video feed using a service such as WebEx or Microsoft Teams. If the county board does not have access to appropriate audiovisual equipment or software, the board may use CARES Act funds to procure the necessary equipment or teleconferencing services. The public must be able to see and hear the proceedings without compromising the secrecy of any voter’s ballot. Staff must ensure that the public cannot view any voted ballots or other confidential information, such as voter signature, on the feed. A staff member should be assigned to monitor the video feed throughout the absentee board meeting to ensure that confidential information is not viewable by the public. County board members and staff must be particularly mindful of ballot secrecy when duplicating ballots and inserting ballots into the tabulator. The public is not permitted to disrupt the process of adjudicating the validity of absentee applica- tions by the board and is not part of the deliberation process during absentee board meetings. The decision of the county board of elections as to the validity of an envelope is final and is not subject to public comment, objection, or review.5 Confidentiality of Absentee Register G.S. § 163-228 requires county boards of elections to keep a register of absentee ballot requests that includes information about the request, the address to which the ballot should be sent, the date of the request, the voter’s precinct, and other information. In 2019, the General Assembly amended subsection (c) of that section to make the absentee request register confidential and not 5 G.S. § 163-230.1(f): “The decision of the board on the validity of an application for absentee ballots shall be final subject only to such review as may be necessary in the event of an election contest.” Draft Agenda Packet 4 a public record until Election Day.6 County boards of elections are not permitted to release copies of absentee request forms or identifying information that could be used to determine that a voter requested an absentee ballot. Absentee request data is no longer confidential when the ballot is returned to the county board of elections office. Therefore, names of absentee voters may be read aloud during the absentee board meetings, as the ballot has been returned to the county board office at that point. Reading from lists of voters who have requested absentee ballots or otherwise releasing the names of voters with outstanding requests is prohibited until the ballot is returned or until Election Day. It is a Class G felony for a person to “steal[], release[], or possess[] the official register of absentee requests for mail-in absentee ballots as provided in G.S. 163-228 prior to the opening of the voting place.”7 Delegation of Preparatory Steps to Staff General Authority The county board of elections has the authority to delegate to its director “so much of the admin- istrative detail of the election functions, duties, and work of the board, its officers and members, as is now, or may hereafter be vested in the board or its members as the county board of elections may see fit.”8 However, the board may not delegate to a director or other staff any of its quasi- judicial or policymaking duties and authority. Given the significant increase in absentee ballots during this election, the county board should determine which preparatory tasks staff can complete prior to absentee board meetings. A dele- gation of administrative duties by the board to the director or staff should occur by majority vote. The delegation may be by resolution or the approved motion should be documented in the minutes. It should delegate specific preparatory steps that staff can perform prior to absentee board meetings, and the delegation must provide for oversight by the board. Preparatory steps include: • Inspecting container-return envelopes for deficiencies and contacting voters as required by Numbered Memo 2020-19 (revised September 22, 2020). Please note that voters must be contacted within one business day of when staff identify the deficiency. It is not permissible to wait for the absentee board meeting to contact the voter about a deficiency. • Sorting container return envelopes into categories for the board to review and approve. • Verifying the list of ballot envelopes against the absentee pollbook. 6 See Section 1.1.(a) of Session Law 2019-239. 7 G.S. § 163-237(d6), as amended by Session Law 2019-239. 8 G.S. § 163-35(d). Draft Agenda Packet 5 • Performing ballot duplication. Staff Review of Envelopes At each absentee board meeting, the county board of elections reviews each absentee container- return envelope to determine whether it has been properly executed, and if so, to approve the ap- plication and ballot.9 Given the volume of absentee ballots the county board is required to review and act upon at each meeting, the board should consider ways to streamline the process. To that end, a county board may take preparatory steps to expedite review of ballot envelopes by the board. After intake, staff must inspect the absentee ballot envelope and make an initial deter- mination as to whether the envelope was properly executed. If a deficiency exists, they must follow the cure process in Numbered Memo 2020-19. Staff should also perform an initial sort of ballot envelopes into categories upon initial review and to present those recommendations to the board at each absentee board meeting. Those categories may include designations for recom- mended approval, recommended disapproval, envelopes awaiting a cure certification, and those that staff have questions about that require deliberation by the board. The delegation may also require staff to prepare a report to the board indicating the number of ballot envelopes in each category for reconciliation purposes. The board may by majority vote accept staff’s recommendation for absentee ballot envelopes that staff have reviewed and recommended for approval. The delegation must include a process for the board to spot-check the envelopes to ensure accuracy and consistency. However, the board must individually review all ballot envelopes that: (1) have been recommended for disapproval by staff, (2) have a cure certification associated with that ballot envelope, or (3) where staff need further guidance from the board as to whether the envelope was properly executed. After absentee envelopes are approved by the board, the task of stamping every envelope with “Approved” and stamping or otherwise affixing the chair’s signature or initials to the ballot enve- lopes may be delegated to staff. Alternatively, the board’s delegation may authorize the board to sign a cover