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Board Meeting Agenda Packet 11-16-2023 MEETING AGENDA Date: November 16, 2023 Time: 2:00 PM Location: Bd of Elections Office, Long Leaf Room Type: Special Scheduled Attendees: Derrick R. Miller, Chair Rae Hunter-Havens, Director James Battle Morgan, Jr. Secretary Caroline Dawkins, Deputy Director Natalie Hinton-Stalling, Member Noelle Powers, Database & Systems Specialist Bruce Kemp, Member Joan Geiszler-Ludlum, Administrative Technician Tom S. Morris, Member Jessica O’Neill, Program & Outreach Coordinator Visitor(s): Lisa Wurtzbacher, Assistant County Manager AGENDA ITEMS 1. Meeting Opening a. Call to Order b. Pledge of Allegiance c. Approval of Agenda d. Approval of Minutes (11/6/2023, 11/7/2023) 2. Public Comment Period • 2-minute limit • 10-minute limit total 3. New Business a. Sample Audit Count b. Review of Supplemental Ballot Applications c. Review of Provisonal Ballot Applications 4. General Discussion • Other Elections-Related Matters 5. Adjournment *Agenda packets are sent via email in advance of meetings. Special Meeting New Hanover County Board of Elections November 16, 2023 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Item # 1c Special Meeting New Hanover County Board of Elections November 16, 2023 Subject: Approval of Minutes Applicable Statutes and/or Rules N.C. Gen. Stat. §§ 163-31(e) and 143-318.10(e) Summary: This includes minutes from the 11/6/2023 and 11/7/2023 meetings. Board Action Required: Staff recommends approval Item # 1dItem # 1d Board Minutes – 11/06/2023 Page | 1 SPECIAL MEETING New Hanover County Board of Elections November 6, 2023 5:00 P.M. ATTENDANCE Members: Derrick R. Miller, Chair James Battle Morgan, Jr., Secretary Natalie Hinton-Stalling, Member Bruce Kemp, Member Tom Morris, Member Staff: Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Jenna Dahlgren, Elections Logistics Specialist Jessica O’Neill, Elections Program and Outreach Coordinator Noelle Powers, Elections Systems Administrator Beth Pugh, Elections Specialist Joan Geiszler-Ludlum, Administrative Elections Technician Bipartisan Duplication Team: Emily Fountain, Pam Greene, Bea Powell Visitors: Tufanna Bradley, Assistant County Manager; Kemp Burpeau, Deputy County Attorney Public Attendees: Jana Albritton, League of Women Voters LCF; Matthew Emborsky, Julius Rothlein, NHC GOP; Wendy Hunt, NHCDP Virtual Attendees: Jenna Dahlgren; Denise Brown; Jessica O’Neill 1. MEETING OPENING a. Call to Order Chair Miller called the meeting to order at 5:01 p.m. The New Hanover County Board of Elections meeting was held in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. All members were present. b. Preliminary Announcements Chair Miller reminded the audience to silence their cell phones, that the meeting is being recorded and live streamed over the internet, and to refrain from speaking until called on. Board Minutes – 11/06/2023 Page | 2 c. Pledge of Allegiance Chair Miller called on the audience to rise and recite the Pledge of Allegiance. d. Approval of Agenda Member Kemp moved to approve the agenda as submitted, second by Member Morris. Motion carried unanimously. e. Approval of Minutes Member Hinton-Stalling moved to approve the minutes of the 10/31/23 Board meeting as submitted, second by Member Morris. Secretary Morgan noted one correction on page 2, second paragraph from the bottom, where Member Morris seconded Secretary Morgan’s motion. Hearing no further corrections or changes, Chair Miller called the vote. Motion carried unanimously. 2. PUBLIC COMMENT PERIOD Chair Miller called upon the public in-person attendees for their comments or questions, limited to two minutes each with a total maximum time of ten minutes. Chair Miller acknowledged receiving two emails from the NHC GOP. One was a public records request for a copy of the official register of absentee ballot requests; the second asked if New Hanover County Board of Elections (NHCBOE) is a member of the US Alliance for Election Excellence. Director Hunter-Havens said the official register of absentee ballot requests will be posted on, and can be downloaded and printed from, the State Board of Elections (SBE) website on Election Day. The Director said that NHCBOE is not a member of the US Alliance for Election Excellence. Seeing and hearing no other public attendees wishing to comment, Chair Miller closed the Public Comment period. 3. NEW BUSINESS a. Review of Absentee Ballots • Multiparty Assistance Team (MAT) Board Minutes – 11/06/2023 Page | 3 A MAT1 team visited an assisted living facility on October 30 to assist voters with completion of their absentee-by-mail ballots. When the ballots were received in the mail on November 3, they were deficient. Despite careful training for MAT teams, two ballots were returned with witness errors and two were returned with photo ID request form errors. The 2 ballots with witness errors, which are not curable, were reissued by overnight mail first thing on Saturday, November 4, for delivery on Monday. The 2 ballots with photo ID request form errors, which are curable, were sent cure letters. Elections Logistics Specialist Jenna Dahlgren scheduled a different MAT team to assist those voters in completing their absentee ballots on Monday. The MAT teams are permitted to bring the completed absentee-by-mail ballots and cures back to the Board of Elections office as assistants due to the voters’ disability. The 2 voters who received the reissued absentee ballot packets completed their absentee- by-mail ballots successfully, but the voters mistakenly signed each other’s ballot envelopes instead of their own. In addition, one neglected to include their photo ID documentation. The Director recommended treating them as curable deficiencies as the voter signed, just not in the correct place, which is permissible, and sending them with a MAT team to the facility on Election Day. Since it is an unusual and odd occurrence, she said that she wanted to bring the circumstances to the Board’s attention. Each is pending cure and will be brought before the Board for acceptance as required. • In Person One Stop Absentee Applications Chair Miller said there are 4,594 One Stop ballots cast from 10/31/23 through 11/4/23 and distributed the Executed Absentee Ballots List for Board review. Board review began at 5:12 p.m. and finished at 5:17 p.m. Chair Miller asked Director Hunter-Havens whether the duplicate entry on the 10/31/23 Executed Absentee Ballots List was resolved. The Director said there was a voter who completed a Photo ID Exception Form listing two impediments, which caused a duplicate entry in SEIMS. SBE has provided directions on how to avoid duplicate listings in such cases, by entering one reason and listing any additional reasons in the comments. Member Kemp moved to approve 4,594 One Stop ballot Applications as presented, second by Member Morris. Motion carried unanimously. The Board signed the Absentee Meeting Ballot Certification One Stop after reviewing the Executed One Stop Absentee Register. • Absentee-by-Mail Applications 1 Multiparty Assistance Teams are bipartisan officials appointed by the county Board of Elections to assist voters living in assisted living, nursing homes, hospitals or clinics with elections-related matters such as voter registration and requesting and completing absentee ballots. Board Minutes – 11/06/2023 Page | 4 Director Hunter-Havens presented 72 absentee-by-mail Applications for Board review and approval: • 53 meet all requirements and Board approval is recommended; • 5 require Board review of Photo ID Exception Forms; • 5 UOCAVA2 Applications; • 9 require Board review and action, including 1 with a cure certification pending Board review. Chair Miller suggested addressing the 9 Applications requiring Board review and action. Director Hunter-Havens presented: • 4 Applications returned with the ballot envelope unsealed and placed in a sealed outer return envelope. Staff immediately sealed the ballot envelope without reviewing the Application according to SBE guidance, pending Board action. • 2 Applications returned in a sealed outer return envelope, but the ballot envelopes were unsealed, and the ballot was also loose in the return envelope. • 2 voters residing in the same household returned their ballots in the return envelope of the other resident. Member Kemp moved to authorize staff to open and review 8 Applications, second by Member Morris. Motion carried unanimously. Chair Miller asked Director Hunter-Havens to present the ballot with a cure certificate. The Director said the voter returned their absentee ballot without a photo ID or an Exception Form. The voter returned an acceptable cure certification with a copy of their photo ID. Director Hunter-Havens recommends approval of the Application because a proper cure certificate was completed and returned. Member Morris moved to approve the Application with a satisfactory cure certification, second by Member Hinton-Stalling. Motion carried unanimously. Director Hunter-Havens presented 2 absentee-by-mail ballots which a CFCC security guard delivered to the CFCC curbside coordinator in person for himself and his wife. When he delivered the ballots, he declined to complete the In Person Return Logs due to lack of time but returned later to complete them partially. Incomplete or incorrect Return Logs do not invalidate the ballot itself. All other requirements for these 2 absentee ballots are met. These 2 ballots are included in the 5 recommended for approval with all requirements met, but the Director wanted to make the Board aware of the unusual occurrence. Director Hunter-Havens presented 5 UOCAVA ballots, all returned electronically and 2 Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA) is a federal law that requires states to allow voters who are absent from their country of residence to vote using an expedited process to register and vote by mail-in absentee ballot. The law covers active-duty members of the armed forces, Merchant Marine, the commissioned corps of the Public Health Service and NOAA, National Guard or state militia, their spouses and dependents, and US citizens residing outside the United States. Board Minutes – 11/06/2023 Page | 5 duplicated before the meeting. The Board began review of 53 UOCAVA ballots at 5:28 p.m. and completed review at 5:37 p.m. Secretary Morgan moved to approve 5 UOCAVA ballots, second by Member Morris. Motion carried unanimously. Chair Miller said there are 72 total absentee-by-mail ballots with 66 still awaiting approval. He recommended spot checking 10%, or a minimum of 8 in 2 teams reviewing at least 4 each. Hearing no objection, Secretary Morgan and Member Morris selected precinct H04 (4); Members Hinton-Stalling and Kemp selected precinct W25 (4). Board review began at 5:40 p.m. and concluded at 5:45 p.m. Secretary Morgan moved to approve 66 absentee-by-mail ballot Applications, second by Member Morris. Chair Miller, Secretary Morgan, Members Hinton-Stalling and Morris voted aye; Member Kemp abstained. Motion carried by majority vote. b. Oath Certificates for Absentee Ballots The Board of Elections is required to complete oaths attached to an executed list of approved absentee applications and ballots received by 5:00 p.m. on the day preceding Election Day. Separate oaths are required for military/overseas and civilian applications and ballots received. The Sheriff’s deputies will deliver the Oaths and an Executed list of Absentee Voters to each precinct by 10:00 a.m. on Election Day. The Board authorized the staff to begin scanning the approved absentee ballots. Scanning began at 5:52 p.m. and concluded at 6:21 p.m. Chair Miller reconvened the meeting. Director Hunter-Havens reported that the Executed Ballots report matches the number of ballots approved by the Board and is reconciled. Member Morris asked about any write-ins. Director Hunter-Havens said there were 5 or 6 in this batch which will be reviewed and tallied. 4. GENERAL DISCUSSION Chair Miller called for any discussion from the Board members. Chair Miller began with the administrative appointments of chief judge and judge substitutions to assure the required Election Day staffing. These appointments are necessary because the Board-appointed officials are not available to work in this election. Director Hunter-Havens distributed the list of 21 administrative appointments. She said staff sought substitutes of the same party affiliation as the official unable to serve whenever possible while also meeting the residency requirement. Member Kemp asked why these appointments are not made under the vacancy provision instead of as an administrative substitute. Director Hunter-Havens said these are not Vacancies, as the appointed official has agreed to serve but is not available to serve in Board Minutes – 11/06/2023 Page | 6 election. Director Hunter-Havens presented 4 precincts, H12, W08, W34, and WB, where the staff have been unable to meet the statutory requirement that there cannot be more nonresident transfer officials that resident officials. NCGS §163-42(b) allows the Board, by unanimous vote, to appoint precinct assistants who are not residents of the precinct, provided transfer officials are not appointed to the majority of assistant positions and are not all of the same party affiliation. The Director said staff considered all recommendations received from the party chairs and the official’s database, making their best efforts to maintain party affiliation balance. Member Morris said that few of the officials on the list are registered Republicans and 95% are Democrats or unaffiliated. Director Hunter-Havens said all precinct officials received multiple emails regarding their availability to serve. In the recruitment process all officials are reminded that email is the primary means of communication. If officials do not respond to those emails or are not available to work, they cannot be assigned. No one can be forced to work. Member Morris said the party has work to do in recruiting election officials. Secretary Morgan moved to approve the administrative appointments in precincts H12, W08, W34 and WB, second by Member Hinton-Stallings. Chair Miller, Secretary Morgan, Members Hinton-Stalling and Morris voted aye; Member Kemp abstained, saying he believed a unanimous vote was not required. After he reviewed the statute, he changed his vote to aye. Motion carried unanimously. Chair Miller said Member Kemp requested an additional report for Election Day, showing absentee ballot results by meeting date. Director Hunter-Havens has sought guidance from the SBE who advised that the requested report is permissible, provided it is not burdensome on the staff, and has provided a new module to create such a report. The Director has said she has the capacity to produce the report. Chair Miller said that Board members are not authorized to act individually; the staff acts only at Board direction. Chair Miller said the Board needs to affirm the creation of the additional report. Hearing no objection, the requested report is approved. Chair Miller reminded the Board and the audience that the next meeting is Tuesday, November 7, at 2:00 p.m. All Board members must be present. Secretary Morgan and Member Kemp will observe the upload of the absentee-by-mail and One Stop results tabulated in the afternoon session. Members Morris and Hinton-Stalling will observe the Election Day precinct results upload. Beginning after 7:30 p.m., staff will begin to load and report the precinct results as those become available under the observation of 1 Board member of each party, on monitors set up outside the secure office where the ElectionWare equipment is housed. Member Morris returned to his earlier concern that there are fewer Republican officials. By his count, 15% are Republicans, 35% Unaffiliated, and 50% Democrats. He stands corrected. Director Hunter-Havens said staff welcomes the recommendations from the party chairs. Deputy Director Dawkins added that 3 officials dropped out today, and 2 Board Minutes – 11/06/2023 Page | 7 are Republicans. We did our best to identify resident Republicans to replace them, but none are available. Director Hunter-Havens said precinct residents are essential so that the allowable number of transfers is not exceeded. Member Kemp asked how many absentee ballots have been requested and sent. Director Hunter-Havens said she could provide that data at the next meeting. Member Kemp asked how many container-return envelopes were spoiled. Director Hunter-Havens said she does not have a count, but the staff continues to spoil and reissue absentee ballots until it is too late for the voter to receive and return the ballot timely. 