Board Meeting Agenda Packet 10-18-2022
MEETING AGENDA
Date: October 18, 2022 Time: 5:00 PM
Location: Bd of Elections Office, Long Leaf Room Type: Special
Scheduled Attendees:
Oliver Carter III, Chair Rae Hunter-Havens, Elections Director
Derrick R. Miller, Secretary Caroline Dawkins, Elections Deputy Director
Lyana G. Hunter, Member Joan Geiszler-Ludlum, Administrative Elections
Bruce Kemp, Member Technician
Russ C. Bryan, Member Jenna Dahlgren, Elections Logistics Specialist
Noelle Powers, Elections Systems Specialist
Beth Pugh, Elections Specialist
Visitor(s):Lisa Wurtzbacher, Assistant County Manager; Kemp Burpeau, Deputy County Attorney
AGENDA ITEMS
1. Meeting Opening
a. Call to Order
b. Preliminary Announcement
i. Silence Phones
ii. Recording & Streaming
iii. Other
c. Pledge of Allegiance
d. Approval of Agenda
2. Public Comment and Question Period
• 2-minute limit
• 10-minute limit total
3. Old Business
• Approval of Minutes (6/30/22)
4. Statutorily-Required Business
a. Chief Judge and Judge Appointments
b. 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 18, 2022
Subject:
Approval of Agenda
Summary:
N/A
Board Action Required:
Staff recommends approval
Item # 1d
Special Meeting
New Hanover County Board of Elections
October 18, 2022
Subject:
Public Comment
Summary:
This is an opportunity for members of the public to provide comment on elections-related matters. Each
commenter will be limited to two minutes with a ten-minute limit total for all public comments.
Board Action Required:
Discuss as necessary
Item # 2 Item # 2
Special Meeting
New Hanover County Board of Elections
October 18, 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 6/30/22 meeting are included your
packet for review and approval.
Board Action Required:
Staff recommends approval
Item # 3
Board Minutes 06/30/2022 Page | 1
SPECIAL MEETING
New Hanover County Board of Elections
June 30, 2022
1:00 P. M.
ATTENDANCE
Members: Oliver Carter III, Chair
Derrick R. Miller, Secretary
Russ C. Bryan, Member
Lyana G. Hunter, Member
Bruce Kemp, Member
Staff: Rae Hunter-Havens, Executive Director
Caroline Dawkins, Deputy Director
Joan Geiszler-Ludlum, Administrative Technician
Visitors: Lisa Wurtzbacher, Assistant County Manager; Kemp Burpeau, Deputy County
Attorney
Public Attendees: Elizabeth Burns, Jennifer Houseman, Derrick Anderson, Taxpayers; Rocky
Jeter-Webb, Diane Zaryki, Concerned Citizens-Taxpayers; Deborah
Abel, Nancy Hall, Pat Bradford; Susanne Werner, Richard Poole,
NHCDP; Michael Werner; Sidney Hoover, Star-News
Virtual attendees: None, livestreaming was not available
1. MEETING OPENING
a. Call to Order
Chair Carter called the meeting to order at 1:03 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 with Member Hunter arriving shortly
after the meeting was called to order.
b. Preliminary Announcements
Chair Carter reminded the audience to silence their cell phones and that the meeting is being
recorded and live streamed on the internet.
c. Pledge of Allegiance
Chair Carter invited all in attendance to rise and recite the Pledge of Allegiance.
Board Minutes 06/30/2022 Page | 2
d. Approval of Agenda
Member Kemp moved approval of the agenda as presented, second by Secretary Miller. Motion
carried unanimously.
2. New Business
Chair Carter introduced the Board members and staff. He gave an overview of the purpose of the
meeting: preliminary consideration of the protest petition filed by Jennifer Ingulli alleging a
defect in the manner in which votes were counted in the New Hanover County Democratic
Primary School Board contest, and alleging a violation of election law, irregularity, or
misconduct sufficient to cast doubt on the apparent results of the election. Chair Carter said there
is no public comment period or public participation due to the quasi-judicial nature of the
proceeding. He reminded the audience again to silence their cell phones. Given the solemn
nature of the hearing, he asked the Board to speak dispassionately and based on facts.
Chair Carter outlined the due process considerations for the quasi-judicial hearing which assure
that the tribunal, in this case the Board, is free of bias. He read from the School of Government
Handbook the sections regarding bias and recusal of Board members in a quasi-judicial
proceeding:
The parties to this case are entitled to an impartial board. A board member may not
participate in this hearing if she or he has a fixed opinion about the matter, a financial
interest in the outcome of the matter, or a close relationship with an affected person.
Does any board member have any partiality to disclose and recusal to offer?
Hearing no offers to disclose, Chair Carter continued:
It is the policy of this board that a recused member shall step down from the dais and may
take a seat with the audience. The board member may return to the dais for the next
matter.
The parties to this case have rights for any ex parte communication to be disclosed. Ex
parte communication is any communication about the case outside of the hearing. That
may include site visits as well as conversations with parties, staff, or the general public.
Does any board member have any conversations or other communications to disclose?
Member Kemp asked Chair Carter to restate the section on ex parte communications. Chair
Carter said ex parte communication means any communication outside of the hearing. Board
members made the following disclosures regarding their ex parte communications:
• Chair Carter said that he has had communication with the Director, Rae Hunter-Havens,
regarding the protest and hearing procedures.
• Member Kemp said he has had communication with Nelson Beaulieu and Jenna Bosch
during the recounts and after the final recount; he spoke with the person who assisted the
protester, Diane Zaryki; he has been in email communication with others.
• Chair Carter said he has spoken with each board member regarding the filed protest and
about recusal.
Secretary Miller said he had questions about the various documents circulated by Member Kemp
Board Minutes 06/30/2022 Page | 3
and whether those documents address the substance of the protest, intentions to protest and
appeals, stances and conclusions about the issues. What are the implications of such statements?
Chair Carter asked Member Kemp whether all the board members were copied on his emails.
Member Kemp made the additional disclosure, regarding the June 10 meeting to discuss the
sample hand-eye recount, that he intended to request a voluntary recount if the margin between
Mr. Nelson and Ms. Bosch was not sufficient for the State Board of Elections (SBE) to order a
full recount. He said SBE found the differences in the vote totals were within acceptable
tolerances due to the differences between the sensitivity of the DS200s and the DS850. Chair
Carter said now is not the time to re-air previous issues.
Chair Carter noted that Member Kemp’s disclosures have been extensive. Chair Carter asked
whether any member has a personal interest in the outcome of the protest; has prejudged the
outcome of the preliminary review; or is biased? There was no response.
Chair Carter said, based on the disclosures we’ve heard from the board concerning partiality and
ex parte communications, does any member of the board or any party to this matter have an
objection to a board member’s participation in this hearing? Member Hunter said she objects to
Member Kemp’s participation based on his contacts with the parties to the protest and his name
appearing as a witness on the submitted protest form. Chair Carter said that in an email the
previous week, Member Kemp had stated his intention to recuse himself, but the previous day
had said he had reconsidered, wanting to present information and then recuse himself on the vote
on the matter.
Chair Carter asked Member Kemp if he was confident that he could be impartial in light of his
previous remarks? Member Hunter said she has questions about the substance of the assistance
Member Kemp has provided to the protester. Member Kemp asked whether Member Hunter’s
question is in order. Chair Carter ruled the question is in order. Member Kemp said he spoke
with Diane Zaryki, and she used terms from those conversations in the protest form. Chair Carter
asked Member Kemp if he had any subsequent discussions with Ms. Zaryki? Member Kemp said
he had subsequent oral and email discussions. Chair Carter asked the nature of those discussions.
Member Kemp said they discussed the protest process, his reading of the statutes and beyond that
he is unable to recall but perhaps could refresh his memory by reviewing his emails. He said
none of that prevents his impartiality in the hearing. Hearing no further objection and no motion
to recuse any member, Chair Carter proceeded with the hearing.
Chair Carter reviewed the matters to be considered in the hearing. First, the Board would
consider any procedural issues, then address any substantive issues. These issues will be
examined based on the four corners of the filed protest form. Chair Carter then reviewed the
questions to be answered in the Board’s findings from the preliminary hearing:
Procedural Analysis
1. Is the Board authorized to grant the relief sought by Ms. Ingulli?
2. Does Ms. Ingulli have standing to file an election protest in this recount?
3. Was the protest filed timely?
a. 24-hour deadline under 08 NCAC 09.0116(g)
b. 48-hour deadline under N. C. Gen. Stat. §163-182.9(a)
Substantive Analysis
1. Regulations governing dismissal under 08 NCAC 02.0114
2. Probable cause
Board Minutes 06/30/2022 Page | 4
3. The Protest contains five specific allegations. The Board must determine
whether any of these five allegations establish probable cause that an irregularity
occurred.
a. “Irregularities between elections & recounting was [sic] sufficient to flip the
outcome twice?”
b. “Number of votes tabulated & changed results make it unclear as to the
actual winner?”
c. “So many votes changed [that it is] not reasonable to conclude that either the
process is accurate or that the voters determined the outcome of this
election.”
d. “Irregularities were to the extent that they taint the result of the entire race &
cast doubt on its fairness.”
e. “Printed procedures were not followed at recount.”
4. Does the Protest establish probable cause that any such irregularity changed the
outcome of the election?
Member Kemp asked if impropriety is included in the term irregularity? Chair Carter said he is
using irregularity to include violation and impropriety. Chair Carter checked in with the board
members that they have had the opportunity to review the filed protest and related documents,.
Chair Carter then asked whether the Board is authorized to order that a new election be held,
which is the only relief sought by the protestor. Member Kemp asked if the question of the scope
of Board’s authority is required by NC Gen. Stat. §163-182.9? Chair Carter said it is a basic
jurisdictional issue whether the matter lies within the Board’s authority. Member Kemp said he
does not see any such criteria listed in NC Gen. Stat. §163-182.11 as a basis for appeal. Chair
Carter said the Board is not considering an appeal. Member Kemp said he misspoke and meant
the protest. Chair Carter referred him to NC Gen. Stat. §163-182.9(b)(3). In response to further
question from Member Kemp, Chair Carter said that the protest is not justiciable if the remedy
requested is not one that the County Board of Elections can grant. Member Kemp said the
standard is whether the protest as filed substantially complies with the requirements of §163-
182.9. That determination requires the Board to view the protest filing in its entirety, not looking
at any one factor. He said that is the purpose of the preliminary hearing and he is challenged by
Chair Carter’s conclusion.
Chair Carter moved to find that the protest is improperly filed because this Board is not
authorized to grant the remedy the protester seeks, second by Member Hunter, stating that she
agrees with that conclusion and there is no need to go beyond that consideration. Chair Carter
called for any discussion. Member Kemp said §163-182.10 presents two questions to consider in
the preliminary hearing: whether the protest substantially complies with §163-182.9 and whether
it establishes probable cause to believe that a violation of election law or irregularity or
misconduct has occurred. He said the answer to both questions is yes. Chair Carter said he
disagreed and directed the Board’s attention to §163-182.10(d)(2)(a).
Secretary Miller called the question. Member Kemp said §163-182.10(d) applies to the actual
hearing, not the preliminary hearing which is addressed in §163-182.10(a). Member Hunter said
§163-182.10(a)(1) contains the same language as (d). Member Kemp said §163-182.10(c) also
requires hearing new evidence. Member Bryan said the prescribed protest form is addressed to
the county board of elections and asked whether it is also used to file a protest with the State
Board of Elections. Chair Carter said he believes that it is. The protest requests that a new
election be held, which can only be granted by the State Board of Elections. In this case, the
protest could be filed with the State Board to seek that remedy.