sheet containing a list of envelopes that were acted upon during the meeting and indicating whether those envelopes were approved or disapproved in lieu of signing the individual envelopes. The delegation may also apply to review and approval of one-stop absentee applica- tions. It is also permissible for the board to determine that bipartisan teams of board members to pair off to review absentee ballot envelopes during each meeting if the board votes to allow this. Whether the county board delegates the initial review of absentee envelopes to staff or chooses to have a bipartisan team of board members review envelopes during the meeting, all board members 9 G.S. § 163-230.1(e) and (f). Draft Agenda Packet 6 present at the meeting must approve or disapprove the ballots. A decision as to whether an enve- lope is properly executed must be decided by a vote of the board as a whole and not by individual members.10 Scanning Absentee Ballots at Absentee Board Meetings It is important to understand the difference between scanning and tabulating. “Scanning” is a preparatory step that occurs when the approved absentee ballots are opened, removed from the envelope, and inserted into the tabulator. The tabulator reads the ballots but does not print the totals at that time, and no election returns are released. “Tabulating” or “counting” occurs on Election Day and is the result of the scanning that has taken place. A county board of elections may by majority vote decide to scan absentee ballots during each absentee meeting.11 Due to the significant increase in absentee ballots this election, it is strongly recommended that county boards authorize the scanning of approved ballots during absentee board meetings instead of waiting until Election Day. The scanning cannot begin until a majority of the board members and at least one board member of each political party is in attendance. If a board member of each political party is not available, the chair or other member of the executive committee of the county political party of the absent member must be present. The political party representative shall act as an official witness to the scanning and shall sign the absentee ballot abstract as an “observer.”12 Staff may enter the approved ballots into the tabulator, but each board member present is respon- sible for and must observe and supervise the opening of the envelopes and scanning of the ballots.13 It is not permissible for approved ballot envelopes to be opened, for ballots to be removed from the envelope, or for ballots to be inserted into the tabulator outside of a board meeting. These tasks cannot be delegated to staff to complete outside of a board meeting. If the board chooses to scan approved ballots during absentee meetings, it should consider ways to make the process as efficient and streamlined as possible. For example, the board could approve staff-recommended ballots first, then direct the staff to open those envelopes and enter the ballots 10 “The county board of elections shall constitute the proper official body to pass upon the validity of all applications for absentee ballots received in the county; this function shall not be performed by the chairman or any other member of the board individually.” G.S. § 163-230.1(f). 11 G.S. § 163-234(3). 12 G.S. § 163-234(9). 13 G.S. § 163-234(5). Draft Agenda Packet 7 into the tabulator while the board reviews the envelopes that require further consideration and those that staff have recommended be disapproved. Scanning of ballots must be performed during a board meeting, and ballots must be scanned at the same meeting during which they were approved.14 The number of approved absentee ballots must be reconciled with the number of ballots inserted into the tabulator. Reconciliation should be completed at each board meeting. If it is not possible to scan all approved ballots at that meeting, the board may recess the scanning to a time and date certain, which could be the next absentee board meeting. You should send out the notice as soon as possible but it is not required to be sent 48 hours in advance of the reconvened meeting. Ballots should be processed in groups, so that ballots from all opened ballot envelopes are processed in the same meeting. Election Day Meeting County boards are strongly encouraged to begin counting ballots at 2 p.m. rather than 5 p.m. on Election Day to avoid a delay in absentee results being released on election night.15 County boards may begin counting UOCAVA ballots beginning on 9 a.m. on Election Day. To begin counting ballots prior to 5 p.m., a county board must adopt a resolution at least two weeks prior to the election stating the hour and place of counting of absentee ballots. The resolution also may provide for an additional meeting following the day of the election and prior to the day of canvass to count absentee ballots received pursuant to G.S. 163-231(b)(ii) or (iii) as provided in subdivision (11) of G.S. § 163-234(11). A copy of the resolutions shall be published once a week for two weeks prior to the election, in a newspaper having general circulation in the county. Notice may additionally be made on a radio or television station or both, but such notice shall be in addi- tion to the newspaper and other required notice. At its meeting on Election Day, county boards must count all absentee ballots that have come in prior to 5 p.m. on the day before Election Day. The election results may not be released until after the polls close. Ballot Duplication UOCAVA ballots and ballots that have been damaged or otherwise cannot be read by the tabulator must be duplicated in order to be scanned by the machine and to avoid having to manually enter 14 G.S. § 163-234(3): “Notwithstanding the provisions of subdivision (2) of this section, a county board of elections may, at each meeting at which it approves absentee ballot applications pursu- ant to G.S. 163-230.1(c) and (c1), remove those ballots from their envelopes and have them read by an optical scanning machine, without printing the totals on the scanner.” (Emphasis added). 