5. ADJOURNMENT Member Morris moved to adjourn the meeting at 6:53 p.m., second by Secretary Morgan. Motion carried unanimously. The next Board meeting is scheduled to be held on November 7, 2023, at 2:00 p.m., at the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. APPROVED BY: RESPECTFULLY SUBMITTED: _______________________________ ______________________________ JAMES BATTLE MORGAN, JR. RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Board Minutes – 11/07/2023 Page | 1 SPECIAL MEETING New Hanover County Board of Elections November 7, 2023 2:00 P.M. ATTENDANCE Members: Derrick R. Miller, Chair James Battle Morgan, Jr., Secretary Natalie Hinton-Stalling, Member Bruce Kemp, Member Tom Morris, Member Staff: Rae Hunter-Havens, Executive Director Caroline Dawkins, Deputy Director Jenna Dahlgren, Elections Logistics Specialist Jessica O’Neill, Elections Program and Outreach Coordinator Noelle Powers, Elections Systems Administrator Joan Geiszler-Ludlum, Administrative Elections Technician Jennifer Sparks, Printelect Visitors: Tufanna Bradley, Assistant County Manager; Kemp Burpeau, Deputy County Attorney Public Attendees: Matthew Emborsky, NHC GOP; Elli Klein, NHCDP; Sheila Fellerath, League of Women Voters LCF Virtual Attendees: Mike Lindell; Denise Brown 1. MEETING OPENING a. Call to Order Chair Miller called the meeting to order at 2:00 p.m. The New Hanover County Board of Elections meeting was held in the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. All members were present. b. Preliminary Announcements Chair Miller reminded the audience to silence their cell phones, that the meeting is being recorded and live streamed over the internet, and to refrain from speaking except when called upon. Board Minutes – 11/07/2023 Page | 2 c. Pledge of Allegiance Chair Miller called on the audience to rise and recite the Pledge of Allegiance. d. Approval of Agenda Member Kemp moved to approve the agenda as submitted, second by Member Morris. Hearing no discussion, Chair Miller called the vote. Motion carried unanimously. 2. PUBLIC COMMENT PERIOD Chair Miller called upon the public in-person attendees for their comments or questions, limited to two minutes each with a total maximum time of ten minutes. Matthew Emborsky asked for an update of the number of absentee ballots sent and how many remain outstanding. He questioned the accuracy of the NC State Board of Elections (SBE) tracker which was last updated at 5:30 a.m. on Election Day. He said SBE shows New Hanover County received 165 absentee ballots which is slightly off the Board’s numbers. Director Hunter-Havens said the absentee registry is now public on the SBE website. The numbers may vary depending on the report being reviewed. Seeing and hearing no other public attendees wishing to comment, Chair Miller closed the Public Comment period. 3. NEW BUSINESS • Counting of Absentee Ballots Chair Miller called on Director Hunter-Havens to review the process for the counting of the previously approved absentee ballots. Director Hunter-Havens said the New Hanover County Board of Elections determined by resolution to count the approved absentee ballots at 2:00 p.m. on Election Day. One Stop absentee ballots received by 3:00 p.m. on November 4 and absentee-by-mail ballots received by 5:00 p.m. on November 6 and approved by the Board will be counted. Staff will count the absentee-by-mail ballots that were optically scanned during the special absentee meetings will be counted using the DS850 central tabulator. The results are saved on USB drives and the staff will upload the tabulated data to the disconnected ElectionWare reporting software. Staff will also close the DS200 voting machines used at the Absentee One Stop sites and print the 4 results tapes for Board review. Staff will then take the USB drives holding the One Stop results and upload the tabulated data to the ElectionWare reporting software. Before 7:30 p.m., staff will verify all results from the ElectionWare software imported into the SEIMS Election Reporting Software (ERS). SBE will release the results on the Board Minutes – 11/07/2023 Page | 3 SBE website, making them available for public view, at the closing of the polls at 7:30 p.m. At the conclusion of tabulation, two reports will be printed. One is the report Member Kemp requested which breaks down the absentee results by meeting date at which they were reviewed and approved. Then staff will adjust the reporting groups to compile the results into one report which will then become the Absentee Abstract which the Board will review and sign. The numbers reported remain confidential and cannot be released to or shared with any member of the public until the polls close at 7:30 p.m. There are no reported delays extending polling hours so far. Member Kemp said he wanted to be clear that there aren’t two different processes. Director Hunter-Havens said one is done on the DS850 and then is saved on the USBs which are loaded to the ElectionWare machine. Member Morris asked if the ElectionWare machine is an ES&S laptop. Director Hunter- Havens said it is ElectionWare, a disconnected tabulation software program. Member Morris asked if it is stand-alone and not connected to a server. Director Hunter-Havens confirmed that is correct. Member Morris then asked whether the ElectionWare software is proprietary software. Director Hunter-Havens confirmed it is proprietary software. Jennifer Sparks, a consultant from Printelect, confirmed the software is proprietary software certified by the US Elections Assistance Commission (EAC) and by the NCSBE. It comes on a workstation, meaning it is hardened. Certain things like the network port and the basic input/output system (BIOS) are disabled. Member Morris asked if a modem is present and connected. Ms. Sparks said there is no modem, which makes it a hardened system. Member Morris thanked Director Hunter-Havens and Ms. Sparks for answering his questions. Member Kemp asked whether the ElectionWare workstation undergoes Logic & Accuracy testing in preparation for the election. Ms. Sparks said absolutely, every machine that supports an election is subject to L&A testing, including the ElectionWare machine. Every county does a mock election as part of that testing protocol including uploading the results to the State website. Director Hunter-Havens confirmed that the staff completed every one of those steps of the mock election at the culmination of the L&A testing. Member Morris asked if the ElectionWare machine is then zeroed out after testing and certified. Director Hunter-Havens confirmed it is. Chair Miller said, if there are no objections, we will consider there is unanimous consent for staff to proceed with closing the DS200s. Closing of the DS200s began at 2:13 p.m. and finished at 2:28 p.m. Director Hunter-Havens informed the Board that 4 provisional ballots were inserted into the DS200 during One Stop Early Voting, 3 at the Senior Resource Center and 1 at Cape Fear Community College. In each instance it was due to poll worker error. At the Senior Board Minutes – 11/07/2023 Page | 4 Resource Center, the curbside coordinator was assisting 5 voters from an assisted living facility van which added additional complexity and caused a misunderstanding whether the ballots were provisional or curbside. Director Hunter-Havens recommended that the Board authorize staff to manually deduct the provisional ballots from the One Stop totals and present the provisional ballots with their application for the Board’s review at the November 16 Pre-canvass meeting. Chair Miller said, if there are no objections, the staff is authorized to make the 4 manual edits as the Director recommended. In response to a question from Member Kemp, Director Hunter-Havens confirmed that all 4 ballots were properly marked as provisional ballots and were retrieved from the DS200s and secured. Chair Miller said that Member Kemp has drawn his attention to NCGS §163-234(4) regarding the counting of absentee ballots: (4) The counting of absentee ballots shall not commence until a majority and at least one board member of each political party represented on the board is present and that fact is publicly declared and entered in the official minutes of the county board. Chair Miller said he can publicly declare for the minutes that all Board members are present, and at least one Board member of each political party is present. The Board members began their review of the DS200 results tapes at 2:21 p.m. and signed 1 of the 3 printed tapes. During the review, Member Morris asked if the USB for each DS200 is shown on the results tape. Ms. Sparks said it is, along with the serial number of each DS200. Chair Miller asked about voter turnout during the One Stop period. Director Hunter- Havens said the numbers are down about 1,500 compared to the previous municipal election. Election Day counts showed 2,622 voters had cast ballots as of 10:00 a.m. but she has not compared the turnout numbers to the previous municipal election. The Board completed their review of the One Stop results tapes at 2:33 p.m. Chair Miller reminded the Board that the results are confidential and what we have seen cannot be shared with anyone until the polls close at 7:30 p.m., and includes the numbers reviewed on the results by meeting report. Chair Miller called for the meeting to be at ease while the data is uploaded, with Board Member Kemp and Secretary Morgan observing. Data upload began at 2:36 p.m. and finished at 2:59 p.m. The Board members reviewed the Absentee Abstract, reflecting all absentee-by-mail ballots received and approved through November 6, and signed the Abstract. Director Board Minutes – 11/07/2023 Page | 5 Hunter-Havens reminded the Board that they will review supplemental absentee-by-mail ballots received between November 6 and 13. 4. GENERAL DISCUSSION Chair Miller called on the Board members for any general discussion of election-related Matters. Hearing none, Chair Miller closed the General Discussion session. 5. ADJOURNMENT Member Morris moved to adjourn the meeting at 3:23 p.m., second by Member Kemp. Motion carried unanimously. The next Board meeting is scheduled to be held on November 14, 2023, at 5:15 p.m., at the Board of Elections office, Long Leaf Room, 1241A Military Cutoff Road, Wilmington, NC. APPROVED BY: RESPECTFULLY SUBMITTED: _______________________________ ______________________________ JAMES BATTLE MORGAN, JR. RAE HUNTER-HAVENS SECRETARY ELECTIONS DIRECTOR Special Meeting New Hanover County Board of Elections November 16, 2023 Subject: Public Comment Period Summary: This is an opportunity for members of the public to provide comments on elections-related matters. Each commenter will be limited to two minutes. There is a limit of 10 minutes total for the public comment period. Board Action Required: Discuss as necessary Item # 2 Special Meeting New Hanover County Board of Elections November 16, 2023 Subject: Sample Audit Count (W26 and W35) Applicable Statutes and/or Rules N.C. Gen. Stat §§ 163-182.2(a)(2), 163-182.1(b)(1), 163-182.2(b)(2), and 163-182.1, NCSBOE Numbered Memo 2019-07 Summary: All county boards of elections in North Carolina must complete a sample audit count after Election Day and prior to canvass as part of the post-Election Day auditing process that helps ensure the reliability of elections results tabulated by the voting equipment. The purpose of this audit count is to compare the machine counts with hand-to-eye counts to ensure that the voting equipment read the voter’s choices accurately. In accordance with NC Gen. Stat. § 163-182.2, the NC State Board of Elections randomly chooses a sample of ballots from different voting sites and/or methods. All sites and voting methods are included for possible selection in the random selection process. Per statute, the ballot item selected for the sample audit shall be a statewide ballot item. The random selection process conducted by the NC State Board Elections on Wednesday, November 8, 2023, determined that New Hanover County will conduct a full count of the following precincts and contest: • W26 – Sunset Park Elementary School– Full count of Election Day ballots for City of Wilmington Mayor • W35 – Wesley Memorial UMC Activity Building – Full count of Election Day ballots for City of Wilmington Mayor During a sample audit count, a bipartisan team of election officials will hand count the ballots in a specific precinct or from a specific voting method. The hand-counted results are compared to the tabulated machine results and any variances are reported to the State Board. Document/s Included: NCSBOE Numbered Memo 2019-07, Rules for Conducting the Sample Audit Count (Provided at Board Meeting) Board Action Required: Discuss as necessary Item # 3a Mailing Address: P.O. Box 27255, Ra-leigh, NC 27611 (919) 814-0700 or(866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2019-07 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Guidance Regarding What Constitutes a Vote DATE: November 1, 2019 Pursuant to Section 301 (a)(6) of the Help America Vote Act of 2002, codified as 42 U.S.C. § 15481(a)(6), and N.C.G.S. § 163-182.1(b), this guidance is being provided to county boards of elections to ensure uniformity in the tabulation