Board Minutes 06/30/2022 Page | 5
[Staff advised the Board that the meeting livestream, audio, and recording capability were not
available due to an unscheduled software update. Director Hunter-Havens began audio recording
the meeting. The recording is available on the New Hanover County Board of Elections website,
https://elections.nhcgov.com/wp-content/uploads/2022/07/06.30.2022-BOE-Meeting.m4a.]
Chair Carter restated the motion on the floor is to dismiss the protest because it seeks a new
election, a form of relief this Board is not authorized to grant. He said that the Board will
continue through the other criteria as well even if this motion is adopted. He called for the votes.
Chair Carter, Secretary Miller, Members Bryan and Hunter voted aye; Member Kemp abstained.
Motion carried by majority vote.
Chair Carter moved to the next consideration, whether Ms. Ingulli has standing to file an election
protest of this recount. He reviewed the hierarchy of the various applicable sources of law: first,
the General Statutes, then regulations in the Administrative Code, then formal guidance from the
State Board, then informal guidance from the State Board. It is important to remember that
hierarchy as the Board considers this question of standing. He said that the regulation in the NC
Administrative Code, 08 NCAC 09.0106(g) states that any candidate shall have the right to file a
protest within 24 hours after completion of a discretionary recount, or by noon on the next
business day of the county board of elections, whichever is later, if the protest is related to the
conduct of the recount and may only address allegations related to the recount. In comparison,
NC Gen. Stat. §163-182.9(a) states any eligible voter in the election or any candidate may file a
protest. Where there is tension between the statute and regulation, it is the Board’s duty to give
effect to both. But where they are in conflict, the Board must enforce the statute. Chair Carter
said in his opinion the usual hierarchy does not apply because the statute, in two places, explicitly
authorizes the State Board of Elections to promulgate rules for conducting recounts, subject to
stated guidelines. (NC Gen. Stat. §163-182.7(a)) Therefore, more weight must be given to the
regulation, 08 NCAC 09.0106(g), which allows only candidates to file a protest of a recount,
instead of the broader statutory rule allowing candidates and eligible voters to file an election
protest. Chair Carter moved to dismiss the protest because Ms. Ingulli lacks standing to file this
protest, second by Secretary Miller. Chair Carter called for any discussion of the motion and
directed the Board’s attention to the materials in the agenda packet.
Secretary Miller said he wanted it noted that, were the statute to control, it would render the
regulation meaningless. Member Bryan asked whether the basis for dismissal is solely the
provision in the Administrative Code that only a candidate can file a protest and the protester is
not a candidate? Chair Carter cautioned the Board about relying on the red book of Election
Laws and Related Rules because it is now out of date and the current versions are available
online. Chair Carter said the basis for dismissal is the Administrative Code requirement that only
a candidate may file a protest of a discretionary recount. Member Bryan noted that the protest
form allows filing by either a candidate or an eligible registered voter, but in this situation
involving a recount, only a candidate is eligible to file a protest. Chair Carter confirmed that is
his conclusion, and added that is the closest question before the Board. Member Bryan said that
was also one of the bases for the Director’s recommendation to dismiss the protest. Member
Bryan said he wondered what the objection is to that recommendation. Either you are or you are
not a candidate who is eligible to file the protest. He said he would like to hear more on that
question.
Member Kemp said that NC Gen. Stat. §163-182.7 governs ordering recounts and §163-182.7A
sets additional provisions for hand-eye recounts. The protest alleges irregularities between the
result of the original election canvass and the result of the recount. It is not about ordering
recounts or conducting hand-eye recounts. He contends the matter before the Board is an
election protest, not a recount protest, and therefore standing is determined by §163-182.9(a), not
Board Minutes 06/30/2022 Page | 6
by the NCAC regulation. Member Bryan asked Member Kemp for clarification: are you saying
there is an irregularity between the result of the election and the recount? Member Kemp said
that is the protest’s first allegation. Member Bryan asked if it is an irregularity or a difference?
Member Kemp said irregularity is defined in the statute. Member Kemp said he bases that on his
conversations with the writer of the protest. Member Bryan said he had previously understood
Member Kemp to say he had not had conversations with the writer. Member Kemp said he spoke
with Diane Zaryki who is listed in item 11 as having assisted the protester in preparing the protest
form, which he had disclosed earlier. He never spoke with Ms. Ingulli. He said he checked the
voter registration database to confirm that the protester is an eligible registered voter because she
is registered as an unaffiliated voter.
Secretary Miller asked what constitutes an irregularity? There is a difference between an
irregularity and an expectation. It is his understanding that a change in the vote totals between
Election Day and the recount is not an irregularity but rather an expectation. He said he
understands an irregularity as something that is contrary to procedure or a regulation. Chair
Carter said that is more a substantive issue, but the procedural and the substantive issues bleed
into each other. Determining an irregularity is an issue for later in the preliminary hearing.
Member Hunter said she wanted to return to the objection she raised earlier regarding
Member Kemp’s participation in the hearing. She understands that Member Kemp said he has
spoken with the person who wrote the protest and assisted the person who wrote the protest. She
understands those conversations occurred both verbally and by email. She said she is not sure
how a board member can be an unbiased participant in the hearing in light of those conversations.
It is not one conversation about his concerns being mirrored in the protest, but a matter of on-
going conversations that occurred in writing and orally, both before and after the protest was
filed.
Member Hunter said she objects to Member Kemp’s participation in the hearing and these
discussions because he appears biased. Coupled with the emails the Board has received over the
past two weeks from Member Kemp in which he has outlined his thoughts and position about
different board members participation, she is having a hard time imagining how anyone can be
impartial under these circumstances. She now wishes to object to his continued participation and
offered to make a motion to recuse Member Kemp. He has declined to recuse himself, although a
week ago he said he would probably recuse himself for these reasons. She said she wanted to be
clear that she has this concern with this matter going forward, and having a discussion with
people who have had no contact with the folks who filed the protest versus a person who has had
ongoing conversation with the person who assisted the protester in writing the protest.
Chair Carter said he understands Member Hunter’s concerns and that she can make a motion that
another Board member be recused, that is permissible. That motion would require a second and
discussion, and would be decided by a majority. Member Hunter moved that Member Kemp be
recused for the remainder of the preliminary consideration hearing. Chair Carter called for a
second. Member Kemp objected that there is a motion already on the table. Chair Carter said
that is his motion which is a substantive motion, and this is a procedural motion that the Board
should go ahead to consider. Secretary Miller seconded Member Hunter’s motion for purposes of
discussion. Chair Carter called for discussion of the motion to recuse Member Kemp for the
remainder of the hearing.
Member Kemp would make a countermotion that there appears to be a significant bias against the
protest by most of the parties participating in this discussion. It does not appear to be a balanced
evaluation of the concerns expressed by the protester, and it seems that from the beginning we
have had that bias. He said he would call into question the perceived bias of every player aside
Board Minutes 06/30/2022 Page | 7
from him regarding the conduct of this protest. Member Bryan asked Member Kemp if he is
saying the Chair is biased? Member Kemp said no, rather many of the comments and actions and
the dismissal document are against the protester. There does not appear to him to be an open
mind here to evaluate the protest. Member Bryan said the Board is not here to evaluate the
substance of the protest obviously, that this is a procedural review of the format. He said all
this is irregular in that neither candidate is supporting this protest, but we need to approach it
dispassionately and he certainly does not want his fairness called into question because he may
come down on a different side than Member Kemp. Member Bryan said he is doing his very best
to follow the regulations and the laws in applying those to the facts and circumstances presented.
Unlike a regular hearing of some type, we have been provided all the evidence well in advance so
that we might review it and research as you have yourself. That some members may have come
to some conclusions on some aspects is not surprising to him. But I do not conclude that
indicates bias. Member Kemp said that would be his statement too.
Secretary Miller offered one thought and one question. He is not clear how far the Board can
apply quasi-judicial principles here. He asked if it is normal for a judge in a case to have on-
going conversations with the participants before hearing the case, issuing long statements to
members of the public before it comes before the tribunal. He said he is not sure how far to take
that analogy, but he said it strikes him that these extended documented statements sent out to the
public and these on-going conversations before and after the filing of the protest strikes him as
unjudicial. He said he would like to hear Member Bryan’s views as he is the only Board member
of the same party as Member Kemp and is not the subject of the motion. Member Kemp asked
the Chair to restate Secretary Miller’s question as he did not follow it. Chair Carter said
Secretary Miller asked for Member Bryan’s view on the motion.
Member Bryan said he is unlikely to vote in favor of this motion because he feels it is incumbent
on all the members to determine and evaluate their level of participation in producing the protest
and advising others. He is not aware of the depth of that involvement, but was approached by
someone who told him that Member Kemp was on the radio discussing aspects of the protest.
Member Kemp said he had not discussed the protest on the radio, but has discussed the election
and recount process as a regular commentator on all elections. Member Bryan said he is not in a
position to fully understand Member Kemp’s involvement, but he regularly attempts to be
balanced in his decisions. Member Bryan said he hopes nothing he said in this discussion causes
Member Kemp to think he is biased, but, again, he is not likely to vote for this motion.
Member Kemp said he wanted to note that he was the only Board member who attended the
entirety of the second recount, except for lunch time on Thursday. Chair Carter thanked him
again for making himself available throughout that time, as the presence of one Republican Board
member was required to be there and he was very generous with his time and flexibility. Member
Kemp said he wanted to acknowledge all the facts and circumstances of the recount, not
necessarily about his role.
Chair Carter said where he comes down on this motion is that the Board should recuse Member
Kemp, based on the number of communications and the detailed nature of the communications
over the last week and a half. Chair Carter said he thinks he understands Member Kemp’s
concerns, but this is not the appropriate procedural vehicle to hear those concerns. He said he
fears that, in the remainder of these proceedings, even though Member Kemp wants to be
unbiased and approach this with an open mind and do his duty, he thinks it is appropriate for
Member Kemp to be recused. He would be welcome to remain in the meeting and listen. Chair
Carter said this is not a judicial proceeding. It is a quasi-judicial proceeding. Chair Carter said he
is very uncomfortable with the way this protest has come about and the degree of Member
Kemp’s involvement in it, not personally but from a quasi-judicial perspective.
Board Minutes 06/30/2022 Page | 8
Hearing no further discussion, Chair Carter called for the vote on the motion to recuse Member
Kemp for the duration of the preliminary consideration hearing. Chair Carter, Secretary Miller
and Member Hunter voted aye; Members Bryan and Kemp voted no. Motion carried by majority
vote. Chair Carter directed Member Kemp to a reserved seat in the audience.
Chair Carter returned to consideration of the substantive motion before the Board, whether
the protester has standing to file an election protest of the recount. Pursuant to the regulation
under discussion, the protester does not have standing. The question before the Board is whether
the protester has standing under the statute, NC Gen. Stat. §163-182.7. We are considering the
two enabling clauses, specifically §§163-182.7 and 182.9(a), specifically directing the State
Board of Elections to adopt rules and regulations for the conduct of recounts. Chair Carter said,
in his view, those enabling clauses elevate the regulation, in this narrow instance of a recount, to a
superior position to the statute which applies more generally to protests. It is for that reason that
he made the motion, which has been seconded, that the protest should be dismissed because the
protester lacks standing. Member Hunter said she is thinking that this explanation, along with
Secretary Miller’s question, why we have this code if we are not supposed to follow it. Taken
together she agrees with that view, that the protester does not have standing.
Chair Carter confirmed it is the basis for his standing argument, that 08 NCAC 09.0106 is the
operative provision, and the broader, more general provision in the statute does not apply in this
special situation, citing §163-182.9(a). After reviewing the cited statute and regulation, Member
Bryan said Chair Carter’s reasoning and analysis is probably right, but he is not confident in that
conclusion.
Hearing no further discussion, Chair Carter called for a vote on the motion to dismiss the protest
because the protester lacks standing to file a protest of the recount because she is not a candidate.