15 G.S. § 163-234(2). Draft Agenda Packet 8 the voter’s selections into the reporting software. County boards may adopt a policy to authorize a bipartisan team of staff members to duplicate ballots outside of an absentee board meeting. The policy must include the following: • Each bipartisan duplication team must consist of at least three staff members, with no more than two members being of the same political affiliation. It is a best practice to have at least four members, two of each political party, to ensure accuracy. • The director must supervise and train all members of the duplication team and assign the following roles: o Ballot Caller – Announces the voter’s selections listed on the original ballot to the Ballot Duplicator and Ballot Reviewer. o Ballot Duplicator – Replicates the voter’s selections from the original ballot onto the machine-readable ballot as instructed by the Ballot Caller. o Ballot Reviewer – Reviews the Ballot Caller’s readings from the original ballot and compare it to the selections recorded on the machine-readable ballot by the Ballot Duplicator to ensure accuracy. It is a best practice to have two ballot reviewers, one who will review the selection announced by the Ballot Caller and one who will review the selection made by the Ballot Duplicator. • Prior to the start of the ballot duplication process, each member of the bipartisan duplica- tion team must complete a participation log noting the date, time, and their name, role, and party affiliation. • During the ballot duplication process, the duplication team is not permitted to leave each other’s immediate presence until the process has been completed, unless authorized by the director. • All duplicated ballots must contain the following in the blank box at the top of each ballot: o A notation (for example, “DUP”) to indicate the ballot is a duplicate of the original. o The ballot number assigned to the voter. o The precinct and VTD of the voter. • Upon completion of the process, the team must do the following: o Ensure that the duplicated ballots are attached to the corresponding original ballots for the Board to verify at its next scheduled meeting. o Enter the time of completion and their signatures to the ballot duplication log. o Provide the completed duplication log and the ballots to the director. • The director must ensure that the ballots are kept in a secured container until the next ab- sentee board meeting. • The board must review each duplicated ballot at its next scheduled board meeting prior to approval of the ballots. It is a best practice to have a duplication team present at every meeting to duplicate any damaged ballots that are identified during the board meeting. Duplicating ballots at the board meeting when the ballot envelope was approved reduces the likelihood of mistakes. Draft Agenda Packet 9 Control of Board Meeting The county board of elections is responsible for maintaining control at its absentee board meetings. The county board must ensure that the public receives proper notice of the board meeting and is given the opportunity to attend. However, the county board should not permit public comment while absentee envelopes are being adjudicated, or while ballots are being duplicated, sorted, or tabulated. The board also should not permit questions from the public as the board approves ab- sentee envelopes. Further, G.S. 163-234 is very clear that others shall be permitted to attend the meeting during which absentee ballots are counted and observe the process, but may not interfere with the election officials in the discharge of their duties.16 It is recommended that the board chair explain the process at the beginning of the board meeting and state that public comment is not permitted during the approval and scanning of absentee bal- lots. The board may, but is not required to, designate a separate part of the meeting for public comment. At the end of each board meeting, the goal is total reconciliation of all envelopes and ballots. To do that requires careful control of every document in the room. It also requires ensuring that the board members focus on the task at hand and that the public remains in an observer rather than a participant role. Envelopes and ballots must not be allowed to be removed from assigned areas. The reconciliation process shall ensure the number of ballot envelopes in each stack is tracked, and that the number of envelopes approved at the meeting is equal the number of ballots entered into the tabulator. The county board shall record the count on the tabulator at the start and end of each absentee meeting. A sample reconciliation log that you may use for process is available here. Public Records Requests for Envelopes Some county boards may have received public records requests for absentee ballot return enve- lopes. Ballot return envelopes are public records under North Carolina's Public Records Act, with exceptions for voter signature and CIV number.17 Public records requests should not be fulfilled during a board meeting, but must be fulfilled as promptly as possible. 16 163-234(2): “Any elector of the county shall be permitted to attend the meeting and allowed to observe the counting process, provided the elector shall not in any manner interfere with the election officials in the discharge of their duties.” 17 G.S. 132-1.2(4), 163-82.10(a), 163-165.1(e). See also Numbered Memo 2016-25. Draft Agenda Packet 10 Providing Copies of Envelopes Prior to providing a copy of the envelope to the requestor, the voter signature and CIV number must be redacted, as the number links the envelope to a particular voter's ballot. Witness or assis- tant information may not be redacted. To redact the voter signature and CIV number, you may copy the envelope, mark through the confidential information on the copy, and then copy it again. Some counties have used a card- board or other thick paper cutout to cover the confidential information when making a copy. Digital copies may also be provided using a template redaction tool in Adobe. Viewing Envelopes Unredacted envelopes may be viewed by the public in your office, though no copy, photo, or trac- ing may be made. A county board must ensure that the requestor is monitored while reviewing the envelopes in the office to ensure the voter’s signature is not retained. Absentee ballot return envelopes contain an identifier that is linked to the ballot, so this identifier must also be redacted from public view to protect the secrecy of the ballot. Draft Agenda Packet Special Meeting New Hanover County Board of Elections October 4, 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). Document/s Included: Item # 2 Item # 4a Draft Agenda Packet Chief Judge and Judge Nominations for 2022 General Election Board Action Required: Discuss as necessary and action required Draft Agenda Packet Special Meeting New Hanover County Board of Elections October 4, 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 able to serve. 