of election results and the conduct of hand-to-eye counts, hand-to-eye recounts, and other audits. It updates and supersedes prior guidance on this subject from 2006. This memo also provides guidance on when a vote should be counted in cir-cumstances in which a voting system is unable to determine the voter’s intent with respect to a marked ballot. State law sets out clear standards for what constitutes a vote. The purpose of this memo is to explain those standards and provide examples of their application to particular circumstances. Voting Systems The State Board of Elections may certify voting systems only if they meet statutory requirements, including generating either a paper ballot or a paper record by which voters may verify their votes before casting them and which provides a backup means of counting the vote that the voter casts. Voting systems are required to generate a paper record of each individual vote cast. The paper ballot must be maintained in a secure fashion and serves as the backup record for purposes of any hand-to-eye count, hand-to-eye recount, or other audit. Electronic systems that employ optical scan technology to count paper ballots are deemed to satisfy the requirement.1 1 G.S. § 163-165.7(a): … The State Board may certify voting systems only if they meet the re- quirements set forth in this section and only if they generate a paper ballot which provides a backup means of counting the vote that the voter casts. Those voting systems may include optical scan and direct record electronic (DRE) voting systems that produce a paper ballot. Among other re- quirements as set by the State Board of Elections, the certification requirements shall require at least all of the following elements: … (4)With respect to electronic voting systems, that the voting system generate a paper ballot of each individual vote cast, which paper ballot shall be maintainedin a secure fashion and shall serve as a backup record for purposes of any hand- 2 Regardless of whether the ballot is a standard paper ballot in which all candidates for a ballot item are printed on the ballot, or whether the ballot is a printout of only the selections the voter made, the voter must have the opportunity to verify his or her intent by confirming that the choices the voter selected are correctly marked on the ballot. The voter is not verifying that the barcodes or coordinates printed on the ballot for tabulation purposes are the voter’s choices; rather, the voter is verifying that the ovals or rectangles are accurately filled in on standard paper ballots or, in the case of a barcode ballot, the voter is verifying that the names printed on the ballot accurately reflect the voter’s selections. Any hand-to-eye count or other circumstance where a person is hand count-ing a ballot would use the selection that was verified by the voter, not the coordinates or barcodes. Ballot marking instructions are provided for each ballot. G.S. § 163-165.5(a)(6). Hand-marked ballots should be marked according to the instructions provided for the ballot using a pen or mark- ing device provided at the polling place to fill in the oval or rectangle next to the candidate for whom the voter wishes to vote. When a voter’s choice cannot be tabulated by the voting equip-ment, the principles and rules for counting official ballots as contained in G.S. §§ 163-182.1 and 182.2 and 08 NCAC 6B. 0105 shall apply. Ballot marking device (BMD) voting systems do not allow irregularly marked ballots. The voter should follow instructions on the voting equipment to ensure the vote is cast and that the voter has received confirmation thereof. Voter Intent Voter intent is the governing standard in the event questions arise about how to adjudicate the contents of a ballot. Questions about voter intent can arise when a voter hand marks a ballot and the voting system is unable to determine which choices the voter has made. This could occur if a voter uses an improper marking instrument, marks the ballot in an inappropriate manner, places marks in the wrong location on the ballot, or otherwise acts in a manner that causes the voter’s ballot to be unreadable by the voting system for which the ballot was designed. Questions about voter intent can also arise during a hand-to-eye count. Official ballots shall be counted according to the principles and rules contained in G.S. § 163-182.1(a): “(1) Only official ballots shall be counted; (2)No official ballot shall be rejected because of technical errors in marking it, unless it is impossible to clearly determine the voter's choice; (3)If it is impossible to clearly determine a voter's choice in a ballot item, the offi-cial ballot shall not be counted for that ballot item, but shall be counted in allother ballot items in which the voter's choice can be clearly determined; (4)If an official ballot is marked in a ballot item with more choices than there are offices to be filled or propositions that may prevail, the official ballot shall not be counted for that ballot item, but shall be counted in all other ballot items in to-eye count, hand-to-eye recount, or other audit. Electronic systems that em- ploy optical scan technology to count paper ballots shall be deemed to satisfy this requirement. 3 which there is no overvote and the voter's choice can be clearly determined; (5)If an official ballot is rejected by a scanner or other counting machine, but hu- man counters can clearly determine the voter's choice, the official ballot shallbe counted by hand and eye; and (6)Write-in votes shall not be counted in party primaries or in referenda, but shallbe counted in general elections if all of the following are true: a.The write-in vote is written by the voter or by a person authorized to assist the voter pursuant to G.S. 163-166.8; b.The write-in vote is not cast for a candidate who has failed to qualifyunder G.S. 163-123 as a write-in candidate; and c. The voter's choice can be clearly determined.” Examples The following non-exhaustive guidance provides examples of how to apply the standards in G.S. § 163-182.1(a) to real-world scenarios: •For the purpose of conducting sample hand-to-eye audits under G.S. § 163-182.1(b)(1), hand-to-eye recounts under §§ G.S. 163-182.7 and G.S. 163-182.7A, and hand-to-eye counts for any other reason, the printed names must always be used in counting the votes, rather than coordinates or barcodes. This is because the printed name is what the voter used to verify his or her intent. •If a write-in candidate’s name is misspelled or incomplete, a vote for the candidate should be counted if the board of elections can determine which candidate the voter intended to vote for. Pursuant to G.S. § 163-182.1(a)(3), a ballot should not be rejected due to technical errors unless it is impossible to determine a voter’s intent. •If a voter votes for a candidate by filling in the oval or rectangle or selecting the name on a BMD and also writes in a candidate’s name, the vote shall be counted one time for that candidate. G.S. § 163-182.1(4) does not apply in this circumstance because it is possible to determine what the voter intended. Similarly, if a voter writes in the same name more than once in a multi-seat contest, a vote shall be counted one time for that candidate. In all such instances where the voter attempts to use write-ins to vote for the same individual more than once, no more than one vote shall be counted for the candidate and the rest shall simply be reported as miscellaneous. •If the voter writes in a name but does not fill in the accompanying oval or rectangle, in a hand-to-eye count the vote shall be counted for that candidate if it can be determined who the voter intended to vote for. •If a voter votes for more than one candidate in a vote-for-one contest, the votes in that contest shall not be counted. This includes if one of the votes is a write-in and the accompanied oval or rectangle is not filled in. However, if a voter crosses out the 4 candidate for whom they overvoted, such that the county board of elections can determine the voter’s intent, then that vote shall be counted. Sample Audit Count County boards should immediately report any unexplained discrepancies discovered during a sam-ple audit count or any other hand-to-eye count to the State Board. In the event of a material dis-crepancy between the electronic or mechanical count and a hand-to-eye count, the hand-to-eye count shall control, and the canvass documents should reflect this, except where paper ballots or records have been lost or destroyed or where there is another reasonable basis to conclude that the hand-to-eye count is not the true count. G.S. § 163-182.2(b)(2). In a sample audit count, if the discrepancy between the hand-to-eye count and the mechanical or electronic count is significant, a complete hand-to-eye count shall be conducted. The sample count need not be done on election night. G.S. § 163-182.2(b)(2). “Significant” has been interpreted to mean a difference that cannot be explained. It may be appropriate to conduct a second hand-to-eye count of the same ballots if the county board has an indication that human error may account for the difference between the electronic or mechanical count and the first hand-to-eye count. Special Meeting New Hanover County Board of Elections November 6, 2023 Subject: Review of Absentee Ballot Applications Applicable Statutes and/or Rules N.C. Gen. Stat §§ 163-229(b) and 163-230.1(f), 163-231(b)(2), 163-234(11), and 103-5, NCSBOE Numbered Memos 2022-15, 2022-11, 2021-07, 2021-03, 2020-29, 2020-25, 2020-23, and 2023-03 Summary: The statutory deadline for the return of civilian ballots postmarked on or before Election Day is three days after the election by 5:00 pm, which usually falls on the Friday following the election (NC Gen. Stat. § 163-231(b)(2)). For the 2023 Municipal Elections, that deadline falls on Veterans Day, a state and federal holiday. In accordance with NC Gen. Stat. § 103-5, civilian ballots that arrive at a county board of elections office by 5:00 pm on Monday, November 13, 2023, are deemed timely if they are postmarked on or before Election Day. Military and overseas absentee ballot applications, issued under Article 21A, submitted by mail should not be accepted unless they are received by the county board of elections not later than the end of business on the business day before canvass. 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 2023 Municipal Elections must include the following: 1. The voter’s certification of eligibility to vote the enclosed ballot. 2. A copy of an acceptable form of Photo ID or completed Photo ID Exception Form. 3. The certification of two witnesses, to include their residence address, or one public notary. 4. The certification, to include residence address, of any individual that assisted a voter in accordance with N.C. Gen. Stat. §163-226.3. 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 Director and staff are responsible for completing many of the administrative duties associated with absentee by mail voting. In addition, the county board may authorize staff by an approved motion documented in the minutes or by resolution to 1) use a bipartisan team(s) of staff members to duplicate UOCAVA ballots that cannot be read by the tabulator outside of an absentee meeting, provided that all requirements outlined in Numbered Memo 2020-25 are followed and 2) open approved applications and scan ballots in them during the absentee meeting when they are approved. The board authorized staff to complete the following preparatory steps via resolution approved by the board at the October 10, 2023, meeting: 1. Prior to each Absentee Review Meeting, a bipartisan team shall duplicate all UOCAVA ballots received by the Board 2. Prior to each weekly Special Meeting held pursuant to N.C. Gen. Stat. § 163-230(e)-(f). and prior to any meeting held pursuant to N.C. Gen. Stat. § 163-234 at which absentee ballot Item # 3b applications/container-return envelopes are to be passed upon. the Director or staff shall inspect each absentee ballot application/container-return envelope to evaluate whether it: a. Complies with all the requirements such that it should be recommended for approval, b. Is defective but can be cured, c. Is defective but cannot be cured, or d. has a status that needs to be evaluated by the Board. 3. At each Absentee Review Meeting and any meeting under N.C. Gen. Stat.§ 163-234, once the Board has approved absentee ballot applications/container-return envelopes, the Director and staff shall “remove th[e] ballots from th[ose] envelopes and have them read by an optical scanning machine, without printing the totals on the scanner." The review of certain types of absentee ballot applications cannot be delegated to staff members. Specifically, county boards are required to individually review all applications that (1) have been recommended for disapproval by staff, (2) have a cure certification associated with the ballot application, (3) have a Photo ID Exception Form where staff has indicated that available information may lead the board to conclude that the Form is false, or (4) where staff need further guidance from the board as to whether the application was properly executed. During the absentee meetings, the board by majority vote may accept staff’s recommendations for approval without reviewing all absentee applications that do not specifically require board review (Numbered Memo 2020-25). However, this delegation must include a process for the board to spot- check the ballot envelopes to ensure accuracy and consistency. In addition, county boards are authorized to use two bipartisan teams of board members to conduct this review at each meeting as opposed to all five board members reviewing each ballot envelope. Revised Numbered Memo 2021-03, updated on September 25, 2023, addresses deficiencies in the envelopes and/or photo ID documentation should be managed by staff. There are three types of deficiencies that can be addressed by elections staff: 1) return deficiencies, 2) ballot application deficiencies, and 3) photo ID documentation deficiencies. 