Chair Carter, Secretary Miller, and Member Hunter voted aye; Member Bryan voted no. Motion
carried by majority vote, establishing a second independent basis for dismissal.
Chair Carter moved to the third potential basis for dismissal, whether the protest was filed timely.
He said this consideration turns on the same issue the Board previously discussed: NC Gen. Stat.
§163-182.9(b) sets a 48-hour deadline after canvass to file a protest concerning the counting or
tabulating of votes, including a statement of good reason for delay, while 08 NCAC 09.0106(g)
sets a deadline of 24 hours or noon the following day, whichever is later, after a recount
concerning the conduct of the recount. He said it is important for the Board to consider each
basis for dismissal separately, on its own merits, from the two prior considerations. Chair Carter
moved the protest should be dismissed because it was not filed by the applicable deadline. Chair
Carter called for any discussion.
Member Bryan asked for clarification of the time the protest was filed. Chair Carter confirmed
the protest was filed at 2:40 p.m. on June 17. The recount concluded with adjournment at 1:16
p.m. on June 16. That also marks the conclusion of the final canvass for purposes of §163-
182.9(b). Member Bryan recalled having previous discussion as to when the clock started on any
protest that might be filed by a candidate. Chair Carter said even though the Board has already
determined that this protester lacked standing to file the protest, the Board should consider the
question of the timeliness of filing the protest separately. That prompts him to ask the question
this way: if the protester had standing to file the protest under §163-182.9(a), was the protest
filed in accordance with the deadline in that provision of the statute? Chair Carter said that the
regulation sets the protest filing deadline as 24-hours from the conclusion of the recount, which
the protester did not meet, while the statute sets two different deadlines: one is before the
beginning of the county canvass meeting, which for the purposes of this discussion was the June
Board Minutes 06/30/2022 Page | 9
16 meeting; the other is 5:00 p.m. of the second business day after the county board has
completed its canvass and declared the results. If there is an argument that the second deadline
applies here, then the protest would be filed timely. The second deadline would apply (1) if the
protester presented good cause for the delay, which it does not attempt to do in his opinion; or (2)
the protest addresses an irregularity other than vote counting or result tabulation. This is where
the issue bleeds from procedural analysis into substantive analysis because we must review the
substance of the protest to what the protest is alleging.
Secretary Miller said he seconded Chair Carter’s motion and said he agreed that the protest did
not meet the deadline set in 08 NCAC 09.0106(g), and that the canvass ended upon the
publication of the results. As for the statute deadline, while the protest form does not state a good
reason for delay, it does allege an irregularity in the last allegation, that printed procedures were
not followed in the recount, while the other allegations which are called irregularities in fact are
not irregularities.
Chair Carter said he understands the distinction Secretary Miller is making, and the fifth
allegation comes closest to stating an irregularity, but it lacks sufficient specificity to amount to a
true allegation of fact. After he wrestled with it, Chair Carter concluded that an allegation of fact
sufficient to withstand this level of review need not be very detailed, but it needs to say
something more specific. Here, the Board had numerous printed documents providing guidance
to the Board, none binding on the Board, other than the statutes and the regulations. The
authority to conduct the recount is vested in this Board. This is getting into a substantive
discussion, but since the protest does not allege with any specificity what act or omission was
improper, he cannot even find it to be a statement of fact. The Board is not obligated to second-
guess what the protester is trying to say. When it comes to a formal, solemn, serious, quasi-
judicial proceeding, it is incumbent on the protester to set forth the reasons for the protest, with
reasonable specificity, what the Board is alleged to have done wrong. Generally, protests that
don’t contain that level of substance are dismissed summarily and administratively. If there were
a well-stated allegation of fact, for instance, about procedure not followed, then he would agree
that this protester could file this protest, if also meeting the other standing requirements. Member
Hunter agreed that the challenge with the allegation is that it is too generic. The last line might at
best open the door but what does it point to? “Printed procedures” could refer to anything. If the
protest stated a specific concern with the referenced procedures, it might be sufficient, but as
presented it is too vague. Chair Carter noted that the protester checked the box on the Election
Protest Form that states the protest alleges “a violation of election law, irregularity, or misconduct
sufficient to cast doubt on the apparent result of the election.” But then in question 6, which asks
for factual allegations supporting the protest, there is only the conclusory statement that “printed
procedures were not followed at recount.”
Member Bryan said that he understands all that and noted that a protest heard by the previous
Board was voted for hearing because the protest listed specific evidence for the allegations. He
objected to it then because it did not seem to have substance. If a protester is going to make an
allegation, they need to be prepared to substantiate it. If they do not, it must be dismissed. These
forms are signed under penalty of perjury and in front of a notary. Anyone who is signing the
form in the face of a Class I felony, Member Bryan said he wants to give them the benefit of the
doubt. The statement goes on to say that the protester acknowledges she must “prove by
substantial evidence either the existence of a defect in the manner by which votes were counted
or results tabulated or the occurrence of a violation of election law, irregularity, or misconduct,
either of which were sufficient to cast doubt on the apparent results of the election.” Member
Bryan said, when someone is willing to subject themselves to a Class I felony, he wants to
believe they are taking the matter seriously and have actual, substantial evidence of the alleged
irregularities. He said he wants to give them the benefit of the doubt and hear their basis for the
Board Minutes 06/30/2022 Page | 10
allegation. He said he has concerns with lots of aspects of this protest. But as to the motion
before the Board regarding the 24-hour filing deadline, he said the protest fails.
Chair Carter said the motion is whether it should be dismissed on the alternative grounds that the
protester did not allege a substantive irregularity sufficient to avail herself of the 48-hours after
canvass deadline. Member Bryan asked if the motion is stated in the alternative, and Chair Carter
said it is. Member Bryan said he appreciates that Chair Carter is going through each requirement,
even though he feels it is not necessary, and respects his purpose to air out all the issues. The
Board could have stopped after the first vote, but maybe it is best to go through each element. He
favors the longer time frame and acknowledges it is a close call. Chair Carter said it is
appropriate to identify all applicable bases on which the protest may be dismissed and address
each one in the Board’s final order, for the benefit of the candidates, the protester and the public.
Chair Carter addressed Member Bryan’s view to give the protester the benefit of the doubt on
signing the form in the face of the penalty of a Class I felony, but said he had a different view.
He said he was surprised the protester would swear under penalty of perjury that her statements
were true to her own knowledge and then put down things that were not of her own knowledge.
Member Bryan said it is a good reminder that you do not file a protest because someone told you
something.
Member Hunter raised a point of clarification, whether it makes sense to consider, if the 24-hour
deadline applies, what is the board’s position? If the 48-hour deadline applies, what is the
Board’s position? She said it may be better to separate the two considerations since the Board is
working through each ground. She said it is getting confusing as to which time frame to apply.
In response to a question from Chair Carter, Member Hunter said she is suggesting two different
motions to make it cleaner and clearer.
Chair Carter withdrew his previous motion and made a new motion to dismiss the protest because
it was not filed within 24 hours of the final canvass and therefore, even if the protester has
standing to file the protest, under 08 NCAC 09.0106(g), the protester failed to meet the applicable
deadline, second by Secretary Miller. Chair Carter called for any further discussion. In response
to a question from Member Bryan, Chair Carter clarified that the motion is a conditional
statement, that if 08 NCAC 09.0106(g) applies to this protest, it does not meet the 24-hour
deadline. After additional discussion, Chair Carter restated his motion: he moved the protest
should be dismissed because, even if the protester is found to have standing to file the protest
under 08 NCAC 09.0106(g), it was not filed within 24 hours and was therefore not timely filed,
second by Member Hunter. Motion carried unanimously.
Chair Carter moved to dismiss the protest because, even if the deadline set forth by NC Gen. Stat.
§163-182.9 is found to apply, the protest does not sufficiently allege an irregularity so as to be
entitled to avail herself of the 48-hour post-canvass deadline, second by Member Hunter. Chair
Carter called for any discussion.
Secretary Miller reviewed the requirements of NC Gen. Stat. §163-182.9:
a. If the protest concerns the manner in which votes were counted or results tabulated, the
protest shall be filed before the beginning of the county board of election's canvass
meeting.
Secretary Miller said this section requires the protest to be filed before the canvass meeting and
this protest clearly was not filed timely.
Board Minutes 06/30/2022 Page | 11
b. If the protest concerns the manner in which votes were counted or results tabulated and
the protest states good cause for delay in filing, the protest may be filed until 5:00 P.M.
on the second business day after the county board of elections has completed its canvass
and declared the results.
Secretary Miller noted that the protest challenges the manner in which votes were counted in
sections 5 and 6. Chair Carter said this provision is a two-part standard: the protest must both
allege that and state good cause for delay. Secretary Miller said the Board’s previous discussion
was that the protest failed to state good cause for delay and that was not contested among the
Board members, although it was not voted upon. He concluded that section b does not apply.
c. If the protest concerns an irregularity other than vote counting or result tabulation, the
protest shall be filed no later than 5:00 P.M. on the second business day after the county
board has completed its canvass and declared the results.
Secretary Miller said this is where the Board debated whether the allegations of an irregularity are
sufficiently substantive. Chair Carter said, if the protest met this criterion, the Board would find
that the protest was filed before 5:00 P.M. on the second day after completion of the canvass.
Secretary Miller said the Board is not actually debating the timeliness of filing the protest but
rather the type of irregularity alleged, namely an irregularity other than vote counting or result
tabulation. Chair Carter said this requires the Board to engage in some level of substantive
analysis to determine whether the statement rises to the level of an allegation. Member Bryan has
said that he is inclined to allow some leeway to the protester. Chair Carter said his sense is that
the statement does not rise to an actual allegation. People filing protests must be diligent and
seek the help of an attorney. He said he is not inclined to give that level of deference to the
protester. Secretary Miller said he finds it confusing that the Board is discussing timing when the
real question is, first, does it concern an irregularity other than vote counting or result tabulation,
and second, then timing comes into the discussion. He would like to consider whether it meets
the first criteria separately, and then the timing issue. Chair Carter asked if it would be helpful to
table his motion, proceed to discuss the substantive issues, and then return to this question.
Secretary Miller agreed that would be helpful. Chair Carter said the statute asks the Board to
conduct both procedural and substantive review of the protest, which will automatically answer
this procedural question under discussion. Member Bryan said the Board is honing in on an
unrelated issue but he does not oppose doing so.
Chair Carter moved to table his previous motion, second by Secretary Miller. Hearing no
additional discussion on the motion to table, Chair Carter called for the vote. Motion carried
unanimously.
Chair Carter said the Board will proceed with discussion of the substantive analysis. He directed
the Board’s attention to 08 NCAC 02.0114, Dismissal of Improper Protest Filings. Chair Carter
read subsection (a):
(a) The county board of elections shall dismiss any matter purporting to arise as an
election protest under G.S. 163-182.9 on the following bases:
(1) The matter fails to contest the manner in which votes were counted or results
tabulated, or fails to allege a violation of election law or irregularity or
misconduct sufficient to cast doubt on the results of the election;
(2) The individual submitting the matter was neither a registered voter eligible to
participate in the protested contest within the county nor a candidate for
nomination or election in the protested contest;
Board Minutes 06/30/2022 Page | 12
(3) The matter was not filed in accordance with G.S. 163-182.9 or was not filed
on the form prescribed in 08 NCAC 02 .0111;
(4) The protest is duplicative or was made for the purpose of delay;
(5) The protest filing, taking into account the totality of the circumstances, fails
to include evidence which, if true, substantiates the probable occurrence of an
outcome-determinative defect in the manner in which votes were counted or
results tabulated, or the probable occurrence of an outcome-determinative
violation of election law, irregularity, or misconduct; or
(6) The matter, including the initial filing and all subsequent oral or written
submissions, fails to allege facts sufficient to constitute substantial evidence of
the occurrence of an outcome-determinative violation of election law,
irregularity, or misconduct.