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. Document/s Included: Precinct Assistant Nominations for the 2022 General Election Item # 2 Item # 4b Draft Agenda Packet Board Action Required: Discuss as necessary and action required Draft Agenda Packet Special Meeting New Hanover County Board of Elections October 4, 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 Draft Agenda Packet 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 also 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 Draft Agenda Packet 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 (Included after agenda item 3b), Absentee Poll Book and Reconciliation Log Sheet (Provided at meeting) Board Action Required: Discuss as necessary and action required Draft Agenda Packet 1 Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax:(919) 715-0135 Numbered Memo 2022-11 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Court Order Regarding Assistance for Absentee Voters with Disabilities DATE: August 29, 2022 On July 11, 2022, a federal court issued an order invalidating state laws preventing certain individuals from helping disabled voters request, complete, and submit absentee ballots.1 The court determined that these laws, as applied to disabled voters, violate federal law. Specifically, Section 208 of the Voting Rights Act permits any voter who is blind, disabled, or unable to read or write to request “assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.”2 This numbered memo provides guidance for county boards to comply with the court order. It supersedes Numbered Memo 2020-15 and any other prior memo to the extent they provide guidance regarding who may assist an absentee voter who needs assistance due to a disability. Assistance for Absentee Voters with Disabilities Voters who need assistance voting absentee by mail due to their disability may now receive assistance from any person they choose. This could be a friend, relative, or any other person the voter chooses to assist them. A candidate may not witness the ballot of a voter unless the candidate is the voter’s near relative.3 Voters in Covered Facilities A voter who needs assistance due to a disability and is a patient or resident in a covered facility may receive assistance from any person they choose. They may receive assistance from the staff 1 Disability Rights NC v. State Board of Elections, 5:21-CV-361-BO, Order on Motion for Summary Judgment (E.D.N.C. July 11, 2022). The specific laws that were invalidated with respect to assisting disabled voters are N.C.G.S. §§ 163-226.3, -230.1, -230.2, -230.3, and -231(b)(1). 2 52 U.S.C. § 10508. 3 However, a voter living in covered care facilities may receive assistance from a candidate if the voter needs assistance due to the voter’s disability. Draft Agenda Packet 2 of the hospital, clinic, nursing home, or rest home where they are a patient or resident. There is no requirement that the facility staff complete a log when they assist a voter, although the facility may choose to do so. Facility staff are not required to assist a voter if they do not wish to do so or are instructed not to do so by the facility. Facility staff may continue to rely on multipartisan assistance team (MAT) members to assist their residents, if that is the facility’s preference. Under the court’s order, a voter in a covered facility who needs assistance due to a disability may also receive assistance from an elected official, political party officeholder, or candidate. They may still request and use a MAT, but they are not required to do so. A voter who is a patient or resident in a covered facility but who does not need assistance due to a disability may request assistance from a near relative, legal guardian, or a MAT. Recall, the court’s order changes the rules only for voters who need assistance due to a disability. If a near relative, legal guardian, or MAT is not available within seven calendar days of such a voter’s request, the voter may get assistance from anyone EXCEPT: • An owner, manager, director, or employee of the hospital, clinic, nursing home, or rest home where the voter is a patient or a resident; • An elected official, candidate, or officeholder in a political party; or • A campaign manager or treasurer for a candidate or political party.4 Assistance with Absentee Voting Absentee Requests Upon request of a voter who needs assistance due to a disability, any person may assist the voter by: • Completing the absentee request form, according to the voter’s instruction; • Making the absentee request on the voter’s behalf, according to the voter’s instruction; and • Returning the request form, according to the voter’s instruction. The assistant may return the request form by mail or in person, or through the State Board’s online portal. 4 N.C.G.S. § 163-226.3(a)(4). Draft Agenda Packet 3 The assistant must complete Section 9 of the request form, including providing their name and address. The form is invalid if the assistant does not provide information such that the assistant’s name and address can be determined.5 If the assistant is making the request for the voter (i.e., not just helping to fill out the form, but making the request in lieu of the voter), they must also complete and sign Section 8. As long as the assistant’s address is listed in either Section 8 or Section 9, it is not required to be listed twice since the assistant’s address can be determined if it is listed once. Absentee Container-Return Envelopes Upon request of a voter who needs assistance due to a disability, any person, including a MAT member, may assist the voter by: • Completing the absentee container-return envelope, according to the voter’s instruction; • Marking the ballot, according to the voter’s instruction; • Signing the envelope if, due a disability, the voter is unable to sign or make their mark; and • Returning the ballot, according to the voter’s instruction. The assistant may return the ballot by mail or in person to the county board of elections office or a one-stop site in the county. The assistant must complete the Voter Assistant Certification section of the envelope. If a voter is physically unable to sign or make their mark due to disability, the person assisting with the ballot should write in the signature line, “Disabled - cannot sign” and must complete the Voter Assistant Certification located on the back of the ballot return envelope. The assistant may return a cure certification for a voter who needs assistance due to a disability. See Numbered Memo 2021-03 for information about the cure process for deficient absentee container-return envelopes. County boards shall keep a log for cure certifications that are hand-delivered to the county board office. Absence for Sickness or Physical Disability If a voter expects to be unable to go to the voting place to vote in person on Election Day because