1) Return Deficiencies – These deficiencies are associated with the actual envelopes, not the ballot application. The ballot envelope is returned to the county board of elections office in an outer return envelope to ensure the privacy of the accompanying photo ID documentation. There are situations when a deficiency in the return or ballot envelope require that the ballot be spoiled and reissued to the voter. These deficiencies include the following: • The ballot envelope is unsealed or appears to have been opened and resealed and the return envelope is not sealed or appears to have been opened and resealed. • Someone other than the voter returns a ballot envelope that is not sealed and the return envelope is also unsealed or there is no return envelope. Even if the person is authorized to return the ballot, they cannot seal the ballot envelope without the voter being present. The voter must direct that the ballot envelope be sealed in their presence. • The return or ballot envelope indicates the voter is requesting a replacement ballot. Other anomalies that do not require that the ballot be spoiled and reissued are based on situations where the ballot is received in a sealed envelope but there was an anomaly with one or both envelopes. These anomalies include the following: • Ballot envelope is unsealed or appears to have been opened and resealed but is received in a sealed return envelope. In this case, staff will make the following notation on the return envelope “sealed in return envelope” so that county board can open the return envelope and review that ballot at its next absentee board meeting. • Ballot is placed inside the clear sleeve on the outside of the ballot envelope used for photo ID documentation but the return envelope is sealed. Staff will make the following notation on the return envelope “sealed in return envelope” so that county board can open the return envelope and review that ballot at its next absentee board meeting. • Return envelope is not sealed or appears to have been opened and resealed but the ballot appears to be sealed in the ballot envelope. No special action is required before reviewing the ballot application. • A voter returns their ballot in person in an unsealed ballot envelope to our office or a one-stop site. In this case, staff will instruct the voter to seal the ballot envelope. No special action is required before reviewing the ballot application. The purpose of the return envelope is to protect the voter’s confidential information during mail transit. If a person hand delivers a sealed ballot envelope without a return envelope, staff will place the ballot envelope in a new return envelope for storage purposes. 2) Ballot Application Deficiencies - Some ballot application deficiencies can be cured with a certification by the voter while other deficiencies require that the ballot be spoiled. Deficiencies that can be cured with a 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 a voter’s witness is a notary, two errors in the notarial certification require that the ballot be spoiled and reissued: the notary signature is missing, or the notarial seal is missing altogether or contains missing information. 3) Photo ID Documentation Deficiencies – Deficiencies with the photo ID documentation fall into two main categories: Photocopy of Photo ID deficiencies and Photo ID Exception Form deficiencies. Both types of deficiencies are curable since the cure documentation comes from the voter. In addition, the failure to include any photo ID documentation is a deficiency that can be cured by the voter. Photocopy of Photo ID Deficiencies: • The ID type is not acceptable for voting purposes • The ID does not meet the expiration requirements, if applicable • The photocopy is not readable, which means that the name on ID cannot be read and/or photograph does not depict a person but only a shadow or outline of a person. • Name on the ID is not the same or substantially equivalent to the voter’s name in their voter record Photo ID Exception Form Deficiencies: • Voter did not print their name on the form, unless the voter’s signature appears to be made by the voter and appears to be the name of the voter. Elections staff and board members must presume that the voter’s signature is that of the voter (even if illegible), unless there is clear evidence to rebut that presumption. • Voter did not check a box for at least one claimed exception or failed to identify their specific reasonable impediment • Voter failed to provide their NC Driver’s License Number or last four digits of their Social Security Number • Voter failed to sign the Exception Form. If a voter is physically unable to sign or make their mark due to a disability, a person of the voter’s choice should write “Disabled- cannot sign” in the signature line and complete the Voter Assistance Certification on the back of the ballot envelope (Numbered Memo 2022-11). Elections staff review of photo ID documentation is for completeness, not falsity. A board’s finding of falsity must be unanimous and based on the board’s review of other specific information. Per Numbered Memo 2023-03, the county board must be able to point to specific information before the board that led it to conclude that the affidavit on the Photo ID Exception form is false. The decision that the Form is false must be based on facts, not on speculation. In addition, a finding of falsity may not be based on the personal opinion as to whether the voter’s asserted reason is good enough for being excepted from the photo ID requirement. Lastly, a decision that the form is false can only be made after the county board provides the voter notice and opportunity to be heard on any grounds that the county board is considering regarding a finding of falsity. In addition to these three types of deficiencies, there are other deficiencies that cannot be resolved by staff and require board action. The deficiencies include the following: • 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 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 2022-15, 2022-11, 2021-07, 2021-03, 2020-29, 2020-25, 2020-23, and 2023- 03, Supplemental Absentee Poll Book; Supplemental Absentee Certificates of Oath; Supplemental Absentee Abstract; Reconciliation Log Sheets (Provided at meeting) Board Action Required: Discuss as necessary and action required Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-23 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: In-Person Return of Absentee Ballots DATE: September 22, 2020 (updated September 29, 2023) Absentee-by-mail voters may choose to return their ballot by mail or in person. Voters who return their ballot in person may return it to the county board of elections office by 5 p.m. on Election Day or to any early voting site in the county during the early voting period. This numbered memo provides guidance and recommendations for the safe, secure, and controlled in- person return of absentee ballots.1 General Information Who May Return a Ballot For most voters, only the voter, or the voter’s near relative or legal guardian, is permitted to hand-deliver an absentee ballot.2 For voters who need assistance returning their absentee ballot due to a disability, any person of that voter’s choice may return the absentee ballot for the voter, which could include a multipartisan assistance team (MAT).3 Outside of this disability exception, neither a MAT member nor any other person may take possession of an absentee ballot, unless they are the voter’s near relative or legal guardian. Intake of Absentee Ballots and Accompanying Photo ID Documentation As outlined in Numbered Memo 2021-03, trained county board staff shall review each ballot container-return envelope (ballot envelope) and accompanying photocopy of the voter’s photo 1 This numbered memo was updated on September 29, 2023, to include processes related to photo ID requirements for absentee-by-mail voting. 2 It is a class I felony for any person other than the voter’s near relative or legal guardian to take possession of an absentee ballot of another voter for delivery or for return to a county board of elections. G.S. § 163-226.3(a)(5); see also G.S. § 163-231(b)(1). 3 See Numbered Memo 2022-11. 2 ID or a completed Photo ID Exception Form (photo ID documentation) that are transmitted to the county board in an outer return envelope, to determine if there are any deficiencies. Typically, depending on the intake volume, staff review of the absentee ballot materials for acceptability occurs at a later time. But nothing prohibits staff from advising a person returning a ballot of any deficiencies that are noted at intake which would permit the voter to promptly correct those deficiencies. Although a hand-delivered absentee ballot is not required to be enclosed in an outer return envelope (which is used for mailing), the ballot must be sealed, either in the ballot envelope or the return envelope, for it to be accepted. If the voter is returning their ballot and it is unsealed, the voter should be instructed to seal the ballot envelope. If someone other than the voter is returning the ballot, that person should be advised that the county board may not accept an unsealed ballot, and the ballot must be sealed by the voter or in the voter’s presence.4 It is not recommended that county board staff serve as a witness for a voter while on duty since staff may need to make determinations about the ballot acceptance or other decisions pertaining to the absentee balloting process. However, staff who are not involved in the review of absentee ballot envelopes may be permitted to serve as a witness since the potential for a conflict would not exist and this would provide a service to a voter that may have no other way to meet the witness requirements. Copying a Voter’s Photo ID for a Voter Hand-Delivering an Absentee Ballot A voter, or any person permitted to return an absentee ballot as noted above, may request that staff make a photocopy of the voter’s photo ID to accompany the absentee ballot when hand- delivering an absentee ballot to the county board of elections office. Early voting sites are not required to have a copier available for this purpose, but a county may choose to do so if it has the available resources and staff. If the photo ID is a type of ID acceptable for voting purposes under 08 NCAC 17 .0101(a)(1), staff are required to make a photocopy of the voter’s photo ID at no cost to the voter, and to ensure that the photocopy is readable so it will be deemed acceptable when it is reviewed by the county board.5 Staff do not need to complete the assistant section of the ballot envelope when 4 G.S. § 163-231(a)(3). See Numbered Memo 2021-03 for further information on return deficiencies. 5 See 08 NCAC 17 .0109(e). Staff should consult the list of approved photo IDs that has been distributed by the State Board to determine whether the photo ID is an acceptable type. If the photo ID requested to be copied is not an acceptable type, then staff should inform the person of this fact and invite the person to provide for copying any other photo ID that is acceptable. 3 performing this task. After staff have made the photocopy of the photo ID, they should return the photo ID to the person delivering the absentee ballot, and then have that person place the photocopy of the photo ID in the clear sleeve used for this purpose on the ballot envelope, place the ballot envelope in the return envelope, and then seal the return envelope before handing it over to staff for intake. If the return envelope is already sealed, staff should open the return envelope so that the person can accomplish this task.6 To avoid confusion when staff is later reviewing the absentee ballot materials for deficiencies, the intake staff person should note on the return envelope that it was opened to allow photo ID documentation to be provided in person. Log Requirement An administrative rule requires county boards to keep a written log when any person returns an absentee ballot in person.7 The contents of the log are prescribed in the administrative rule, and county boards shall use the form provided by the State Board which complies with this rule. Intake staff shall note on the log the date that it was received. Because of the log requirement, an absentee ballot may not be left in an unattended drop box. Board Consideration of Delivery and Log Requirements Failure to comply with the logging requirement, or delivery of an absentee ballot by a person other than the voter, the voter’s near relative, the voter’s legal guardian, or a person of the voter’s choice when the voter needs assistance due to disability, is not sufficient evidence in and of itself to establish that the voter did not lawfully vote their ballot.8 A county board shall not disapprove 6 Intake staff do not conduct a review of whether the person hand-delivering the absentee ballot reasonably resembles the photo on the photo ID when the absentee ballot is hand-delivered at the county board office or an early voting site. The law provides specific requirements that a county board is to ensure are met by photo ID documentation accompanying an absentee-by-mail ballot, and reasonable resemblance of the voter to their photo ID is not one of them. See 08 NCAC 17 .0109. 7 08 NCAC 18 .0102 requires that, upon delivery, the person delivering the ballot shall provide the following information in writing: (1) Name of voter; (2) Name of person delivering ballot; (3) Relationship to voter; (4) Phone number (if available) and current address of person delivering ballot; (5) Date and time of delivery of ballot; and (6) Signature or mark of person delivering ballot certifying that the information provided is true and correct and that the person is the voter or the voter's near relative. 8 Id. Compare G.S. § 163-230.2(3), which states that an absentee request form returned to the county board by someone other than an unauthorized person is invalid. 