The State Board may consider protests in accordance with G.S. 163-182.12.
Member Hunter asked that the quality of the audio recording be checked since the Board is taking
up discussion of a substantive manner. Both Chair Carter and Director Hunter-Havens are
recording the meeting on their cell phones in the absence of the usual livestream audio and video
recording. In response to Member Bryan’s question about the necessity of a recording, Director
Hunter-Havens said that recording the preliminary consideration of the protest is optional.
Should the matter move to a hearing, the services of a court reporter for a transcript would be
required.
Chair Carter noted the six listed bases for dismissal of the protest. If the Board determines that
the protest fits any one of these descriptions, then the Board will dismiss the protest. Numbers
(3) and (4) are not so much substantive as procedural, while (1), (5) and (6) are substantive in
nature. He read those subsections and said there is a lot going on in each one.
Chair Carter said what all three sections have in common is that the protest must allege,
regardless of the act or omission stated, it must have altered the outcome of the election. That is
one part of the Board’s substantive inquiry. The second part is whether the allegation establishes
probable cause that the act or omission changed the outcome. Chair Carter said he found this
confusing initially because he did not see anything in the statutes, but then found a line of cases
where the courts have consistently held that if the allegation is not outcome-determinative, or
alleged to be outcome-determinative, it does not get a hearing.
Chair Carter said the decisions are clear and consistent over time: the irregularity alleged must be
sufficient to determine the outcome or alter the results of the election. He noted that all three
subsections of section (a) contain that language: “sufficient to cast doubt on the results of the
election.” One thing the Board must consider is whether this protest sets forth probable cause
that anything happened that changed the outcome. Another component is this: does the protest
set forth probable cause that an irregularity occurred, meaning misconduct, irregularity or
violation of election law, three related concepts appearing throughout the statutes and regulations.
Here, this protest does not allege any violation of election law and no misconduct is alleged.
Instead, the petition alleges irregularities. That is the analysis: does it set forth probable cause
that an irregularity occurred, and does it set forth probable cause that the irregularity affected the
outcome of the election. The statements contained in this protest are largely attempting to
express discomfort with how close the election contest was; how successive recounts affected the
vote totals in the contest; how the number of votes changed, suggesting that the vote totals would
change if counted again. Chair Carter said he thinks those are the three concerns this protester
attempts to articulate. But none of those are irregularities. Chair Carter said this is an extremely
close election for this school board contest, and are not decided by two votes very often. The
legislature has set a special set of procedures that apply when an election is close, meaning within
Board Minutes 06/30/2022 Page | 13
one percent of the vote total. Those procedures were followed here because the results in this
contest met those criteria. What the legislature and State Board of Elections have not done is set
another set of procedures to be followed when an election result is super-duper close. While the
concerns behind this protest are valid, he does not think those concerns indicate an irregularity in
the recount. His conclusion is that none of these statements put forth probable cause that an
irregularity occurred. Most are conclusory statements and express discomfort with the results of
the recount.
Chair Carter moved that the protest should be dismissed because it does not set forth probable
cause that any irregularity, violation of law, or misconduct occurred, second by Secretary Miller.
He called on the Board to discuss the motion.
Member Bryan said he agrees as to allegations one through four, but the fifth allegation, alleging
printed procedures were not followed, if proved by substantial evidence, would also require
evidence that the violation altered the outcome. He said he is aware that this protester would not
be able to know whether the printed procedures were followed. He said while he agrees about
the first four allegations, he struggles with the fifth allegation. Chair Carter said that the concept
of probable cause in the civil versus criminal context is less well known, but the State Board has
provided guidance on evaluating probable cause which was included in the agenda materials:
Probable cause is a commonsense, practical standard: Is the material submitted by the
protester sufficient for a reasonable and prudent person to believe that the apparent
result of the election was swayed by election law violations, irregularity, or misconduct.
It does not mean than such a belief is necessarily correct or more likely true than false. A
probability of an outcome-determinative irregularity is sufficient.1
Member Bryan asked whether “probability” means more likely than not, or does it mean
possibility. Chair Carter said it means “possibility,” adding that a well-written protest must
include a forecast of the evidence to be successful. Member Hunter said that, in the criminal
context, the standard is “more likely than not,” which is not a high bar but does require
overwhelming evidence to meet the standard. She added that these allegations do not meet that
criteria when this protest lacks any specificity of the basis for the allegation and is insufficient for
the Board to consider further.
Hearing no further discussion, Chair Carter called for the vote on the motion that the protest
should be dismissed because it fails to establish probable cause that an irregularity, violation of
election law, or misconduct occurred. Motion carried unanimously.
Chair Carter said the next item is consideration whether the protest establishes probable
cause that any irregularity affected the outcome of the election. The question seems nonsensical
since the Board has determined that no actual irregularity is alleged and should be answered no.
Chair Carter moved that the protest should be dismissed on the basis that it does not establish
probable cause that any irregularity affected the outcome of the election, second by Secretary
Miller. Motion carried unanimously and establishes a separate basis for dismissal.
Chair Carter said that brings back the tabled motion and moved to recall the tabled motion for
consideration, second by Member Hunter. Motion to recall carried unanimously.
1 State Board of Elections, “Election Protest Procedures Guide,” last updated June 27, 2022. Emphasis in
the original.
Board Minutes 06/30/2022 Page | 14
Chair Carter restated the main motion: does the protest set forth sufficient allegation of
irregularity that was properly and timely filed, assuming that the protester was eligible to file the
protest, second by Secretary Miller. Motion carried unanimously and establishes a separate basis
for dismissal.
Chair Carter said the next step is to prepare an order and distributed a draft for the Board
members to review, which will need revision to reflect the Board’s decisions in the preliminary
hearing. Member Kemp asked if he may return to the dais, and Chair Carter agreed. Member
Bryan asked if the Board must review and vote on the order today, and is the order the basis for
any appeal, or is review de novo? Chair Carter asked the Board members to review the draft for
its accuracy in reflecting their decisions today. Deputy County Attorney Burpeau said an appeal
is likely de novo, but it is good to have an order documenting this Board’s actions and rationale.
He said he was impressed with the Board’s thoroughness in their deliberations in the hearing and
consideration of the alternative contingencies.
Chair Carter noted that the meeting has already exceeded the allotted time and that some Board
members may need to leave. He suggested the members review the proposed order now, identify
necessary changes, and vote to approve it subject to those revisions. He would like to have it
officially entered by tomorrow for service on the protester. [Chair Carter left the meeting, turning
the chair over to Secretary Miller.] The Board members reviewed the draft order and noted
several revisions to be made. [Chair Carter returned to the meeting and resumed the chair.]
Member Kemp asked Deputy County Attorney Burpeau whether having a pre-drafted order
indicates bias against the protest, suggesting a decision was already made before the hearing.
Deputy County Attorney Burpeau said the hearing indicated the Board was meticulous in looking
at all the different issues set forth and drawing conclusions. In courts and other contexts, it is not
unusual to have a draft order presented. He said he does not see that as prejudicial action.
Member Kemp asked about the statutory provisions for appeal, NC Gen. Stat. §163-182.11,
where it allows for an amended protest or appeal to the State Board. His question is whether this
Board would hear an amended protest. Chair Carter said he is not sure. Member Kemp said he
understands the denial of the protest is due to the lack of specifics in the support of the allegations
in paragraph 6 of the protest. This presumes that any protester has access to knowledge of those
specifics and other challenges related to rulings regarding this protest address whether the
protester has standing to file the protest and whether it was timely filed. Would an amended
protest come back before the County Board of Elections? Chair Carter said he has not looked at
that question and is not sure how an amended protest would work. Director Hunter-Havens said
an amended protest must also be filed by the established deadlines.
Member Bryan said that the established deadlines are intended to allow public confidence in the
election results. He said it makes no sense to him to allow amendment of a dismissed protest that
has not passed procedural analysis. The same protester with the same issues should not be
permitted a second bite of the apple.
Chair Carter directed the Board’s attention back to the proposed order. Board members pointed
out several changes to be made. Chair Carter proposed that the Board vote to approve the draft
order as he will amend it based on Board-suggested revisions, send it to Director Hunter-Havens
for the Board to sign by July 5. Chair Carter moved approval of the order, subject to technical
corrections submitted to him within 18 hours by the Board members, second by Secretary Miller.
Motion carried unanimously.
Board Minutes 06/30/2022 Page | 15
3. ADJOURNMENT
Chair Carter moved to adjourn, second by Member Hunter. Motion carried unanimously. The
meeting adjourned at 3:29 pm.
The next Board meeting is scheduled to be held on July 12, 2022, at 5:15 p.m. in the Board of
Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC.
APPROVED BY: RESPECTFULLY SUBMITTED BY:
__________________________ __________________________________
DERRICK R. MILLER RAE HUNTER-HAVENS
SECRETARY ELECTIONS DIRECTOR
Special Meeting
New Hanover County Board of Elections
October 18, 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. 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:
Chief Judge and Judge Nominations for 2022 General Election
Board Action Required:
Discuss as necessary and action required
Item # 2 Item # 4a
Special Meeting
New Hanover County Board of Elections
October 18, 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 # 4b
Deficiencies that require board action:
• Deficiency is first noticed at a board meeting
• No ballot in a container-return envelope
• More than one ballot in a container-return envelope
• Two voter’s ballots and container-return envelopes are switched
Due to recent federal court order, voters, including those in assisted living facilities, who need assistance
voting absentee by mail due to their disability may now receive assistance from any person they choose.
Under the Americans with Disabilities Act, a disability is a physical or mental impairment that causes
someone to be substantially limited in a major life activity. Under this federal order, a voter who is a
patient or resident in a covered facility and needs assistance due to a disability may also receive
assistance from an elected official, political party officeholder, or candidate. If voters in covered
facilities do not need assistance due to a disability, then they may still request assistance from a near
relative, legal guardian, or a MAT member. If an individual who belongs to one of these three categories
is not available within seven calendar days of a voter’s request, then the voter may get assistance from
anyone except: an owner, manager, director, or employee of the hospital, clinic, nursing home, or rest
home where the voter is patient or resident; an elected official, candidate, or office holder in a political
party; or a campaign manager or treasurer for a candidate or political party.
If a voter is physically unable to sign or make their mark due to a disability, the person providing
assistance with the ballot should write in the signature line, “Disabled-cannot sign” and complete the
voter assistant certification on the application. In addition, the assistant may return a cure certification
for a voter who needs assistance due to a disability.
Since the board has delegated so much of the administrative detail of the election functions, duties, and
work of the Board to the Elections Director, the staff are responsible for completing many of the
administrative duties associated with by mail voting. These duties include, but are not limited to, the
following:
• After intake, inspecting the absentee ballot applications on each container-return envelope and
making an initial determination as to whether the envelope was properly executed. If a
deficiency exists, staff follow the process outlined in Numbered Memo 2021-03 to either send
the voter a cure certification or spoil the ballot and reissue the ballot with a notice explaining
the county board’s actions.
• Performing an initial sort of ballot applications into categories upon initial review and presented
those recommendations to the board at each meeting. Those categories may include
designations for recommended approval, recommended disapproval, envelopes awaiting a cure
certification, and those that staff have questions about that require deliberation by the board.
• Verifying the list of ballot applications against the absentee pollbook.
If the volume of by-mail ballots increases significantly, the county board may consider other ways to
streamline this process to expedite the review of absentee ballot applications. In accordance with
guidance issued by the NC State Board of Elections, the New Hanover County Board of Elections
authorized staff at their October 11, 2022 meeting to use a bipartisan team to duplicate UOCAVA ballots
that cannot be read by the DS850 high-speed central scanner prior to their assigned absentee meeting
date provided that all requirements outlined in Numbered Memo 2020-25 are followed.