of that voter’s sickness or other physical disability, any of the following people may 5 N.C.G.S. § 163-230.2(e1) states: “If a voter is in need of assistance completing the written request form due to blindness, disability, or inability to read or write and there is not a near relative or legal guardian available to assist that voter, the voter may request some other person to give assistance, notwithstanding any other provision of this section. If another person gives assistance in completing the written request form, that person’s name and address shall be disclosed on the written request form in addition to the information listed in subsection (a) of this section.” (Emphasis added.) Draft Agenda Packet 4 make the request for absentee ballots in person to the board of elections of the county in which the voter is registered after 5:00 p.m. on the Tuesday before the election but not later than 5:00 p.m. on the day before the election: • The voter; • The voter’s near relative or legal guardian; or • Any other person, if the voter needs assistance due to a disability. Upon receipt of a completed request form, the county board shall personally deliver the application and ballots to the voter, near relative, legal guardian, or assistant.6 Assistance with In-Person Voting The requirements for who may assist a voter voting in person have not changed. A disabled or illiterate voter who is voting in person may receive assistance from a person of the voter’s choice, other than the voter’s employer or agent of that employer or an officer or agent of the voter’s union.7 There is no limit on how many voters an assistant may assist, if properly requested. Answers to Frequently Asked Questions Q1: May a voter who needs assistance due to a disability receive assistance from a candidate? A: It depends. A voter who needs assistance due to a disability may receive assistance from a candidate if the voter is a patient or resident of covered facility. However, the court order did not enjoin G.S. § 163-237(c), which prevents a candidate from serving as a witness otherwise. Therefore, a voter who is not a patient or resident of a covered facility is prohibited from having a candidate serve as a witness unless the candidate is their near relative. Q2: What is the definition of a disability? A: Under the Americans with Disabilities Act, a disability is a physical or mental impairment that causes someone to be substantially limited in a major life activity.8 This means someone who has substantial limitations on the ability to perform everyday 6 N.C.G.S. § 163-230.1(b). 7 N.C.G.S. § 163-166.8(a)(2). 8 42 U.S.C. § 12102(1)(A). Draft Agenda Packet 5 things—such as seeing, hearing, walking, standing, speaking, reading, concentrating, thinking, and writing—as compared to most people in the general population.9 Most people living in nursing homes and other congregate care settings need help with at least one aspect of daily living and will generally be considered to have a disability. Federal law states that public entities are not to engage in demanding tests to determine an individual’s level of disability.10 For the purposes of seeking assistance with absentee voting, however, the disability should substantially impair an activity that pertains to the absentee voting process.11 All of the examples of everyday activities listed above could pertain to some aspect of the absentee voting process. Q3: Is advanced age a reason for assistance (for example, curbside is open to those who due to age or disability are unable to enter the enclosure)? A: No, age alone is not a reason the voter may receive assistance under the court order. The voter must need assistance due to a disability, but a disability may be age-related. See the answer to Question 2 for the definition of a disability. Q4: How do we know if someone has a disability? A: See the answer to Question 2 regarding the definition of a disability. The voter’s disability is confirmed through the attestations on the request form and the absentee envelope. These contain language requiring the assistant to attest that the voter asked for help due to the voter’s disability. It is not for the county board to inquire into the specifics of a voter’s attested-to disability that renders the voter in need of assistance. If the assistance portion of an otherwise valid request form or envelope is properly completed, the county board shall approve it. If the county board has reason to believe that non-disabled voters are receiving assistance to which they are not entitled, or that disabled voters’ wishes are not being respected, they shall forward such evidence the State Board’s Investigations Division. 9 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 35.108(c)(1), (d)(1)(v). 10 28 C.F.R. § 35.101; see 28 C.F.R. §§ 35.108(a)(2)(i), (c)(2)(i)-(ii), (d)(1)(i)-(viii), . 11 The Voting Rights Act permits a voter to get assistance from a person of their choice if that voter “requires assistance to vote by reason of blindness, disability, or inability to read or write[.]” 52 U.S.C. § 10508 (emphasis added). Draft Agenda Packet 6 Q5: What if a disabled voter in a covered facility wishes to get assistance from and use as witnesses two staff members in the facility, but the voter’s near relative is concerned about undue influence and has contacted the county board to complain? A: A voter who needs assistance due to a disability has the right to select an assistant of their choice under the court order (and federal law). If a family member is concerned that someone has improperly influenced a voter, the county board of elections should refer them to the State Board’s Investigations Division. It is a crime to interfere with a voter when marking their ballot, or to defraud a blind or illiterate voter from marking the ballot selections of their choosing.12 Q6: Is the assistant required to respect the secrecy of the voter’s ballot? Yes. Any person who assists a voter must keep the voter’s ballot choices confidential. It is a crime for any person who has access to another person’s ballot to reveal how the person voted.13 Q7: Are there any changes to the requirement that an absentee voter have two witnesses or a notary? A: No. An absentee ballot must still be witnessed by two people or one notary public. The witnesses must be at least 18 years old. Q8: What is the definition of a covered facility? A: A “covered facility” is any facility that provides residential or in-patient healthcare in the State that is licensed or operated pursuant to Chapter 122C, Chapter 131D, or Chapter 131E of the General Statutes, including, for example, a hospital, clinic, nursing home, or adult care home; or by the federal government or an Indian tribe.14 12 N.C.G.S. §§ 163-273(a)(4) and 163-274(a)(13). 