4 an absentee ballot solely because it was delivered by someone who was not authorized to possess the ballot. The county board may, however, consider the delivery of a ballot in accordance with the rule, 08 NCAC 18 .0102, in conjunction with other evidence in determining whether the ballot is valid and should be counted. Return at a County Board Office A voter may return their absentee ballot to the county board of elections office any time the office is open. A county board must ensure its office is staffed during regular business hours to allow for return of absentee ballots until the end of Election Day. . You are not required to accept absentee ballots outside of regular business hours. Similar to procedures at the close of polls on Election Day, if an individual is in line at the time your office closes or at the absentee ballot return deadline (5 p.m. on Election Day), a county board shall accept receipt of the ballot. If your site has a mail drop or unattended drop box used for other purposes, you must affix a sign stating that voters may not place their ballots in the drop box. However, a county board may not disapprove a ballot solely because it is placed in a drop box.9 In determining the setup of your office for in-person return of absentee ballots, you should consider and plan for the following: • Ensure adequate parking, especially if your county board office will be used as a one-stop site • Provide signage directing voters to the location to return their absentee ballot • Ensure the security of absentee ballots and the privacy of the photo ID documentation that accompanies the absentee ballot. Use a locked or securable container for returned absentee ballots that cannot be readily removed by an unauthorized person. • If your set-up allows the return of ballots outside, plan for the possibility of severe weather. You may need a tent or other covering. Have a plan for how crowd control will occur without the physical barriers of an office and the security of your staff and the balloting materials. For safety reasons, it is not recommended you keep an outside return location open after dark or during inclement weather. Return at an Early Voting Site Location to Return Absentee Ballots Each early voting site shall have at least one designated, staffed station for the return of absentee ballots. Return of absentee ballots shall occur at that station. The station may be set up exclusively for absentee ballot returns or may provide other services, such as a help desk, 9 Id. 5 provided the absentee ballots can be accounted for and secured separately from other ballots or processes. Similar to accepting absentee ballots at the county board of elections office, you should consider and plan for the following with the setup of an early voting location for in- person return of absentee ballots: • Have a plan for how crowd control will occur and how voters will be directed to the appropriate location for in-person return of absentee ballots • Provide signage directing voters • Ensure adequate parking and sufficient space for long lines • If your set-up allows the return of ballots outside, plan for the possibility of severe weather. You may need a tent or other covering. Have a plan for how crowd control will occur without the physical barriers of an office and the security of your staff and the balloting materials. For safety reasons, ensure that there is adequate lighting as voting hours will continue past dark. Because absentee ballots must be returned to a designated station, absentee ballots should not be returned in the curbside area. Procedures Absentee ballots that are hand-delivered must be placed in a secured container upon receipt, similar to how provisional ballots are securely stored at voting sites. Absentee-by-mail ballots delivered to an early voting site must be stored separately from all other ballots in a container designated only for absentee-by-mail ballots. The secure storage of absentee-by-mail ballots is also important because these ballots will be accompanied by photo ID documentation, which could contain confidential information. County boards must also conduct regular reconciliation practices between the log and the absentee ballots. County boards are not required by the State to log returned ballots into SOSA; however, a county board may require their early voting site staff to complete SOSA logging. If a voter brings in an absentee ballot and does not want to vote it, the ballot should be placed in the spoiled-ballot bag in such a way that will distinguish it from ballots issued to the voting site when later performing reconciliation. Voters who call the county board office and do not want to vote their absentee ballot should be encouraged to discard the ballot at home. Return at an Election Day Site An absentee ballot may not be returned at an Election Day polling place. If a voter appears in person with their ballot at a polling place on Election Day, they shall be instructed that they may (1) take their ballot to the county board office by 5 p.m. or mail it so it is postmarked that day and received by the deadline; or (2) have the absentee ballot spoiled and vote in-person at their polling place. 6 If someone other than the voter appears with the ballot, they shall be instructed to take it to the county board office or mail the ballot so it is postmarked the same day. If the person returning the ballot chooses to mail the ballot, they should be encouraged to take it to a post office to ensure the return envelope is postmarked. Depositing the ballot in a USPS mail box on Election Day may result in the return envelope not being postmarked by Election Day and therefore not being counted. Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2021-03 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Absentee Container-Return Envelope Deficiencies DATE: June 11, 2021 (updated September 25, 2023)1 The State Board is required to provide a cure process for voters whose absentee ballot envelopes contain certain deficiencies.2 A cure process for photo ID documentation containing deficiencies, when that documentation is submitted with an absentee ballot, is provided through an administrative rule adopted by the State Board3 and is guided by this numbered memo. The cure process for all other absentee-by-mail deficiencies is guided by this numbered memo. County boards of elections must ensure that the votes of all eligible voters are counted using the same standards, regardless of the county in which the voter resides. The ballot container-return envelope (ballot envelope) and the accompanying photocopy of the voter’s photo ID or completed Photo ID Exception Form (photo ID documentation) are transmitted to the county board in an outer return envelope. This numbered memo directs the procedure county boards must use to address deficiencies in the envelopes and photo ID documentation, to ensure that a voter is provided every opportunity to correct certain deficiencies, while also recognizing that processes must be manageable for county boards to timely complete required tasks. 1 This numbered memo replaces Numbered Memo 2020-19, which was first issued on August 21, 2020 and subsequently revised and reissued on September 22, 2020, and October 17, 2020. This numbered memo was updated on September 25, 2023, to include processes related to photo ID requirements for absentee-by-mail voting. 2 See Democracy NC v. State Board of Elections, 476 F.Supp.3d 158 (M.D.N.C. Aug. 4, 2020). 3 08 NCAC 17 .0109(b). 2 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 record, or the voter’s signature on their photocopy of photo ID or Photo ID Exception Form submitted with their ballot, because this is not a requirement for the approval of an absentee ballot under North Carolina law.4 County boards shall accept the voter’s signature on the ballot envelope if it appears to be made by the voter, meaning the signature on the envelope appears to be the name of the voter and not some other person. Absent clear evidence to the contrary, the county board shall presume that the voter’s signature is that of the voter, even if the signature is illegible. A voter may sign their signature or make their mark. Types of Deficiencies Trained county board staff shall review each return envelope, executed ballot envelope, and photo ID documentation the office receives to determine if there are any deficiencies. County board staff shall, to the extent possible, regularly review these absentee ballot materials on each business day, to ensure that voters have every opportunity to timely correct deficiencies. Review for deficiencies occurs after intake. The initial review is conducted by staff to expedite processing of the envelopes in advance of a county board absentee meeting.5 There are three categories of deficiencies: 1) return deficiencies, 2) ballot application deficiencies, and 3) photo ID documentation deficiencies. 1. Return Deficiencies Previously, a voter transmitted their absentee-by-mail ballot to the county board in a single ballot container-return envelope. However, with the implementation of photo ID requirements starting with the 2023 municipal elections, the ballot envelope is now transmitted to the county board in an outer return envelope to ensure the privacy of the accompanying photo ID documentation. As a result, there may be certain instances where the return of the absentee ballot requires the ballot to be spoiled and the absentee package reissued to the voter. 4 See In re: Request for Declaratory Ruling on Signature Matching for Absentee Ballot Requests and Ballot Envelopes, N.C. State Bd. of Elections (July 22, 2022). See also Numbered Memo 2020-15, which explains that signature comparison is not permissible for absentee request forms. 5 See Numbered Memo 2020-25 regarding preparatory steps for absentee meetings. 3 Deficiencies that Require the Ballot to Be Spoiled (Civilian) • Ballot is inside the ballot envelope, which is not sealed or which appears to have been opened and re-sealed, and the ballot envelope is received in a return envelope which is not sealed or which appears to have been opened and re-sealed.6 • Ballot is inside the executed ballot envelope, which is not sealed, and someone other than the voter hand delivers the ballot envelope to an early voting site or the county board office, and the return envelope is also unsealed or there is no return envelope. Even if the person is authorized to return this ballot, they cannot seal the ballot without the voter being present. The voter must direct that the ballot be sealed “in the voter’s presence.”7 • The return or ballot envelope indicates the voter is requesting a replacement ballot. If a county board identifies one of these deficiencies, county board staff shall spoil the returned ballot and reissue a ballot, as long as the new ballot is issued before Election Day, along with a notice explaining the county board office’s action, in accordance with this numbered memo. Anomalies that Are Not Deficiencies (Civilian) • Ballot is inside the executed ballot envelope, which is not sealed or which appears to have been opened and re-sealed, but the ballot envelope is received in a sealed return envelope. Immediately upon opening the return envelope and noticing this situation, staff should re-seal the return envelope with a notation of “sealed in return envelope.” The county board should open the return envelope and address that ballot at its next absentee meeting.8 • Ballot is not inside the ballot envelope or has been placed inside the clear sleeve on the ballot envelope used for including the photo ID documentation, but the return envelope is sealed. Immediately upon opening the return envelope and noticing this situation, staff should re-seal the return envelope with a notation of “sealed in return envelope.” The county board should open the return envelope and address that ballot at its next absentee meeting.9 6 Ballots must be “sealed in the container-return envelope.” G.S. § 163-230.1(d); see also G.S. § 163-231(a)(3). 7 G.S. § 163-231(a)(3). 8 In this situation, for the purposes of staff's initial review of photo ID documentation pursuant to 08 NCAC 17 .0109(b), the ballot application is not “received” until the return envelope is opened at the absentee meeting. 9 In this situation, for the purposes of staff's initial review of photo ID documentation pursuant to 08 NCAC 17 .0109(b), the ballot application is not “received” until the return envelope is opened at the absentee meeting. 4 • Ballot is received in a return envelope that is not sealed or appears to have been opened and re-sealed, but the ballot is inside the executed ballot envelope that is sealed. This situation does not require any special action to document the anomaly before presenting the ballot envelope to the county board. • Ballot is inside the executed ballot envelope, which is not sealed, and the voter hand delivers the ballot envelope to an early voting site or the county board office. Before taking receipt of the envelope, staff should request that the voter first seal the ballot envelope. In all of the above situations, the ballot was received in a sealed envelope and is therefore not deficient.10 A person hand-delivering the absentee ballot, whether it is the voter or someone authorized to return the voter’s ballot, is not required to deliver the ballot envelope inside the return envelope for the absentee application to be approved. The return envelope is designed to protect the voter’s confidential identifying information during mail transit. If the person hand-delivers only the sealed ballot envelope, staff should follow their usual storage practices and keep the ballot envelope in a secure location, which may include placing the ballot envelope in a new return envelope for storage purposes. 2. Ballot Application Deficiencies The ballot application is the form on the ballot envelope that is completed by the voter, their witnesses or notary, and assistant (if applicable).11 Ballot application deficiencies fall into two main categories: those that can be cured with a certification by the voter, and those that cannot be cured. If a deficiency cannot be cured, the ballot must be spoiled and a new ballot must be issued, as long as the new ballot is issued before Election Day. See the Voter Notification Section below. Deficiencies Curable with Cure Certification (Civilian and UOCAVA) The following deficiencies can be cured by sending the voter a cure certification: • Voter did not sign the Voter Certification. • Voter signed in the wrong place. The cure certification process applies to civilian and UOCAVA voters. 10 G.S. §§ 163-230.1(d), 163-231(a)(3). 11 G.S. § 163-229(b). 5 Deficiencies that Require the Ballot to Be Spoiled (Civilian) The following deficiencies cannot be cured by certification, because the missing information comes from someone other than the voter: • The name of the witness or assistant is not printed,12 unless the witness’s or assistant’s signature is legible such that the name can be determined, in which case the ballot envelope is not deficient and the ballot shall not be spoiled for this reason. • A witness or assistant did not print their address.13 • 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, however, if all required information from the witness or assistant is present but not on the designated line for each (for example, the witness or assistant printed their name on the address line, printed their address on the name line, and signed), the ballot envelope is not deficient and the ballot shall not be spoiled for this reason. Additionally, when a voter’s witness is a notary, two errors in the notarial certificate cannot be cured by certification and will result in the ballot being spoiled: 1) the notary’s signature is missing, or 2) the notarial seal is missing altogether or contains missing information. As discussed in Numbered Memo 2021-07, other technical errors with the notarial certificate will not affect the sufficiency, validity, or enforceability of the notarial certificate itself or the underlying document and are not considered deficiencies. 12 If the printed name is readable and on the correct line, even if it is written in cursive script, for example, it does not invalidate the ballot envelope. 13 Failure to list a witness’s ZIP code does not invalidate the ballot envelope. G.S. § 163- 231(a)(5). A witness’s or assistant’s address does not have to be a residential address; it may be a post office box or other mailing address. Additionally, if the address is missing a city or state, but the county board of elections can determine the correct address, the failure to list that information does not invalidate the ballot envelope. For example, if a witness lists “Raleigh 27603,” you can determine the state is NC, or if a witness lists “333 North Main Street, 27701,” you can determine that the city/state is Durham, NC. If both the city and ZIP code are missing, staff will need to determine whether the correct address can be identified. If the correct address cannot be identified, the envelope shall be considered deficient and the ballot spoiled and a new ballot reissued. See Numbered Memo 2020-29 for additional information regarding address issues. 