Another way to expedite this process is for the county board to authorize the use two bipartisan teams
of board members to review the applications during each meeting. The board by majority vote may also
accept staff’s recommendations for approval without reviewing all absentee applications (Numbered
Memo 2020-25). However, this delegation must include a process for the board to spot-check the
envelopes to ensure accuracy and consistency.
The review of certain types of applications cannot be delegated to staff members. Specifically, county
board are required to individually review all applications that 1) have been recommended for
disapproval by staff, (2) have a cure certification associated with that application, or (3) where staff
need further guidance from the board as to whether the application was properly executed.
At the meetings when ballots are optically scanned, a bipartisan duplication team is required to be
present in the event a ballot needs to be duplicated to be successfully scanned by the central scanner.
The scanning cannot begin until a majority of the board members and at least one board member from
each party is physically in attendance. If it is not possible to scan all absentee ballots approved at a
meeting, the board may recess the meeting to a later date, which could be the next absentee meeting.
If this action is taken, county boards should send out a special meeting notice as soon as possible for the
reconvened meeting. The 48-hour requirement for special meeting notices is not required for the
reconvened meeting.
At the end of each absentee meeting, all absentee applications and ballots should be reconciled with the
number of ballot applications approved by the board equal in number to the number of ballots scanned
by the tabulator.
Document/s Included:
NCSBOE Numbered Memos 2022-11, 2021-07, 2021-03, 2020-29 and 2020-25 , Absentee Poll Book and
Reconciliation Log Sheet (Provided at meeting)
Board Action Required:
Discuss as necessary and action required
1
Mailing Address: P.O. Box 27255, Raleigh, NC 27611
(919) 814-0700 or(866)522-4723
Fax:(919) 715-0135
Numbered Memo 2022-11
TO: County Boards of Elections
FROM: Karen Brinson Bell, Executive Director
RE: Court Order Regarding Assistance for Absentee Voters with Disabilities
DATE: August 29, 2022
On July 11, 2022, a federal court issued an order invalidating state laws preventing certain
individuals from helping disabled voters request, complete, and submit absentee ballots.1 The
court determined that these laws, as applied to disabled voters, violate federal law. Specifically,
Section 208 of the Voting Rights Act permits any voter who is blind, disabled, or unable to read
or write to request “assistance by a person of the voter’s choice, other than the voter’s employer
or agent of that employer or officer or agent of the voter’s union.”2
This numbered memo provides guidance for county boards to comply with the court order. It
supersedes Numbered Memo 2020-15 and any other prior memo to the extent they provide
guidance regarding who may assist an absentee voter who needs assistance due to a disability.
Assistance for Absentee Voters with Disabilities
Voters who need assistance voting absentee by mail due to their disability may now receive
assistance from any person they choose. This could be a friend, relative, or any other person the
voter chooses to assist them. A candidate may not witness the ballot of a voter unless the
candidate is the voter’s near relative.3
Voters in Covered Facilities
A voter who needs assistance due to a disability and is a patient or resident in a covered facility
may receive assistance from any person they choose. They may receive assistance from the staff
1 Disability Rights NC v. State Board of Elections, 5:21-CV-361-BO, Order on Motion for Summary
Judgment (E.D.N.C. July 11, 2022). The specific laws that were invalidated with respect to assisting
disabled voters are N.C.G.S. §§ 163-226.3, -230.1, -230.2, -230.3, and -231(b)(1).
2 52 U.S.C. § 10508.
3 However, a voter living in covered care facilities may receive assistance from a candidate if the voter
needs assistance due to the voter’s disability.
2
of the hospital, clinic, nursing home, or rest home where they are a patient or resident. There is
no requirement that the facility staff complete a log when they assist a voter, although the facility
may choose to do so. Facility staff are not required to assist a voter if they do not wish to do so
or are instructed not to do so by the facility. Facility staff may continue to rely on multipartisan
assistance team (MAT) members to assist their residents, if that is the facility’s preference.
Under the court’s order, a voter in a covered facility who needs assistance due to a disability may
also receive assistance from an elected official, political party officeholder, or candidate. They
may still request and use a MAT, but they are not required to do so.
A voter who is a patient or resident in a covered facility but who does not need assistance due to
a disability may request assistance from a near relative, legal guardian, or a MAT. Recall, the
court’s order changes the rules only for voters who need assistance due to a disability. If a near
relative, legal guardian, or MAT is not available within seven calendar days of such a voter’s
request, the voter may get assistance from anyone EXCEPT:
• An owner, manager, director, or employee of the hospital, clinic, nursing home, or rest home where the voter is a patient or a resident;
• An elected official, candidate, or officeholder in a political party; or
• A campaign manager or treasurer for a candidate or political party.4
Assistance with Absentee Voting
Absentee Requests
Upon request of a voter who needs assistance due to a disability, any person may assist the voter
by:
• Completing the absentee request form, according to the voter’s instruction;
• Making the absentee request on the voter’s behalf, according to the voter’s instruction;
and
• Returning the request form, according to the voter’s instruction. The assistant may return
the request form by mail or in person, or through the State Board’s online portal.
4 N.C.G.S. § 163-226.3(a)(4).
3
The assistant must complete Section 9 of the request form, including providing their name and
address. The form is invalid if the assistant does not provide information such that the assistant’s
name and address can be determined.5
If the assistant is making the request for the voter (i.e., not just helping to fill out the form, but
making the request in lieu of the voter), they must also complete and sign Section 8. As long as
the assistant’s address is listed in either Section 8 or Section 9, it is not required to be listed twice
since the assistant’s address can be determined if it is listed once.
Absentee Container-Return Envelopes
Upon request of a voter who needs assistance due to a disability, any person, including a MAT
member, may assist the voter by:
• Completing the absentee container-return envelope, according to the voter’s instruction;
• Marking the ballot, according to the voter’s instruction;
• Signing the envelope if, due a disability, the voter is unable to sign or make their mark;
and
• Returning the ballot, according to the voter’s instruction. The assistant may return the
ballot by mail or in person to the county board of elections office or a one-stop site in the
county.
The assistant must complete the Voter Assistant Certification section of the envelope. If a
voter is physically unable to sign or make their mark due to disability, the person assisting with
the ballot should write in the signature line, “Disabled - cannot sign” and must complete the
Voter Assistant Certification located on the back of the ballot return envelope.
The assistant may return a cure certification for a voter who needs assistance due to a disability.
See Numbered Memo 2021-03 for information about the cure process for deficient absentee
container-return envelopes. County boards shall keep a log for cure certifications that are
hand-delivered to the county board office.
Absence for Sickness or Physical Disability
If a voter expects to be unable to go to the voting place to vote in person on Election Day
because of that voter’s sickness or other physical disability, any of the following people may
5 N.C.G.S. § 163-230.2(e1) states: “If a voter is in need of assistance completing the written request form
due to blindness, disability, or inability to read or write and there is not a near relative or legal guardian
available to assist that voter, the voter may request some other person to give assistance, notwithstanding
any other provision of this section. If another person gives assistance in completing the written request
form, that person’s name and address shall be disclosed on the written request form in addition to the
information listed in subsection (a) of this section.” (Emphasis added.)
4
make the request for absentee ballots in person to the board of elections of the county in which
the voter is registered after 5:00 p.m. on the Tuesday before the election but not later than 5:00
p.m. on the day before the election:
• The voter;
• The voter’s near relative or legal guardian; or
• Any other person, if the voter needs assistance due to a disability.
Upon receipt of a completed request form, the county board shall personally deliver the
application and ballots to the voter, near relative, legal guardian, or assistant.6
Assistance with In-Person Voting
The requirements for who may assist a voter voting in person have not changed.
A disabled or illiterate voter who is voting in person may receive assistance from a person of the
voter’s choice, other than the voter’s employer or agent of that employer or an officer or agent of
the voter’s union.7 There is no limit on how many voters an assistant may assist, if properly
requested.
Answers to Frequently Asked Questions
Q1: May a voter who needs assistance due to a disability receive assistance from a
candidate?
A: It depends. A voter who needs assistance due to a disability may receive assistance from
a candidate if the voter is a patient or resident of covered facility.
However, the court order did not enjoin G.S. § 163-237(c), which prevents a candidate
from serving as a witness otherwise. Therefore, a voter who is not a patient or resident of
a covered facility is prohibited from having a candidate serve as a witness unless the
candidate is their near relative.
Q2: What is the definition of a disability?
A: Under the Americans with Disabilities Act, a disability is a physical or mental
impairment that causes someone to be substantially limited in a major life activity.8 This
means someone who has substantial limitations on the ability to perform everyday
6 N.C.G.S. § 163-230.1(b).
7 N.C.G.S. § 163-166.8(a)(2).
8 42 U.S.C. § 12102(1)(A).
5
things—such as seeing, hearing, walking, standing, speaking, reading, concentrating,
thinking, and writing—as compared to most people in the general population.9
Most people living in nursing homes and other congregate care settings need help with at
least one aspect of daily living and will generally be considered to have a disability.
Federal law states that public entities are not to engage in demanding tests to determine
an individual’s level of disability.10 For the purposes of seeking assistance with absentee
voting, however, the disability should substantially impair an activity that pertains to the
absentee voting process.11 All of the examples of everyday activities listed above could
pertain to some aspect of the absentee voting process.
Q3: Is advanced age a reason for assistance (for example, curbside is open to those who
due to age or disability are unable to enter the enclosure)?
A: No, age alone is not a reason the voter may receive assistance under the court order. The
voter must need assistance due to a disability, but a disability may be age-related. See the
answer to Question 2 for the definition of a disability.
Q4: How do we know if someone has a disability?
A: See the answer to Question 2 regarding the definition of a disability. The voter’s
disability is confirmed through the attestations on the request form and the absentee
envelope. These contain language requiring the assistant to attest that the voter asked for
help due to the voter’s disability. It is not for the county board to inquire into the
specifics of a voter’s attested-to disability that renders the voter in need of assistance. If
the assistance portion of an otherwise valid request form or envelope is properly
completed, the county board shall approve it.
If the county board has reason to believe that non-disabled voters are receiving assistance
to which they are not entitled, or that disabled voters’ wishes are not being respected,
they shall forward such evidence the State Board’s Investigations Division.
9 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 35.108(c)(1), (d)(1)(v).
10 28 C.F.R. § 35.101; see 28 C.F.R. §§ 35.108(a)(2)(i), (c)(2)(i)-(ii), (d)(1)(i)-(viii), .
11 The Voting Rights Act permits a voter to get assistance from a person of their choice if that voter
“requires assistance to vote by reason of blindness, disability, or inability to read or write[.]” 52 U.S.C. §
10508 (emphasis added).
6
Q5: What if a disabled voter in a covered facility wishes to get assistance from and use as
witnesses two staff members in the facility, but the voter’s near relative is concerned
about undue influence and has contacted the county board to complain?
A: A voter who needs assistance due to a disability has the right to select an assistant of their
choice under the court order (and federal law). If a family member is concerned that
someone has improperly influenced a voter, the county board of elections should refer
them to the State Board’s Investigations Division. It is a crime to interfere with a voter
when marking their ballot, or to defraud a blind or illiterate voter from marking the ballot
selections of their choosing.12
Q6: Is the assistant required to respect the secrecy of the voter’s ballot?
Yes. Any person who assists a voter must keep the voter’s ballot choices confidential. It
is a crime for any person who has access to another person’s ballot to reveal how the
person voted.13
Q7: Are there any changes to the requirement that an absentee voter have two witnesses
or a notary?
A: No. An absentee ballot must still be witnessed by two people or one notary public. The
witnesses must be at least 18 years old.
Q8: What is the definition of a covered facility?