13 N.C.G.S. § 163-274(b). 14 08 NCAC 16 .0101(b). Draft Agenda Packet Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2021-07 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Deficiencies in Notary Portion of Absentee Application and Certificate DATE: August 31, 2021 This numbered memo explains how county boards of elections should treat technical deficiencies in the execution of the notary portion of an absentee container return envelope (officially called the absentee ballot application and certificate). It replaces Numbered Memo 2020-07. The guidance balances the goal of uniformly applying the law while seeking to not punish the voter for a notary’s inadvertent mistake or error. G.S. § 163-231(a) requires a voter to mark the absentee by-mail ballot in the presence of two witnesses or one notary public, who must sign the container return envelope as witness(es). If witnessed by a notary, the statute requires the notary public to affix their valid notarial seal to the envelope and include the phrase “Notary Public” below his or her signature. State Board of Elections staff consulted with the North Carolina Department of the Secretary of State’s Electronic Notarization and Notary Enforcement Division regarding the validity of an incomplete notarization on the container return envelope. While the Secretary of State’s Office cannot adjudicate an absentee ballot, they provided useful information on how the notary statutes work in conjunction with our election statutes, including that there is a presumption of regularity in the absence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of the notary statutes by the notary.1 The Secretary of State’s Office has requested that notarial errors on the absentee ballot container-return envelope be reported to them. Certain technical errors in executing the notary’s portion of the container return envelope are not considered deficiencies. Other errors are considered deficiencies that require the ballot to be spoiled and reissued in accordance with Section 2.2 of Numbered Memo 2021-03. 1 G.S. 10B-99(a) (relevant portion): “In the absence of evidence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of this Article by the notary, the courts shall grant a presumption of regularity to notarial acts so that those acts may be upheld, provided there has been substantial compliance with the law.” Draft Agenda Packet 2 1. Technical Errors That Are Not Considered Deficiencies The following technical errors do not affect the sufficiency, validity, or enforceability of the notarial certificate itself or the underlying document and are not considered deficiencies: • Notary leaves off the name of the voter or misspells the voter’s name; • Notary does not write the expiration date of their commission; • Notary does not include the name of the county or State; • The notary seal is hard to read; • The notary does not include the date the notary witnessed the marking of the ballot; or • A combination of the above.2 2. Technical Errors That Are Considered Deficiencies The following errors in the notarial certificate are considered deficiencies that cannot be cured by certification, and require that the ballot be spoiled and reissued in accordance with Numbered Memo 2021-03: • The notary’s signature is missing. Pursuant to G.S. § 163-231(a)(5), the notary’s signature is required. • The notarial seal is missing altogether or contains missing information. G.S. § 163-231(a) requires the notary to affix a valid notarial seal to the envelope. 2 G.S. § 10B-68 (relevant portion): (a) Technical defects, errors, or omissions in a notarial certificate shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related instrument or document. […] (c) As used in this section, a technical defect includes those cured under G.S. 10B-37(f) and G.S. 10B- 67. Other technical defects include, but are not limited to, the absence of the legible appearance of the notary's name exactly as shown on the notary's commission as required in G.S. 10B-20(b), the affixation of the notary's seal near the signature of the principal or subscribing witness rather than near the notary's signature, minor typographical mistakes in the spelling of the principal's name, the failure to acknowledge the principal's name exactly as signed by including or omitting initials, or the failure to specify the principal's title or office, if any.” G.S. 10B-67: “An erroneous statement of the date that the notary's commission expires shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related record if the notary is, in fact, lawfully commissioned at the time of the notarial act. This section applies to notarial acts whenever performed.” G.S. 10B-37(f): “The failure of a notarial seal to comply with the requirements of this section shall not affect the sufficiency, validity, or enforceability of the notarial certificate, but shall constitute a violation of the notary's duties.” Draft Agenda Packet 3 3. Fraud Indicators If there are indications of fraud on the absentee envelope, whether they relate to the notary section or other sections of the envelope, this information should be sent to the State Board’s Investigations Division. Examples of fraud indicators include: • A notary or witness completed multiple applications containing technical errors; • The handwriting for the voter’s signature and witness’s signature appears identical; • The envelope appears to have been tampered with; and • There are stray or suspicious markings on the envelope. Draft Agenda Packet Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or(866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2021-03 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Absentee Container-Return Envelope Deficiencies DATE: June 11, 2021 This numbered memo replaces Numbered Memo 2020-19, which was first issued on August 21, 2020 and subsequently revised and reissued on September 22, 2020, and October 17, 2020. The State Board is required to provide a cure process for voters whose absentee container-return enve- lopes contain certain deficiencies. There were two separate court orders requiring a cure process. The Consent Judgment in NC Alliance v. State Board of Elections, No. 20-CVS-8881 (Wake Co. Sup. Ct. Oct. 2, 2020), which formed part of the basis for the revised 2020 memo, was limited to the 2020 general election. The preliminary injunction in Democracy NC v. State Board of Elec- tions, 476 F.Supp.3d 158 (M.D.N.C. Aug. 4, 2020), was not limited to a particular election. This numbered