6 3. Photo ID Documentation Deficiencies When a voter includes photo ID documentation with their absentee ballot envelope, there may be deficiencies in that documentation that require a cure notice to be sent to the voter. All deficiencies with a voter’s photo ID documentation are curable, because the cure documentation comes from the voter. Photocopy of Photo ID Deficiencies Deficiencies in a photocopy of a voter’s photo ID include: • The ID is not a type of ID that is acceptable for voting purposes under 08 NCAC 17 .0101(a)(1). • The ID does not meet expiration requirements, if applicable. • The photocopy is not readable, which means that the name on the ID cannot be read, the photograph on the ID does not depict a person (e.g., it only depicts a shadow or outline of a person), or both. • The name on the ID is not the same as or substantially equivalent to the voter’s name in their voter record. Any difference between the voter’s address on their ID and the address in their registration record is not a deficiency. Photo ID Exception Form Deficiencies Deficiencies in a Photo ID Exception Form include: • The voter did not print their name on the Form, unless the voter’s signature on the Form appears to be made by the voter, meaning the signature on the Form appears to be the name of the voter and not some other person. The county board shall presume that the voter’s signature is that of the voter, even if the signature is illegible, unless there is clear evidence to rebut this presumption. • The voter did not check a box for at least one claimed exception from the photo ID requirements, or if the exception is a reasonable impediment, the voter failed to identify their specific reasonable impediment (including by writing their reason if they chose “Other”14). 14 If the voter writes a reason for “Other” but does not check the “Other” box, the Form is not deficient for that reason alone. 7 • If the reasonable impediment chosen is that the voter is unable to make a photocopy of their ID to include with their ballot, the voter did not include their North Carolina driver’s license number, DMV ID number, or last 4 digits of their social security number.15 • The voter did not sign the Form.16 Additionally, a voter’s failure to include any photo ID documentation—either a photocopy of their ID or an Exception Form—is a deficiency that may be cured. A voter may respond to a notification that their ballot is missing photo ID documentation by stating that it is in the ballot envelope. If this occurs, staff must defer the review of the photo ID documentation to the next absentee board meeting, when the county board can review the application and, if approved, open the ballot envelope and confirm photo ID compliance.17 If the board identifies a photo ID deficiency at that point, staff should be instructed to notify the voter of the opportunity to cure as explained further in this memo. Although a county board’s finding that a Photo ID Exception Form is false will result in the absentee ballot being rejected, this is not a “deficiency” in the same sense as the ones listed above. Staff deficiency review of Photo ID Exception Forms is for completeness—not falsity. A board’s finding of falsity can only come after the board considers other information and gives the voter notice and an opportunity to be heard on the matter. See Numbered Memo 2020-25, p 8 (“Review of Photo ID Exception Forms”). 4. Deficiencies that require board action Some deficiencies cannot be resolved by staff and require action by the county board. These include 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 ballot envelope, more than one ballot is in the ballot envelope, or two voters’ ballots and ballot envelopes were switched. If the county board disapproves a ballot envelope by majority vote in a board meeting, it shall proceed according to the notification process outlined below. If the county board disapproves a ballot for 15 G.S. § 163-230.1(g)(2). 16 If a voter is unable to sign the Photo ID Exception Form due to a disability, the person of the voter’s choice who is assisting them can sign the Form on the voter’s behalf and must complete the assistant certification on the envelope. See Numbered Memo 2022-11, p. 3 (Court Order Regarding Assistance for Absentee Voters with Disabilities). 17 This does not prevent the voter from also choosing to send photo ID cure documentation to the county board while its review of the application is pending, and staff may encourage the voter to do so when time is of the essence. 8 a reason based on the voter’s photo ID documentation, it shall proceed according to the notification process in 08 NCAC 17 .0109 and as outlined below. Voter Notification Issuance of an Absentee Ballot Deficiency Notification or New Ballot If there are any return deficiencies or ballot application deficiencies, 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 an absentee ballot deficiency notification, which contains the cure certification, or a new ballot. The written notice shall also include information on how to vote in-person during the early voting period and on Election Day. When the voter is issued a new ballot, they must include new photo ID documentation with their ballot when transmitting it back to the county board, because each absentee ballot envelope “returned to the county board . . . shall be accompanied by” a photocopy of the voter’s photo ID or Photo ID Exception Form.18 The written notice shall be sent to the address to which the voter requested their ballot be sent. The outside of the envelope containing the new ballot or absentee ballot deficiency notification should be in an official envelope so that it indicates that it contains official election mail, unless it is not possible due to the use of a specialized USPS or commercial carrier service envelope. If the deficiency can be cured and the voter has an email address on file, the county board shall also send the absentee ballot deficiency notification to the voter by email. If the county board sends the notification by email and by mail, the county board should encourage the voter to only return one of the notifications with the certification. If the 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 an absentee ballot deficiency notification. 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. If there is a photo ID documentation deficiency, the county board must follow the cure process in 08 NCAC 17 .0109(b). The county board must 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, 18 N.C.G.S. § 163-230.1(f1). 9 enclosing an absentee ballot deficiency notification that identifies the specific deficiencies with the photo ID documentation. The notification must also inform the voter that the voter, the voter’s verifiable legal guardian or near relative, or a person of the voter’s choice if the voter needs assistance due to the voter’s disability, may provide the photo ID cure documentation to the county board. Staff must additionally notify the voter by telephone or email, using any telephone number or email address contained in the voter’s registration record or provided by the voter when requesting an absentee ballot. The photo ID cure documentation can be either a new photocopy of the voter’s photo ID or a new Absentee Photo ID Exception Form. A voter who submitted a deficient photocopy of their photo ID may also submit a Photo ID Exception Form for the first time. A voter may choose to do so because, in this instance, it is now likely that they are unable to make a photocopy of their ID to include with their ballot. Likewise, a voter who submitted a deficient Photo ID Exception Form may also submit a photocopy of a photo ID for the first time. A voter may choose to do so because they may have obtained a photo ID, or the means to make a photocopy, since the time at which they transmitted their absentee ballot to the county board. Accordingly, when sending an absentee ballot deficiency notification for a photo ID documentation deficiency, the county board must include a blank Absentee Photo ID Exception Form. Receipt of a Cure Certification or Photo ID Cure Documentation The cure certification or photo ID cure documentation must be received by the county board of elections by 5 p.m. the day before county canvass. The cure documents may only be returned by the voter, the voter’s near relative or legal guardian, a multipartisan assistance team (MAT), or a person of the voter’s choice if the voter needs assistance due to the voter’s disability.19 A cure document returned by any other person is invalid. The cure documents may be submitted to the county board office by email, by mail or commercial carrier, in person, or by fax. There is not a postmark requirement for cure documents returned by mail – the documents must be received by the deadline, not postmarked by the deadline. If a voter appears in person at the county board office, they may also be given, and can complete, a cure certification. Similarly, a voter may appear in person and complete a Photo ID Exception 19 Voters who require assistance in returning their ballot due to the voter’s disability, can direct the person of their choice to return the ballot according to the voter’s instruction (i.e., by mail or in person to the county board). See Numbered Memo 2022-11. 10 Form to accompany the ballot envelope20, or request that staff make a photocopy of the voter’s photo ID to accompany the ballot envelope.21 It is not permissible for a cure certification to be submitted through a portal or form created or maintained by a third party. A cure certification may not be submitted simultaneously with the ballot. Any person who is permitted to assist a voter with their ballot may assist a voter in filling out the cure certification, making a photocopy of the voter’s photo ID, or filling out the Photo ID Exception Form, but the certification and Photo ID Exception Form must be signed by the voter.22 A wet ink signature is not required for cure documents, but the signature used must be unique to the individual. A typed signature is not acceptable, even if it is cursive or italics such as is commonly seen with an electronic signature program, such as DocuSign. County Board Review of Cure Documentation At each absentee board meeting, the county board of elections may consider deficient ballot return envelopes for which cure documentation has been returned, whether a cure certification or photo ID documentation. The county board shall consider together the executed absentee ballot envelope and the cure documentation. If the cure documentation was timely received, includes the required documentation or attestations, and was returned by an authorized person, the county board of elections shall approve the absentee ballot. See Numbered Memo 2020-25. 20 The option to complete a Photo ID Exception Form in the county board office is only available for voters who are voting absentee-by-mail. Voters who vote in person at an early voting site or on Election Day must complete the Photo ID Exception Form at the voting site. See Numbered Memo 2023-03. 21 See Numbered Memo 2020-23 regarding staff making photocopies of photo IDs for inclusion with an absentee ballot envelope. 22 If a voter is physically unable to sign or make their mark on the Photo ID Exception Form due to disability, any person of that voter’s choice can write in the signature line, “Disabled - cannot sign.” See Numbered Memo 2022-11. Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-25 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Absentee Board Meetings DATE: September 22, 2020 (updated September 23, 2020, and September 18, 2023) This numbered memo addresses the requirements and procedures for conducting absentee ballot meetings, as set forth in state law. It also addresses questions that are commonly asked in connection with absentee meetings or the review and custody of absentee ballots. Legal Requirements for Absentee Meetings General Requirements Beginning every Tuesday on the fifth Tuesday before Election Day, county boards of elections must hold a public meeting at 5:00 p.m. to review and act upon absentee ballots.1 The county board of elections may change the time of these meetings (to an earlier or later time) and may provide for additional meetings. However, absentee meetings may not be held prior to the fifth Tuesday before Election Day. Any meetings that are held at a different time on Tuesdays and any additional meetings must be noticed in a county newspaper at least 30 days prior to the election. You must also send notice of absentee meetings to your regular notice list, including to the county political parties. At each absentee board meeting, the board must act upon all absentee container-return envelopes received prior to that meeting and after the previous absentee meeting.2 An absentee meeting must be held if there are any absentee ballots (absentee by mail or one-stop early voting ballots) for the board to review. Absentee meetings should only be cancelled if the board has not 1 G.S. §163-230.1(f). 2 See G.S. § 163-230.1(e): “At its next official meeting after return of the completed container- return envelope with the voter’s ballots, the county board of elections shall determine whether the container-return envelope has been properly executed.” (Emphasis added.) 2 received any absentee container-return envelopes since the last absentee meeting.3 If you anticipate a high volume of absentee ballots returned, it is strongly recommended that your board schedule additional absentee board meetings and/or begin meetings earlier than 5:00 p.m. A county board may recess an absentee board meeting to a date and time certain if it is not possible to complete review of absentee ballots during the specified meeting period. The notice should be sent as soon as possible but it is not required to be sent 48 hours in advance of the reconvened meeting if that is not possible based on when the meeting was recessed from. To determine how many additional absentee meetings you need to schedule, consider how many absentee ballot requests your county has received to date, how many total requests your county received for a similar election in the past, and estimate how many requests you anticipate based on the county’s current rate of requests. For example, if your county received 6,000 requests in November 2016 and you anticipate a 50% increase for the November 2024 election, that would be 9,000 requests total. If you have six absentee board meetings and everyone who requested a ballot returned one, your board would need to consider approximately 1,500 ballots per meeting. If your board scheduled ten absentee meetings, your board would consider around 900 ballots per meeting. County Board Member Attendance Absentee board meetings require a quorum of members present. A quorum is three members.4 If at all possible, at least one member from each political party should be represented at each absentee meeting when the board is approving absentee applications. Because board members must be able to view absentee envelopes in order to approve or disapprove the ballot, a quorum of board members must be physically present during each absentee board meeting. Once a quorum is physically present, remaining board members may attend the meetings via live video feed, but they must have a secure way to view the meeting and to participate. They must be able to view all materials that board members are reviewing to make decisions on the absentee envelopes. 