A: A “covered facility” is any facility that provides residential or in-patient healthcare in the
State that is licensed or operated pursuant to Chapter 122C, Chapter 131D, or Chapter
131E of the General Statutes, including, for example, a hospital, clinic, nursing home, or
adult care home; or by the federal government or an Indian tribe.14
12 N.C.G.S. §§ 163-273(a)(4) and 163-274(a)(13).
13 N.C.G.S. § 163-274(b).
14 08 NCAC 16 .0101(b).
Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135
Numbered Memo 2021-07
TO: County Boards of Elections
FROM: Karen Brinson Bell, Executive Director
RE: Deficiencies in Notary Portion of Absentee Application and Certificate
DATE: August 31, 2021
This numbered memo explains how county boards of elections should treat technical deficiencies
in the execution of the notary portion of an absentee container return envelope (officially called
the absentee ballot application and certificate). It replaces Numbered Memo 2020-07. The
guidance balances the goal of uniformly applying the law while seeking to not punish the voter for
a notary’s inadvertent mistake or error.
G.S. § 163-231(a) requires a voter to mark the absentee by-mail ballot in the presence of two
witnesses or one notary public, who must sign the container return envelope as witness(es). If
witnessed by a notary, the statute requires the notary public to affix their valid notarial seal to the
envelope and include the phrase “Notary Public” below his or her signature.
State Board of Elections staff consulted with the North Carolina Department of the Secretary of
State’s Electronic Notarization and Notary Enforcement Division regarding the validity of an
incomplete notarization on the container return envelope. While the Secretary of State’s Office
cannot adjudicate an absentee ballot, they provided useful information on how the notary statutes
work in conjunction with our election statutes, including that there is a presumption of regularity
in the absence of fraud on the part of the notary, or evidence of a knowing and deliberate violation
of the notary statutes by the notary.1 The Secretary of State’s Office has requested that notarial
errors on the absentee ballot container-return envelope be reported to them.
Certain technical errors in executing the notary’s portion of the container return envelope are not
considered deficiencies. Other errors are considered deficiencies that require the ballot to be
spoiled and reissued in accordance with Section 2.2 of Numbered Memo 2021-03.
1 G.S. 10B-99(a) (relevant portion): “In the absence of evidence of fraud on the part of the notary, or evidence of a
knowing and deliberate violation of this Article by the notary, the courts shall grant a presumption of regularity to
notarial acts so that those acts may be upheld, provided there has been substantial compliance with the law.”
2
1. Technical Errors That Are Not Considered Deficiencies
The following technical errors do not affect the sufficiency, validity, or enforceability of the
notarial certificate itself or the underlying document and are not considered deficiencies:
• Notary leaves off the name of the voter or misspells the voter’s name;
• Notary does not write the expiration date of their commission;
• Notary does not include the name of the county or State;
• The notary seal is hard to read;
• The notary does not include the date the notary witnessed the marking of the ballot; or
• A combination of the above.2
2. Technical Errors That Are Considered Deficiencies
The following errors in the notarial certificate are considered deficiencies that cannot be cured by
certification, and require that the ballot be spoiled and reissued in accordance with Numbered
Memo 2021-03:
• The notary’s signature is missing. Pursuant to G.S. § 163-231(a)(5), the notary’s signature
is required.
• The notarial seal is missing altogether or contains missing information. G.S. § 163-231(a)
requires the notary to affix a valid notarial seal to the envelope.
2 G.S. § 10B-68 (relevant portion):
(a) Technical defects, errors, or omissions in a notarial certificate shall not affect the sufficiency, validity,
or enforceability of the notarial certificate or the related instrument or document.
[…]
(c) As used in this section, a technical defect includes those cured under G.S. 10B-37(f) and G.S. 10B-
67. Other technical defects include, but are not limited to, the absence of the legible appearance of the notary's
name exactly as shown on the notary's commission as required in G.S. 10B-20(b), the affixation of the
notary's seal near the signature of the principal or subscribing witness rather than near the notary's signature,
minor typographical mistakes in the spelling of the principal's name, the failure to acknowledge the principal's
name exactly as signed by including or omitting initials, or the failure to specify the principal's title or office,
if any.”
G.S. 10B-67: “An erroneous statement of the date that the notary's commission expires shall not affect the sufficiency,
validity, or enforceability of the notarial certificate or the related record if the notary is, in fact, lawfully commissioned
at the time of the notarial act. This section applies to notarial acts whenever performed.”
G.S. 10B-37(f): “The failure of a notarial seal to comply with the requirements of this section shall not affect the
sufficiency, validity, or enforceability of the notarial certificate, but shall constitute a violation of the notary's duties.”
3
3. Fraud Indicators
If there are indications of fraud on the absentee envelope, whether they relate to the notary section
or other sections of the envelope, this information should be sent to the State Board’s Investigations
Division. Examples of fraud indicators include:
• A notary or witness completed multiple applications containing technical errors;
• The handwriting for the voter’s signature and witness’s signature appears identical;
• The envelope appears to have been tampered with; and
• There are stray or suspicious markings on the envelope.
Mailing Address: P.O. Box 27255 Raleigh, NC 27611
(919) 814-0700 or(866) 522-4723
Fax: (919) 715-0135
Numbered Memo 2021-03
TO: County Boards of Elections
FROM: Karen Brinson Bell, Executive Director
RE: Absentee Container-Return Envelope Deficiencies
DATE: June 11, 2021
This numbered memo replaces Numbered Memo 2020-19, which was first issued on August 21,
2020 and subsequently revised and reissued on September 22, 2020, and October 17, 2020. The
State Board is required to provide a cure process for voters whose absentee container-return enve-
lopes contain certain deficiencies. There were two separate court orders requiring a cure process.
The Consent Judgment in NC Alliance v. State Board of Elections, No. 20-CVS-8881 (Wake Co.
Sup. Ct. Oct. 2, 2020), which formed part of the basis for the revised 2020 memo, was limited to
the 2020 general election. The preliminary injunction in Democracy NC v. State Board of Elec-
tions, 476 F.Supp.3d 158 (M.D.N.C. Aug. 4, 2020), was not limited to a particular election. This
numbered memo revises the cure process that was first established for the 2020 general election
and applies to all elections going forward.
County boards of elections must ensure that the votes of all eligible voters are counted using the
same standards, regardless of the county in which the voter resides.
This numbered memo directs the procedure county boards must use to address deficiencies in ab-
sentee ballots. The purpose of this numbered memo is to ensure that a voter is provided every
opportunity to correct certain deficiencies, while at the same time recognizing that processes must
be manageable for county boards of elections to timely complete required tasks.1
1.No Signature Verification
Verification of the voter’s identity is completed through the witness requirement. The voter’s
signature on the envelope shall not be compared with the voter’s signature in their registration
1 This numbered memo is issued pursuant to the State Board of Elections’ general supervisory
authority over elections as set forth in G.S. § 163-22(a) and the authority of the Executive Direc-
tor in G.S. § 163-26.
2
record because this is not required by North Carolina law.2 County boards shall accept the voter’s
signature on the container-return envelope if it appears to be made by the voter, meaning the sig-
nature on the envelope appears to be the name of the voter and not some other person. Absent
clear evidence to the contrary, the county board shall presume that the voter’s signature is that of
the voter, even if the signature is illegible. A voter may sign their signature or make their mark.
2.Types of Deficiencies
Trained county board staff shall review each executed container-return envelope the office re-
ceives to determine if there are any deficiencies. County board staff shall, to the extent possible,
regularly review container-return envelopes on each business day, to ensure that voters have every
opportunity to timely correct deficiencies. Review of the container-return envelope for deficien-
cies occurs after intake. The initial review is conducted by staff to expedite processing of the
envelopes.
Deficiencies fall into two main categories: those that can be cured with a certification and those
that cannot be cured. If a deficiency cannot be cured, the ballot must be spoiled and a new ballot
must be issued, as long as the new ballot is issued before Election Day. See Section 3 of this
memo, Voter Notification.
2.1. Deficiencies Curable with Cure Certification (Civilian and UOCAVA)
The following deficiencies can be cured by sending the voter a cure certification:
•Voter did not sign the Voter Certification.
•Voter signed in the wrong place.
The cure certification process applies to civilian and UOCAVA voters.
2.2. Deficiencies that Require the Ballot to Be Spoiled (Civilian)
The following deficiencies cannot be cured by certification, because the missing information
comes from someone other than the voter:
•A witness or assistant did not print name.3 However, if the witness forgot to print their
name but the witness’s or assistant’s signature is legible such that the name can be deter-
mined, the container-return envelope is not deficient and the ballot shall not be spoiled,
absent any other deficiency.
2 See also Numbered Memo 2020-15, which explains that signature comparison is not permissi-
ble for absentee request forms.
3 If the printed name is readable and on the correct line, even if it is written in cursive script, for
example, it does not invalidate the container-return envelope.
3
•A witness or assistant did not print address.4
•A witness or assistant did not sign.
•A witness or assistant signed on the wrong line. Where the witness or assistant signed in
place of the voter’s signature, that deficiency cannot be cured and requires the ballot to be
spoiled. Otherwise, if all required information from the witness or assistant is present
but not on the designated line for each (for example, the witness or assistant printed their
name on the address line, printed their address on the name line, and signed), the
container-return envelope is not deficient and the ballot shall not be spoiled, absent any
other deficiency.
•Upon arrival at the county board office, the envelope is unsealed or appears to have been
opened and re-sealed.
•The envelope indicates the voter is requesting a replacement ballot.
If a county board receives a container-return envelope with one of these deficiencies, county board
staff shall spoil the ballot and reissue a ballot along with a notice explaining the county board
office’s action, in accordance with this numbered memo.
2.3. Deficiencies that require board action
Some deficiencies cannot be resolved by staff and require action by the county board. These in-
clude situations where the deficiency is first noticed at a board meeting or if it becomes apparent
during a board meeting that no ballot is in the container-return envelope, more than one ballot is
in the container-return envelope, or two voters’ ballots and container-return envelopes were
switched. If the county board disapproves a container-return envelope by majority vote in a board
meeting, it shall proceed according to the notification process outlined in Section 3.
4 Failure to list a witness’s ZIP code does not invalidate the container-return envelope. G.S. §
163-231(a)(5). A witness’s or assistant’s address does not have to be a residential address; it
may be a post office box or other mailing address. Additionally, if the address is missing a city
or state, but the county board of elections can determine the correct address, the failure to list
that information does not invalidate the container-return envelope. For example, if a witness lists
“Raleigh 27603,” you can determine the state is NC, or if a witness lists “333 North Main Street,
27701,” you can determine that the city/state is Durham, NC. If both the city and ZIP code are
missing, staff will need to determine whether the correct address can be identified. If the correct
address cannot be identified, the envelope shall be considered deficient and the ballot spoiled in
accordance with Section 3. See Numbered Memo 2020-29 for additional information regarding
address issues.
4
3. Voter Notification
3.1. Issuance of a Cure Certification or New Ballot
If there are any deficiencies with the absentee envelope, the county board of elections shall contact
the voter in writing within one business day of identifying the deficiency to inform the voter there
is an issue with their absentee ballot, enclosing a cure certification or new ballot, as directed by
Section 2. The written notice shall also include information on how to vote in-person during the
early voting period and on Election Day.
The written notice shall be sent to the address to which the voter requested their ballot be sent.
The outside of the envelope containing the new ballot or cure certification shall indicate that it
contains official election mail, unless it is not possible due to the use of a specialized USPS or
commercial carrier service envelope.
If the deficiency can be cured and the voter has an email address on file, the county board shall
also send the cure certification to the voter by email. If the county board sends a cure certification
by email and by mail, the county board should encourage the voter to only return one of the certi-
fications. If the voter did not provide an email address but did provide a phone number, the county
board shall contact the voter by phone to inform the voter that the county board has mailed the
voter a cure certification.