memo revises the cure process that was first established for the 2020 general election and applies to all elections going forward. County boards of elections must ensure that the votes of all eligible voters are counted using the same standards, regardless of the county in which the voter resides. This numbered memo directs the procedure county boards must use to address deficiencies in ab- sentee ballots. The purpose of this numbered memo is to ensure that a voter is provided every opportunity to correct certain deficiencies, while at the same time recognizing that processes must be manageable for county boards of elections to timely complete required tasks.1 1.No Signature Verification Verification of the voter’s identity is completed through the witness requirement. The voter’s signature on the envelope shall not be compared with the voter’s signature in their registration 1 This numbered memo is issued pursuant to the State Board of Elections’ general supervisory authority over elections as set forth in G.S. § 163-22(a) and the authority of the Executive Direc- tor in G.S. § 163-26. Draft Agenda Packet 2 record because this is not required by North Carolina law.2 County boards shall accept the voter’s signature on the container-return envelope if it appears to be made by the voter, meaning the sig- nature on the envelope appears to be the name of the voter and not some other person. Absent clear evidence to the contrary, the county board shall presume that the voter’s signature is that of the voter, even if the signature is illegible. A voter may sign their signature or make their mark. 2.Types of Deficiencies Trained county board staff shall review each executed container-return envelope the office re- ceives to determine if there are any deficiencies. County board staff shall, to the extent possible, regularly review container-return envelopes on each business day, to ensure that voters have every opportunity to timely correct deficiencies. Review of the container-return envelope for deficien- cies occurs after intake. The initial review is conducted by staff to expedite processing of the envelopes. Deficiencies fall into two main categories: those that can be cured with a certification and those that cannot be cured. If a deficiency cannot be cured, the ballot must be spoiled and a new ballot must be issued, as long as the new ballot is issued before Election Day. See Section 3 of this memo, Voter Notification. 2.1. Deficiencies Curable with Cure Certification (Civilian and UOCAVA) The following deficiencies can be cured by sending the voter a cure certification: •Voter did not sign the Voter Certification. •Voter signed in the wrong place. The cure certification process applies to civilian and UOCAVA voters. 2.2. Deficiencies that Require the Ballot to Be Spoiled (Civilian) The following deficiencies cannot be cured by certification, because the missing information comes from someone other than the voter: •A witness or assistant did not print name.3 However, if the witness forgot to print their name but the witness’s or assistant’s signature is legible such that the name can be deter- mined, the container-return envelope is not deficient and the ballot shall not be spoiled, absent any other deficiency. 2 See also Numbered Memo 2020-15, which explains that signature comparison is not permissi- ble for absentee request forms. 3 If the printed name is readable and on the correct line, even if it is written in cursive script, for example, it does not invalidate the container-return envelope. Draft Agenda Packet 3 •A witness or assistant did not print address.4 •A witness or assistant did not sign. •A witness or assistant signed on the wrong line. Where the witness or assistant signed in place of the voter’s signature, that deficiency cannot be cured and requires the ballot to be spoiled. Otherwise, if all required information from the witness or assistant is present but not on the designated line for each (for example, the witness or assistant printed their name on the address line, printed their address on the name line, and signed), the container-return envelope is not deficient and the ballot shall not be spoiled, absent any other deficiency. •Upon arrival at the county board office, the envelope is unsealed or appears to have been opened and re-sealed. •The envelope indicates the voter is requesting a replacement ballot. If a county board receives a container-return envelope with one of these deficiencies, county board staff shall spoil the ballot and reissue a ballot along with a notice explaining the county board office’s action, in accordance with this numbered memo. 2.3. Deficiencies that require board action Some deficiencies cannot be resolved by staff and require action by the county board. These in- clude situations where the deficiency is first noticed at a board meeting or if it becomes apparent during a board meeting that no ballot is in the container-return envelope, more than one ballot is in the container-return envelope, or two voters’ ballots and container-return envelopes were switched. If the county board disapproves a container-return envelope by majority vote in a board meeting, it shall proceed according to the notification process outlined in Section 3. 4 Failure to list a witness’s ZIP code does not invalidate the container-return envelope. G.S. § 163-231(a)(5). A witness’s or assistant’s address does not have to be a residential address; it may be a post office box or other mailing address. Additionally, if the address is missing a city or state, but the county board of elections can determine the correct address, the failure to list that information does not invalidate the container-return envelope. For example, if a witness lists “Raleigh 27603,” you can determine the state is NC, or if a witness lists “333 North Main Street, 27701,” you can determine that the city/state is Durham, NC. If both the city and ZIP code are missing, staff will need to determine whether the correct address can be identified. If the correct address cannot be identified, the envelope shall be considered deficient and the ballot spoiled in accordance with Section 3. See Numbered Memo 2020-29 for additional information regarding address issues. Draft Agenda Packet 4 3. Voter Notification 3.1. Issuance of a Cure Certification or New Ballot If there are any deficiencies with the absentee envelope, the county board of elections shall contact the voter in writing within one business day of identifying the deficiency to inform the voter there is an issue with their absentee ballot, enclosing a cure certification or new ballot, as directed by Section 