3 See G.S. § 163-230.1(f), entitled “Required Meeting of County Board of Elections”: “During the period commencing on the fifth Tuesday before an election . . . the county board of elections shall hold one or more public meetings each Tuesday at 5:00 p.m. for the purpose of action on applications for absentee ballots.” (Emphasis added.) 4 G.S. § 163-31(d): “A majority of the members shall constitute a quorum for the transaction of board business.” 3 A majority of board members present at a meeting must vote for an action for it to pass. Public Attendance Absentee board meetings are public meetings and are subject to North Carolina’s open meetings laws. For absentee meetings, it is recommended that the county board locate a meeting room large enough to accommodate members of the public. If it is not possible to procure a sufficiently large space for those who may want to attend in person, the county board of elections should consider broadcasting the absentee board meetings via video feed using a service such as WebEx or Microsoft Teams. The public in attendance must be able to see and hear the proceedings without compromising the secrecy of any voter’s ballot. Staff must ensure that the public cannot view any voted ballots or other confidential information, such as a photocopy of a voter’s photo ID included with their ballot or a ballot identifier number (CIV, MIL, etc.), either in person or on a video feed. County board members and staff must be particularly mindful of ballot secrecy when duplicating ballots and inserting ballots into the tabulator. The public is not permitted to disrupt the process of adjudicating the validity of absentee applications by the board and is not part of the deliberation process during absentee board meetings. The decision of the county board of elections as to the validity of an envelope is final and is not subject to public comment, objection, or review.5 Confidentiality of Absentee Register G.S. § 163-228 requires county boards of elections to keep a register of absentee ballot requests that includes information about the request, the address to which the ballot should be sent, the date of the request, the voter’s precinct, and other information. The absentee request register is confidential and not a public record until Election Day.6 County boards of elections are not permitted to release copies of absentee request forms or identifying information that could be used to determine that a voter requested an absentee ballot. 5 G.S. § 163-230.1(f): “At these meetings, the county board of elections shall pass upon applications for absentee ballots. . . . The decision of the board on the validity of an application for absentee ballots shall be final subject only to such review as may be necessary in the event of an election contest.” 6 G.S. § 163-228(c). 4 Absentee request data is no longer confidential when the ballot is returned to the county board of elections office.7 Therefore, names of absentee voters may be read aloud during the absentee board meetings, as the ballot has been returned to the county board office at that point. If, however, a ballot has been delivered but there is a deficiency requiring the ballot to be spoiled and reissued, that voter’s name cannot be read aloud or otherwise disclosed, because that voter’s ballot is still outstanding. Reading from lists of voters who have requested absentee ballots or otherwise releasing the names of voters with outstanding requests is prohibited until the ballot is returned or until Election Day. It is a Class G felony for a person to “steal[], release[], or possess[] the official register of absentee requests for mail-in absentee ballots as provided in G.S. 163-228 prior to the opening of the voting place.”8 This does not apply to a ballot that has been received by the county board and is in a pending cure status, because at that point the ballot has been returned and it is only the cure certification for the voter’s signature deficiency or the voter’s photo ID cure documentation that must be submitted for the absentee application to be complete. Confidentiality of Copies of Photo ID and Information on a Photo ID Exception Form The photocopy of a voter’s photo ID is confidential and not a public record subject to disclosure.9 This means that the photocopy of the photo ID cannot be redacted and disclosed, because the entire photocopy is a confidential record under the law. The public is not permitted to view or receive copies of a voter’s copy of their photo ID submitted with their absentee ballot. A Photo ID Exception Form is a public record. However, the Form is likely to contain confidential information that must be redacted, when submitted with an absentee ballot. The most common reason for submitting a Photo ID Exception Form with an absentee ballot is likely to be that the voter is unable to make a photocopy of their ID to include with their ballot, which is a “reasonable impediment” specifically identified in the law.10 When choosing this option, the voter is required to write on the Form their North Carolina driver’s license number, DMV ID 7 See G.S. § 163-233(b), which makes the list of absentee applications received by the county board a public record. 8 G.S. § 163-237(d6). 9 G.S. §§ 163-82.10(a1) and 163-233(a). 10 G.S. § 163-230.1(g)(2). 5 number, or last 4 digits of their social security number.11 The public is not permitted to view this confidential information during an absentee meeting.12 Procedures for Review of Absentee Ballot Materials At each absentee board meeting, the county board of elections will review each absentee ballot container-return envelope (ballot envelope) to determine whether it has been properly executed and is accompanied by either a photocopy of the voter’s photo ID or a completed Photo ID Exception Form (photo ID documentation), and if so, to approve the application and ballot.13 Given the volume of absentee ballots the county board is required to review and act upon at each meeting, certain preparatory work should be performed by staff in advance, and the board should consider ways to streamline the process. Delegation of Preparatory Work The county board of elections has the authority to delegate to its director “so much of the administrative detail of the election functions, duties, and work of the board, its officers and members, as is now, or may hereafter be vested in the board or its members as the county board of elections may see fit.”14 However, the board may not delegate to a director or other staff any of its quasi-judicial or policymaking duties and authority. Based on the volume of absentee ballots a county board anticipates receiving, the county board should determine which preparatory tasks staff can complete prior to absentee board meetings. A delegation of administrative duties by the board to the director or staff should occur by majority vote. The delegation may be by resolution or the approved motion should be documented in the minutes. It should delegate specific preparatory steps that staff can perform prior to absentee board meetings, and the delegation must provide for oversight by the board. Preparatory steps include: • Inspecting ballot envelopes and return envelopes for deficiencies and contacting voters as required by Numbered Memo 2021-03. Please note that voters must be contacted within one business day of when staff identify the deficiency. It is not permissible to wait for the absentee board meeting to contact the voter about a deficiency. 11 G.S. § 163-230.1(g)(2). 12 Similarly, in the rare situation when a voter writes confidential information in the “Other” line on the Photo ID Exception Form, the county board would need to redact that information too. 13 G.S. § 163-230.1(e), (f), and (f1). 14 G.S. § 163-35(d). 6 • Sorting ballot envelopes with accompanying photo ID documentation into categories for the board to review and take action (e.g., approve or reject). • Verifying the list of ballot envelopes against the absentee pollbook. • Performing ballot duplication with a bipartisan team. A delegation of administrative duties to the director or staff does not need to include a preliminary review of photo ID documentation for deficiencies because this has already been tasked to staff by an administrative rule adopted by the State Board.15 Staff Review of Envelopes Upon receipt of an absentee ballot at the county board office, staff must review the materials accompanying the ballot—the photo ID documentation and the ballot envelope/application—to ensure there are no deficiencies. First, staff must confirm that the voter has included the necessary photo ID documentation and, if so, review that documentation to ensure that it meets the requirements of the administrative code provisions governing the approval of photo ID for absentee ballots, 08 NCAC 17 .0109(a) & (b). If the voter has included a photocopy of their photo ID, then staff should make an initial determination that: • The ID is a type of ID that is acceptable for voting purposes; • The ID meets any applicable expiration requirements; • The name on the ID can be read; • The photograph on the ID depicts a person (not a shadow or outline of a person); and • The name on the ID is the same as or substantially equivalent to the voter’s name in their voter record. If the voter has included a Photo ID Exception Form, then staff should make an initial determination that the voter has: • printed their name; • checked the box for at least one claimed exception from the photo ID requirements; and • signed the Form.16 15 08 NCAC 17 .0109(b). 16 If a voter is unable to sign the Photo ID Exception Form due to a disability, the person of the voter’s choice who is assisting them can sign the Form on the voter’s behalf and must complete the assistant certification on the envelope. See Numbered Memo 2022-11, p. 3 (Court Order Regarding Assistance for Absentee Voters with Disabilities). 7 If any deficiency exists with either a photocopy of the voter’s photo ID or a voter’s Photo ID Exception Form, staff must follow the photo ID cure process in 08 NCAC 17 .0109(b) and as described in Numbered Memo 2021-03. Second, staff must inspect the absentee ballot envelope to make an initial determination as to whether the envelope was properly executed, and if there is a deficiency with the envelope, whether that deficiency can be cured by the voter. If a voter signature deficiency exists, staff must follow the cure process in Numbered Memo 2021-03. Third, staff should perform an initial sort of ballot envelopes into categories upon initial review and to present those recommendations to the board at each absentee board meeting. Those categories may include designations for recommended approval, recommended disapproval, envelopes awaiting a cure certification or photo ID cure documentation, and those that staff have questions about that require deliberation by the board. The delegation may also require staff to prepare a report to the board indicating the number of ballot envelopes in each category for reconciliation purposes. Board Review of Envelopes The board may, by majority vote, accept staff’s recommendation for absentee ballot envelopes that staff have reviewed and recommended for approval. The delegation must include a process for the board to spot-check the envelopes and photo ID documentation to ensure accuracy and consistency. However, the board must individually review all ballot envelopes that: (1) have been recommended for disapproval by staff, (2) have a cure certification associated with that ballot envelope, or (3) where staff need further guidance from the board as to whether the envelope was properly executed or the photo ID documentation meets all legal requirements. It is also permissible for bipartisan teams of board members to pair off to review absentee ballot envelopes during each meeting, if the board votes to allow this. Whether the county board delegates the initial review of absentee envelopes to staff or chooses to have a bipartisan team of board members review envelopes during the meeting, all board members present at the meeting must approve or disapprove the ballots. A decision as to whether an envelope is properly executed and whether the photo ID documentation meets all requirements must be decided by a vote of the board as a whole and not by individual members.17 A board’s decision to disapprove a ballot based on a finding that a voter’s Photo ID 17 G.S. § 163-230.1(f) (“The county board of elections shall constitute the proper official body to pass upon the validity of all applications for absentee ballots received in the county; this function shall not be performed by the chairman or any other member of the board individually.”); see also 08 NCAC 17 .0109(c) (“Final Review by County Board”). 