If the deficiency cannot be cured, and the voter has an email address on file, the county board shall
notify the voter by email that a new ballot has been issued by mail to the voter. If the voter did
not provide an email address but did provide a phone number, the county board shall contact the
voter by phone to inform the voter that the county board has issued a new ballot by mail.
A county board shall not reissue a ballot on or after Election Day. If there is a curable deficiency,
the county board shall contact voters up until the day before county canvass.
3.2. Receipt of a Cure Certification
The cure certification must be received by the county board of elections by 5 p.m. the day before
county canvass. The cure certification may be submitted to the county board office by fax, email,
in person, or by mail or commercial carrier. If a voter appears in person at the county board office,
they may also be given, and can complete, a new cure certification. There is not a postmark re-
quirement for cure certifications returned by mail – the cure certification must be received by the
deadline, not postmarked by the deadline.
The cure certification may only be returned by the voter, the voter’s near relative or legal guardian,
or a multipartisan assistance team (MAT). A cure certification returned by any other person is
invalid. Voters who require assistance in mailing their ballot pursuant to 08 NCAC 18 .0101(a)
may also direct that the cure certification be taken directly to the closest U.S. mail depository or
mailbox by a person selected by the voter in accordance with the Rule. It is not permissible for a
5
cure certification to be submitted through a portal or form created or maintained by a third party.
A cure certification may not be submitted simultaneously with the ballot. Any person who is
permitted to assist a voter with their ballot may assist a voter in filling out the cure certification,
but the cure certification must be signed by the voter. A wet ink signature is not required, but the
signature used must be unique to the individual. A typed signature is not acceptable, even if it is
cursive or italics such as is commonly seen with a program such as DocuSign.
3.3 County Board Review of a Cure Certification
At each absentee board meeting, the county board of elections may consider deficient ballot return
envelopes for which the cure certification has been returned. The county board shall consider
together the executed absentee ballot envelope and the cure certification. If the cure certification
was timely received and contains the voter’s name and signature and was returned by an authorized
person, the county board of elections shall approve the absentee ballot.
4.Late Absentee Ballots
Voters whose ballots are not counted due to being late shall be mailed a notice stating the reason
their ballot was not counted. Late absentee ballots are not curable.
If a ballot is received after county canvass, the county board is not required to notify the voter.
Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135
Numbered Memo 2020-29
TO: County Boards of Elections
FROM: Karen Brinson Bell, Executive Director
RE: Witness or Assistant Address Issues on the Absentee Container-Return Envelope
DATE: October 4, 2020
This memo is issued to provide uniform guidance and further clarification on how to determine if
the correct address can be identified if the witness’s or assistant’s address on an absentee container-
return envelope is incomplete.
If No Address
If a witness or assistant does not print their address, the envelope is deficient.
Missing ZIP Code or City
As previously explained in Footnote 3 of Numbered Memo 2020-19, failure to list a witness’s ZIP
code does not require a cure. G.S. § 163-231(a)(5). A witness or assistant’s address does not have
to be a residential address; it may be a post office box or other mailing address. Additionally, if
the address is missing a city or state, but the county board of elections can determine the correct
address, the failure to list that information also does not invalidate the container-return envelope.
For example, if a witness lists “Raleigh 27603” you can determine the state is NC, or if a witness
lists “333 North Main Street, 27701” you can determine that the city/state is Durham, NC.
If City and ZIP Code Missing
If both the city and ZIP code are missing, staff will need to determine whether the correct address
can be identified. If the correct address cannot be identified, the envelope is deficient. If one of
the following criteria are met, you can determine the address and the envelope is not deficient:
• The witness or assistant’s address is the same as the voter’s address – either because the
witness or assistant wrote “same as above” or something similar on the address line or
because the partial address provided matches the address of the voter – or it is on the same
street as the voter’s address;
• The witness’s or assistant’s name and partial address match that of a registered voter in
your county in SEIMS; or
2
• The street address is a valid address in your county. You may confirm this using a county
GIS website1 or office, or a similar tool. Do not use an online directions tool such as
Google Maps, which does not identify whether an address is valid.
If there is only a street address and none of the above criteria are met, the county board cannot
determine the address and the envelope is deficient. If a P.O. box is listed but the address provided
does not include a city or ZIP code, it is not possible to determine the address and the envelope is
deficient.
1 https://www.lib.ncsu.edu/gis/counties.html
Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135
Numbered Memo 2020-25
TO: County Boards of Elections
FROM: Karen Brinson Bell, Executive Director
RE: Absentee Board Meetings
DATE: September 22, 2020 (updated September 23, 2020)
Legal Requirements for Absentee Meetings
General Requirements
Beginning every Tuesday on the fifth Tuesday before Election Day, county boards of elections
must hold a public meeting at 5:00 p.m. to review and act upon absentee ballots.1 For the general
election, this date is September 29, 2020. The county board of elections may change the time of
these meetings (to an earlier or later time) and may provide for additional meetings. However,
absentee meetings may not be held prior to Tuesday, September 29, 2020. Any meetings that are
held at a different time on Tuesdays and any additional meetings must be noticed in a county
newspaper at least 30 days prior to the election, October 4, 2020. You must also send notice of
absentee meetings to your regular notice list, including to the county political parties.
At each absentee board meeting, the board must act upon all absentee container-return envelopes
received prior to that meeting and after the previous absentee meeting.2 An absentee meeting must
be held if there are any absentee ballots (absentee by mail or one-stop early voting ballots) for the
board to review. Absentee meetings should only be cancelled if the board has not received any
absentee container-return envelopes since the last absentee meeting.3 Because of this statutory
requirement and the anticipated significant increase in absentee ballots returned, it is
1 G.S. §163-230.1(f), as amended by 2020-17.
2 See G.S. § 163-230.1(e): “At its next official meeting after return of the completed container-
return envelope with the voter’s ballots, the county board of elections shall determine whether
the container-return envelope has been properly executed (emphasis added).”
3 See G.S. § 163-230.1(f), entitled “Required Meeting of County Board of Elections”: “During
the period commencing on the fifth Tuesday before an election […] the county board of elections
shall hold…(emphasis added).”
2
strongly recommended that your board schedule additional absentee board meetings and/or
begin meetings earlier than 5:00 p.m.
A county board may recess an absentee board meeting to a date and time certain if it is not possible
to complete review of absentee ballots during the specified meeting period. You should send out
the notice as soon as possible but it is not required to be sent 48 hours in advance of the reconvened
meeting if that is not possible based on when the meeting was recessed from.
To determine how many additional absentee meetings you need to schedule, consider how many
absentee ballot requests your county has received to date, how many total requests your county
received for the November 2016 election, and estimate how many requests you anticipate based
on the county’s current rate of requests. For example, if your county received 6,000 requests in
November 2016 and you anticipate a 50% increase for this election, that would be 9,000 requests
total. If you have six absentee board meetings and everyone who requested a ballot returned one,
your board would need to consider approximately 1,500 ballots per meeting. If your board sched-
uled ten absentee meetings, your board would consider around 900 ballots per meeting.
County Board Member Attendance
Absentee board meetings require a quorum of members present. A quorum is three members.4
If at all possible, at least one member from each political party should be represented at each
absentee meeting when the board is approving absentee applications. If you only have three mem-
bers present, you may have one Democrat and two Republican board members, or two Democrat
and one Republican board members present. Because board members must be able to view
absentee envelopes in order to approve or disapprove the ballot, a quorum of board members
must be physically present during each absentee board meeting.
Once a quorum is physically present, remaining board members may attend the meetings via live
video feed, but they must have a secure way to view the meeting and to participate. They must be
able to view all materials that board members are reviewing to make decisions on the absentee
envelopes.
A majority of board members present at a meeting must vote for an action for it to pass.
COVID-19 Precautions
Board members, county board staff, and any public participants attending meetings in person must
wear face masks during the meeting unless an exception applies. All participants must socially
distance and wash or sanitize their hands regularly, but the board and staff should also be cautious
4 G.S. § 163-31(d): “A majority of the members shall constitute a quorum for the transaction of
board business.”
3
about the excessive use of hand sanitizer when handling ballots. County boards may consider
purchasing additional protective equipment such as gloves and transparent tabletop shields to form
cubicles around each board member during absentee meetings. CARES Act funds may be used for
these purchases. See Numbered Memo 2020-14 for more information.
Public Attendance
Absentee board meetings are public meetings and are subject to North Carolina’s open meetings
laws. The recommendation in Numbered Memo 2020-11 to conduct board meetings telephoni-
cally due to the COVID-19 pandemic does not apply to absentee meetings where the board is
reviewing absentee return envelopes—a primarily visual process. For absentee meetings, it is
recommended that the county board locate a meeting room large enough to accommodate members
of the public with appropriate social distancing. If it is not possible to procure a sufficiently large
space for those who may want to attend in person, the county board of elections must broadcast
the absentee board meetings via video feed using a service such as WebEx or Microsoft Teams.
If the county board does not have access to appropriate audiovisual equipment or software, the
board may use CARES Act funds to procure the necessary equipment or teleconferencing services.
The public must be able to see and hear the proceedings without compromising the secrecy of any
voter’s ballot. Staff must ensure that the public cannot view any voted ballots or other confidential
information, such as voter signature, on the feed. A staff member should be assigned to monitor
the video feed throughout the absentee board meeting to ensure that confidential information is
not viewable by the public. County board members and staff must be particularly mindful of ballot
secrecy when duplicating ballots and inserting ballots into the tabulator.
The public is not permitted to disrupt the process of adjudicating the validity of absentee applica-
tions by the board and is not part of the deliberation process during absentee board meetings. The
decision of the county board of elections as to the validity of an envelope is final and is not subject
to public comment, objection, or review.5
Confidentiality of Absentee Register
G.S. § 163-228 requires county boards of elections to keep a register of absentee ballot requests
that includes information about the request, the address to which the ballot should be sent, the date
of the request, the voter’s precinct, and other information. In 2019, the General Assembly
amended subsection (c) of that section to make the absentee request register confidential and not
5 G.S. § 163-230.1(f): “The decision of the board on the validity of an application for absentee
ballots shall be final subject only to such review as may be necessary in the event of an election
contest.”
4
a public record until Election Day.6 County boards of elections are not permitted to release copies
of absentee request forms or identifying information that could be used to determine that a voter
requested an absentee ballot.
Absentee request data is no longer confidential when the ballot is returned to the county board of
elections office. Therefore, names of absentee voters may be read aloud during the absentee board
meetings, as the ballot has been returned to the county board office at that point. Reading from
lists of voters who have requested absentee ballots or otherwise releasing the names of voters with
outstanding requests is prohibited until the ballot is returned or until Election Day. It is a Class G
felony for a person to “steal[], release[], or possess[] the official register of absentee requests for
mail-in absentee ballots as provided in G.S. 163-228 prior to the opening of the voting place.”7
Delegation of Preparatory Steps to Staff
General Authority
The county board of elections has the authority to delegate to its director “so much of the admin-
istrative detail of the election functions, duties, and work of the board, its officers and members,
as is now, or may hereafter be vested in the board or its members as the county board of elections
may see fit.”8 However, the board may not delegate to a director or other staff any of its quasi-
judicial or policymaking duties and authority.
Given the significant increase in absentee ballots during this election, the county board should
determine which preparatory tasks staff can complete prior to absentee board meetings. A dele-
gation of administrative duties by the board to the director or staff should occur by majority
vote. The delegation may be by resolution or the approved motion should be documented in the
minutes. It should delegate specific preparatory steps that staff can perform prior to absentee board
meetings, and the delegation must provide for oversight by the board.
Preparatory steps include:
• Inspecting container-return envelopes for deficiencies and contacting voters as required by
Numbered Memo 2020-19 (revised September 22, 2020). Please note that voters must be
contacted within one business day of when staff identify the deficiency. It is not permissible
to wait for the absentee board meeting to contact the voter about a deficiency.