2. The written notice shall also include information on how to vote in-person during the early voting period and on Election Day. The written notice shall be sent to the address to which the voter requested their ballot be sent. The outside of the envelope containing the new ballot or cure certification shall indicate that it contains official election mail, unless it is not possible due to the use of a specialized USPS or commercial carrier service envelope. If the deficiency can be cured and the voter has an email address on file, the county board shall also send the cure certification to the voter by email. If the county board sends a cure certification by email and by mail, the county board should encourage the voter to only return one of the certi- fications. If the voter did not provide an email address but did provide a phone number, the county board shall contact the voter by phone to inform the voter that the county board has mailed the voter a cure certification. If the deficiency cannot be cured, and the voter has an email address on file, the county board shall notify the voter by email that a new ballot has been issued by mail to the voter. If the voter did not provide an email address but did provide a phone number, the county board shall contact the voter by phone to inform the voter that the county board has issued a new ballot by mail. A county board shall not reissue a ballot on or after Election Day. If there is a curable deficiency, the county board shall contact voters up until the day before county canvass. 3.2. Receipt of a Cure Certification The cure certification must be received by the county board of elections by 5 p.m. the day before county canvass. The cure certification may be submitted to the county board office by fax, email, in person, or by mail or commercial carrier. If a voter appears in person at the county board office, they may also be given, and can complete, a new cure certification. There is not a postmark re- quirement for cure certifications returned by mail – the cure certification must be received by the deadline, not postmarked by the deadline. The cure certification may only be returned by the voter, the voter’s near relative or legal guardian, or a multipartisan assistance team (MAT). A cure certification returned by any other person is invalid. Voters who require assistance in mailing their ballot pursuant to 08 NCAC 18 .0101(a) may also direct that the cure certification be taken directly to the closest U.S. mail depository or mailbox by a person selected by the voter in accordance with the Rule. It is not permissible for a Draft Agenda Packet 5 cure certification to be submitted through a portal or form created or maintained by a third party. A cure certification may not be submitted simultaneously with the ballot. Any person who is permitted to assist a voter with their ballot may assist a voter in filling out the cure certification, but the cure certification must be signed by the voter. A wet ink signature is not required, but the signature used must be unique to the individual. A typed signature is not acceptable, even if it is cursive or italics such as is commonly seen with a program such as DocuSign. 3.3 County Board Review of a Cure Certification At each absentee board meeting, the county board of elections may consider deficient ballot return envelopes for which the cure certification has been returned. The county board shall consider together the executed absentee ballot envelope and the cure certification. If the cure certification was timely received and contains the voter’s name and signature and was returned by an authorized person, the county board of elections shall approve the absentee ballot. 4. Late Absentee Ballots Voters whose ballots are not counted due to being late shall be mailed a notice stating the reason their ballot was not counted. Late absentee ballots are not curable. If a ballot is received after county canvass, the county board is not required to notify the voter. Draft Agenda Packet Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-29 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Witness or Assistant Address Issues on the Absentee Container-Return Envelope DATE: October 4, 2020 This memo is issued to provide uniform guidance and further clarification on how to determine if the correct address can be identified if the witness’s or assistant’s address on an absentee container- return envelope is incomplete. If No Address If a witness or assistant does not print their address, the envelope is deficient. Missing ZIP Code or City As previously explained in Footnote 3 of Numbered Memo 2020-19, failure to list a witness’s ZIP code does not require a cure. G.S. § 163-231(a)(5). A witness or assistant’s address does not have to be a residential address; it may be a post office box or other mailing address. Additionally, if the address is missing a city or state, but the county board of elections can determine the correct address, the failure to list that information also does not invalidate the container-return envelope. For example, if a witness lists “Raleigh 27603” you can determine the state is NC, or if a witness lists “333 North Main Street, 27701” you can determine that the city/state is Durham, NC. If City and ZIP Code Missing If both the city and ZIP code are missing, staff will need to determine whether the correct address can be identified. If the correct address cannot be identified, the envelope is deficient. If one of the following criteria are met, you can determine the address and the envelope is not deficient: • The witness or assistant’s address is the same as the voter’s address – either because the witness or assistant wrote “same as above” or something similar on the address line or because the partial address provided matches the address of the voter – or it is on the same street as the voter’s address; • The witness’s or assistant’s name and partial address match that of a registered voter in your county in SEIMS; or Draft Agenda Packet 2 • The street address is a valid address in your county. You may confirm this using a county GIS website1 or office, or a similar tool. Do not use an online directions tool such as Google Maps, which does not identify whether an address is valid. If there is only a street address and none of the above criteria are met, the county board cannot determine the address and the envelope is deficient. If a P.O. box is listed but the address provided does not include a city or ZIP code, it is not possible to determine the address and the envelope is deficient. 1 https://www.lib.ncsu.edu/gis/counties.html Draft Agenda Packet