• Sorting container return envelopes into categories for the board to review and approve.
• Verifying the list of ballot envelopes against the absentee pollbook.
6 See Section 1.1.(a) of Session Law 2019-239.
7 G.S. § 163-237(d6), as amended by Session Law 2019-239.
8 G.S. § 163-35(d).
5
• Performing ballot duplication.
Staff Review of Envelopes
At each absentee board meeting, the county board of elections reviews each absentee container-
return envelope to determine whether it has been properly executed, and if so, to approve the ap-
plication and ballot.9 Given the volume of absentee ballots the county board is required to review
and act upon at each meeting, the board should consider ways to streamline the process.
To that end, a county board may take preparatory steps to expedite review of ballot envelopes by
the board. After intake, staff must inspect the absentee ballot envelope and make an initial deter-
mination as to whether the envelope was properly executed. If a deficiency exists, they must
follow the cure process in Numbered Memo 2020-19. Staff should also perform an initial sort of
ballot envelopes into categories upon initial review and to present those recommendations to the
board at each absentee board meeting. Those categories may include designations for recom-
mended approval, recommended disapproval, envelopes awaiting a cure certification, and those
that staff have questions about that require deliberation by the board. The delegation may also
require staff to prepare a report to the board indicating the number of ballot envelopes in each
category for reconciliation purposes.
The board may by majority vote accept staff’s recommendation for absentee ballot envelopes that
staff have reviewed and recommended for approval. The delegation must include a process for
the board to spot-check the envelopes to ensure accuracy and consistency. However, the board
must individually review all ballot envelopes that: (1) have been recommended for disapproval by
staff, (2) have a cure certification associated with that ballot envelope, or (3) where staff need
further guidance from the board as to whether the envelope was properly executed.
After absentee envelopes are approved by the board, the task of stamping every envelope with
“Approved” and stamping or otherwise affixing the chair’s signature or initials to the ballot enve-
lopes may be delegated to staff. Alternatively, the board’s delegation may authorize the board to
sign a cover sheet containing a list of envelopes that were acted upon during the meeting and
indicating whether those envelopes were approved or disapproved in lieu of signing the individual
envelopes. The delegation may also apply to review and approval of one-stop absentee applica-
tions.
It is also permissible for the board to determine that bipartisan teams of board members to pair off
to review absentee ballot envelopes during each meeting if the board votes to allow this.
Whether the county board delegates the initial review of absentee envelopes to staff or chooses to
have a bipartisan team of board members review envelopes during the meeting, all board members
9 G.S. § 163-230.1(e) and (f).
6
present at the meeting must approve or disapprove the ballots. A decision as to whether an enve-
lope is properly executed must be decided by a vote of the board as a whole and not by individual
members.10
Scanning Absentee Ballots at Absentee Board Meetings
It is important to understand the difference between scanning and tabulating. “Scanning” is a
preparatory step that occurs when the approved absentee ballots are opened, removed from the
envelope, and inserted into the tabulator. The tabulator reads the ballots but does not print the
totals at that time, and no election returns are released. “Tabulating” or “counting” occurs on
Election Day and is the result of the scanning that has taken place.
A county board of elections may by majority vote decide to scan absentee ballots during each
absentee meeting.11 Due to the significant increase in absentee ballots this election, it is
strongly recommended that county boards authorize the scanning of approved ballots during
absentee board meetings instead of waiting until Election Day.
The scanning cannot begin until a majority of the board members and at least one board member
of each political party is in attendance. If a board member of each political party is not available,
the chair or other member of the executive committee of the county political party of the absent
member must be present. The political party representative shall act as an official witness to the
scanning and shall sign the absentee ballot abstract as an “observer.”12
Staff may enter the approved ballots into the tabulator, but each board member present is respon-
sible for and must observe and supervise the opening of the envelopes and scanning of the ballots.13
It is not permissible for approved ballot envelopes to be opened, for ballots to be removed
from the envelope, or for ballots to be inserted into the tabulator outside of a board meeting.
These tasks cannot be delegated to staff to complete outside of a board meeting.
If the board chooses to scan approved ballots during absentee meetings, it should consider ways
to make the process as efficient and streamlined as possible. For example, the board could approve
staff-recommended ballots first, then direct the staff to open those envelopes and enter the ballots
10 “The county board of elections shall constitute the proper official body to pass upon the validity
of all applications for absentee ballots received in the county; this function shall not be performed
by the chairman or any other member of the board individually.” G.S. § 163-230.1(f).
11 G.S. § 163-234(3).
12 G.S. § 163-234(9).
13 G.S. § 163-234(5).
7
into the tabulator while the board reviews the envelopes that require further consideration and
those that staff have recommended be disapproved.
Scanning of ballots must be performed during a board meeting, and ballots must be scanned at the
same meeting during which they were approved.14 The number of approved absentee ballots must
be reconciled with the number of ballots inserted into the tabulator. Reconciliation should be
completed at each board meeting. If it is not possible to scan all approved ballots at that meeting,
the board may recess the scanning to a time and date certain, which could be the next absentee
board meeting. You should send out the notice as soon as possible but it is not required to be sent
48 hours in advance of the reconvened meeting. Ballots should be processed in groups, so that
ballots from all opened ballot envelopes are processed in the same meeting.
Election Day Meeting
County boards are strongly encouraged to begin counting ballots at 2 p.m. rather than 5 p.m. on
Election Day to avoid a delay in absentee results being released on election night.15 County boards
may begin counting UOCAVA ballots beginning on 9 a.m. on Election Day.
To begin counting ballots prior to 5 p.m., a county board must adopt a resolution at least two weeks
prior to the election stating the hour and place of counting of absentee ballots. The resolution also
may provide for an additional meeting following the day of the election and prior to the day of
canvass to count absentee ballots received pursuant to G.S. 163-231(b)(ii) or (iii) as provided in
subdivision (11) of G.S. § 163-234(11). A copy of the resolutions shall be published once a week
for two weeks prior to the election, in a newspaper having general circulation in the county. Notice
may additionally be made on a radio or television station or both, but such notice shall be in addi-
tion to the newspaper and other required notice.
At its meeting on Election Day, county boards must count all absentee ballots that have come in
prior to 5 p.m. on the day before Election Day. The election results may not be released until after
the polls close.
Ballot Duplication
UOCAVA ballots and ballots that have been damaged or otherwise cannot be read by the tabulator
must be duplicated in order to be scanned by the machine and to avoid having to manually enter
14 G.S. § 163-234(3): “Notwithstanding the provisions of subdivision (2) of this section, a county
board of elections may, at each meeting at which it approves absentee ballot applications pursu-
ant to G.S. 163-230.1(c) and (c1), remove those ballots from their envelopes and have them read
by an optical scanning machine, without printing the totals on the scanner.” (Emphasis added).
15 G.S. § 163-234(2).
8
the voter’s selections into the reporting software. County boards may adopt a policy to authorize
a bipartisan team of staff members to duplicate ballots outside of an absentee board meeting. The
policy must include the following:
• Each bipartisan duplication team must consist of at least three staff members, with no more
than two members being of the same political affiliation. It is a best practice to have at
least four members, two of each political party, to ensure accuracy.
• The director must supervise and train all members of the duplication team and assign the
following roles:
o Ballot Caller – Announces the voter’s selections listed on the original ballot to the
Ballot Duplicator and Ballot Reviewer.
o Ballot Duplicator – Replicates the voter’s selections from the original ballot onto
the machine-readable ballot as instructed by the Ballot Caller.
o Ballot Reviewer – Reviews the Ballot Caller’s readings from the original ballot and
compare it to the selections recorded on the machine-readable ballot by the Ballot
Duplicator to ensure accuracy. It is a best practice to have two ballot reviewers,
one who will review the selection announced by the Ballot Caller and one who will
review the selection made by the Ballot Duplicator.
• Prior to the start of the ballot duplication process, each member of the bipartisan duplica-
tion team must complete a participation log noting the date, time, and their name, role, and
party affiliation.
• During the ballot duplication process, the duplication team is not permitted to leave each
other’s immediate presence until the process has been completed, unless authorized by the
director.
• All duplicated ballots must contain the following in the blank box at the top of each ballot:
o A notation (for example, “DUP”) to indicate the ballot is a duplicate of the original.
o The ballot number assigned to the voter.
o The precinct and VTD of the voter.
• Upon completion of the process, the team must do the following:
o Ensure that the duplicated ballots are attached to the corresponding original ballots
for the Board to verify at its next scheduled meeting.
o Enter the time of completion and their signatures to the ballot duplication log.
o Provide the completed duplication log and the ballots to the director.
• The director must ensure that the ballots are kept in a secured container until the next ab-
sentee board meeting.
• The board must review each duplicated ballot at its next scheduled board meeting prior to
approval of the ballots.
It is a best practice to have a duplication team present at every meeting to duplicate any damaged
ballots that are identified during the board meeting. Duplicating ballots at the board meeting when
the ballot envelope was approved reduces the likelihood of mistakes.
9
Control of Board Meeting
The county board of elections is responsible for maintaining control at its absentee board meetings.
The county board must ensure that the public receives proper notice of the board meeting and is
given the opportunity to attend. However, the county board should not permit public comment
while absentee envelopes are being adjudicated, or while ballots are being duplicated, sorted, or
tabulated. The board also should not permit questions from the public as the board approves ab-
sentee envelopes. Further, G.S. 163-234 is very clear that others shall be permitted to attend the
meeting during which absentee ballots are counted and observe the process, but may not interfere
with the election officials in the discharge of their duties.16
It is recommended that the board chair explain the process at the beginning of the board meeting
and state that public comment is not permitted during the approval and scanning of absentee bal-
lots. The board may, but is not required to, designate a separate part of the meeting for public
comment.
At the end of each board meeting, the goal is total reconciliation of all envelopes and ballots. To
do that requires careful control of every document in the room. It also requires ensuring that the
board members focus on the task at hand and that the public remains in an observer rather than a
participant role. Envelopes and ballots must not be allowed to be removed from assigned areas.
The reconciliation process shall ensure the number of ballot envelopes in each stack is tracked,
and that the number of envelopes approved at the meeting is equal the number of ballots entered
into the tabulator. The county board shall record the count on the tabulator at the start and end of
each absentee meeting. A sample reconciliation log that you may use for process is available here.
Public Records Requests for Envelopes
Some county boards may have received public records requests for absentee ballot return enve-
lopes. Ballot return envelopes are public records under North Carolina's Public Records Act, with
exceptions for voter signature and CIV number.17 Public records requests should not be fulfilled
during a board meeting, but must be fulfilled as promptly as possible.
16 163-234(2): “Any elector of the county shall be permitted to attend the meeting and allowed to
observe the counting process, provided the elector shall not in any manner interfere with the
election officials in the discharge of their duties.”
17 G.S. 132-1.2(4), 163-82.10(a), 163-165.1(e). See also Numbered Memo 2016-25.
10
Providing Copies of Envelopes
Prior to providing a copy of the envelope to the requestor, the voter signature and CIV number
must be redacted, as the number links the envelope to a particular voter's ballot. Witness or assis-
tant information may not be redacted.
To redact the voter signature and CIV number, you may copy the envelope, mark through the
confidential information on the copy, and then copy it again. Some counties have used a card-
board or other thick paper cutout to cover the confidential information when making a copy.
Digital copies may also be provided using a template redaction tool in Adobe.
Viewing Envelopes
Unredacted envelopes may be viewed by the public in your office, though no copy, photo, or trac-
ing may be made. A county board must ensure that the requestor is monitored while reviewing
the envelopes in the office to ensure the voter’s signature is not retained. Absentee ballot return
envelopes contain an identifier that is linked to the ballot, so this identifier must also be redacted
from public view to protect the secrecy of the ballot.