8 Exception Form is false can only be made by unanimous decision of all members of the board participating in the vote, and that decision must be in writing.18 A decision to disapprove a ballot for any other reason, or to approve the ballot, is by majority vote. Review of Photo ID Exception Forms The board must also individually review all completed Photo ID Exception Forms where staff has indicated that available information may lead the board to conclude that the Form is false. When staff has given this indication to the board, or if a board member raises a question as to the falsity of the Form after staff review, the voter must be given notice and an opportunity to be heard on the information that will be considered by the board, unless one or more board members disagree that there are grounds to believe the affidavit is false (in which case there is no need to notify the voter, since a finding of falsity on the Form must be unanimous).19 If the board is considering a finding of falsity, the board’s review of the envelope should remain in a pending status until the absentee meeting at which the voter has the opportunity to be heard, and the board can only make a final decision on the approval or disapproval of the envelope after the voter has that opportunity to be heard regarding their Form. Numbered Memo 2023-03 contains guidance as to what may be considered by a county board when reviewing a voter’s Photo ID Exception Form. Review of Photo ID Photocopies If the board reviews a photocopy of a voter’s photo ID that staff have identified as being acceptable, but unanimously determines that the photocopy of ID does not meet all legal requirements, staff are required to notify the voter.20 If this determination is made at an absentee meeting prior to the county canvass, the board’s review of the envelope should remain in a pending status until the county canvass, because in this instance the voter can still submit a new photocopy of their photo ID, or a Photo ID Exception Form if they are unable to submit a photocopy of their photo ID. Review of Deficient Photo ID Documentation that Is Uncured If staff has indicated that a voter’s photocopy of their photo ID or Photo ID Exception Form is deficient, and the photo ID documentation remains uncured, the board must reserve its final decision on the approval of the envelope until the county canvass and, when doing so, must individually review the photo ID documentation that has not been cured.21 An uncured 18 08 NCAC 17 .0109(c)(2). 19 08 NCAC 17 .0109(c). 20 08 NCAC 17 .0109(c)(1). 21 08 NCAC 17 .0109(c)(3). 9 deficiency with the photo ID documentation does not prevent the board from making a preliminary determination on the envelope when staff has indicated further guidance is needed as to a potential deficiency, so that any envelope-related deficiencies can also be identified and the voter notified. Formalizing Approval of Envelopes After absentee envelopes and accompanying photo ID documentation are approved by the board, the task of stamping every envelope with “Approved” and stamping or otherwise affixing the chair’s signature or initials to the ballot envelopes may be delegated to staff. Alternatively, the board’s delegation may authorize the board to sign a cover sheet containing a list of envelopes that were acted upon during the meeting and indicating whether those envelopes were approved or disapproved in lieu of signing the individual envelopes. The delegation may also apply to review and approval of one-stop absentee applications. Scanning Absentee Ballots at Absentee Board Meetings It is important to distinguish between scanning and tabulating approved ballots, because the law permits each task to occur at different times. “Scanning” is a preparatory step that occurs when the approved absentee ballots are opened, removed from the envelope, and inserted into the tabulator. The tabulator reads the ballots but does not print the totals at that time, and no election returns are released. “Tabulating” or “counting” occurs on Election Day and involves closing the polls on a tabulator and printing tabulated results from ballots that have been previously scanned. A county board of elections may, by majority vote, decide to scan absentee ballots during each absentee meeting.22 If a county board anticipates a large volume of absentee ballots, it is strongly recommended that the board authorize the scanning of approved ballots during absentee board meetings instead of waiting until Election Day. The scanning cannot begin until a majority of the board members and at least one board member of each political party is in attendance. If a board member of each political party is not available, the chair or other member of the executive committee of the county political party of the absent member must be present. The political party representative shall act as an official witness to the scanning and shall sign the absentee ballot abstract as an “observer.”23 Staff may enter the approved ballots into the tabulator, but each board member present is responsible for and must observe and supervise the opening of the envelopes and scanning of the 22 G.S. § 163-234(3). 23 G.S. § 163-234(9). 10 ballots.24 It is not permissible for approved ballot envelopes to be opened, for ballots to be removed from the envelope, or for ballots to be inserted into the tabulator outside of a board meeting. These tasks cannot be delegated to staff to complete outside of a board meeting. If the board chooses to scan approved ballots during absentee meetings, it should consider ways to make the process as efficient and streamlined as possible. For example, the board could approve staff-recommended ballots first, then direct the staff to open those envelopes and enter the ballots into the tabulator while the board reviews the envelopes that require further consideration and those that staff have recommended be disapproved. Scanning of ballots must be performed during a board meeting, and if scanning occurs before Election Day, ballots must be scanned at the same meeting during which they were approved.25 The number of approved absentee ballots must be reconciled with the number of ballots inserted into the tabulator. Reconciliation should be completed at each board meeting. If it is not possible to scan all approved ballots at that meeting, the board may recess the scanning to a time and date certain, which could be the next absentee board meeting. The county board should send out the notice as soon as possible but it is not required to be sent 48 hours in advance of the reconvened meeting. Ballots should be processed in groups, so that ballots from all opened ballot envelopes are processed in the same meeting. Election Day Meeting County boards are strongly encouraged to begin counting ballots at 2 p.m. rather than 5 p.m. on Election Day to avoid a delay in absentee results being released on election night.26 County boards may begin counting UOCAVA ballots beginning at 9 a.m. on Election Day. To begin counting ballots prior to 5 p.m., a county board must adopt a resolution at least two weeks prior to the election stating the hour and place of the counting of absentee ballots. The resolution also may provide for an additional meeting following the day of the election and prior to the day of canvass to count absentee ballots received pursuant to G.S. 163-231(b)(ii) or (iii) as provided in subdivision (11) of G.S. § 163-234. A copy of the resolutions shall be published 24 G.S. § 163-234(5). 25 G.S. § 163-234(3): “Notwithstanding the provisions of subdivision (2) of this section, a county board of elections may, at each meeting at which it approves absentee ballot applications pursuant to G.S. 163-230.1(c) and (c1), remove those ballots from their envelopes and have them read by an optical scanning machine, without printing the totals on the scanner.” (Emphasis added). 26 G.S. § 163-234(2). 11 once a week for two weeks prior to the election, in a newspaper having general circulation in the county. Notice may additionally be made on a radio or television station or both, but such notice shall be in addition to the newspaper and other required notice. At its meeting on Election Day, county boards must count all absentee ballots that have come in prior to 5 p.m. on the day before Election Day. No absentee ballot counting results may be released until after the polls close. Ballot Duplication UOCAVA ballots and ballots that have been damaged or otherwise cannot be read by the tabulator must be duplicated in order to be scanned by the machine and to avoid having to manually enter the voter’s selections into the reporting software. County boards may adopt a policy to authorize a bipartisan team of staff members or poll workers to duplicate ballots outside of an absentee board meeting. The policy must include the following: • Each bipartisan duplication team must consist of at least three staff members, with no more than two members being of the same political affiliation. It is a best practice to have at least four members, two of each political party, to ensure accuracy. • The director must supervise and train all members of the duplication team and assign the following roles: o Ballot Caller – Announces the voter’s selections listed on the original ballot to the Ballot Duplicator and Ballot Reviewer. o Ballot Duplicator – Replicates the voter’s selections from the original ballot onto the machine-readable ballot as instructed by the Ballot Caller. o Ballot Reviewer – Reviews the Ballot Caller’s readings from the original ballot and compares it to the selections recorded on the machine-readable ballot by the Ballot Duplicator to ensure accuracy. It is a best practice to have two ballot reviewers, one who will review the selection announced by the Ballot Caller and one who will review the selection made by the Ballot Duplicator. • Prior to the start of the ballot duplication process, each member of the bipartisan duplication team must complete a participation log noting the date, time, and their name, role, and party affiliation. • During the ballot duplication process, the duplication team is not permitted to leave each other’s immediate presence until the process has been completed, unless authorized by the director. • All duplicated ballots must contain the following in the blank box at the top of each ballot: o A notation (for example, “DUP”) to indicate the ballot is a duplicate of the original. o The ballot number assigned to the voter. o The precinct of the voter. 12 • Upon completion of the process, the team must do the following: o Ensure that the duplicated ballots are attached to the corresponding original ballots for the Board to verify at its next scheduled meeting. o Enter the time of completion and their signatures to the ballot duplication log. o Provide the completed duplication log and the ballots to the director. • The director must ensure that the ballots are kept in a secured container until the next absentee board meeting. • The board must review each duplicated ballot at its next scheduled board meeting prior to approval of the ballots. It is a best practice to have a duplication team present at every meeting to duplicate any damaged ballots that are identified during the board meeting. Duplicating ballots at the board meeting when the ballot envelope was approved reduces the likelihood of mistakes. Control of Board Meeting The county board of elections is responsible for maintaining control at its absentee board meetings. The county board must ensure that the public receives proper notice of the board meeting and is given the opportunity to attend. However, because state law vests members of the county board with the duty to approve absentee ballots and the board’s decision is final, the county board should not permit public comment while absentee envelopes and the accompanying photo ID documentation are being adjudicated, or while ballots are being duplicated, sorted, or tabulated. The board also should not permit questions from the public as the board approves absentee envelopes and photo ID documentation, to avoid disruption of proceedings which must be carefully managed, the potential for outside influence of the board’s decisions, and the potential for nonuniform review of ballots. G.S. 163-234 is very clear that others shall be permitted to attend the meeting during which absentee ballots are counted and observe the process, but may not interfere with the election officials in the discharge of their duties.27 It is recommended that the board chair explain the process at the beginning of the board meeting and state that public comment is not permitted during the approval and scanning of absentee ballots. The board may, but is not required to, designate a separate part of the meeting for public comment. At the end of each board meeting, the goal is total reconciliation of all envelopes, photo ID documentation, and ballots. To do that requires careful control of every document in the room. It 27 G.S. § 163-234(2): “Any elector of the county shall be permitted to attend the meeting and allowed to observe the counting process, provided the elector shall not in any manner interfere with the election officials in the discharge of their duties.” 13 also requires ensuring that the board members focus on the task at hand and that the public remains in an observer rather than a participant role. Envelopes, photo ID documentation, and ballots must not be allowed to be removed from assigned areas. A voter’s photo ID documentation must also be retained with the voter’s corresponding envelope. The reconciliation process shall ensure the number of ballot envelopes in each stack is tracked, and that the number of envelopes approved at the meeting is equal the number of ballots entered into the tabulator. The county board shall record the count on the tabulator at the start and end of each absentee meeting. A sample reconciliation log that you may use for process is available here. Public Records Requests for Envelopes Some county boards may have received public records requests for absentee ballot return envelopes. Ballot return envelopes are public records under North Carolina’s Public Records Act, with exceptions for voter signatures and CIV number.28 Public records requests should not be fulfilled during a board meeting, but must be fulfilled as promptly as possible. Photo ID photocopies and Photo ID Exception Forms are technically separate documents from absentee ballot envelopes, so each are addressed separately below, even though these are retained with the envelopes. Photo ID photocopies are confidential and should never be provided, and Photo ID Exception Forms may need to be redacted due to confidential information included on the forms.29 Providing Copies of Envelopes Prior to providing a copy of the envelope to the requestor, the voter signature and CIV number must be redacted, as the number links the envelope to a particular voter's ballot. Witness or assistant information may not be redacted. To redact the voter signature and CIV number, you may copy the envelope, mark through the confidential information on the copy, and then copy it again. Some counties have used removable tape or a cardboard or other thick paper cutout to cover the confidential information when making a copy. Digital copies may also be provided using a template redaction tool in a PDF editing program like Adobe. Viewing Envelopes Unredacted envelopes may be viewed by the public in your office, though no copy, photo, or tracing may be made. A county board must ensure that the requestor is monitored while 28 G.S. §§ 132-1.2(4), 163-82.10(a), 163-165.1(e). See also Numbered Memo 2016-25 and Numbered Memo 2022-01. 29 G.S. § 163-82.10(a1), 163-233(a). 14 reviewing the envelopes in the office to ensure the voter’s signature is not retained. Absentee ballot return envelopes contain an identifier that is linked to the ballot, so this identifier must also be redacted from public view to protect the secrecy of the ballot. Photo ID Documentation Photo ID documentation must be retained with the envelope because it is reviewed as part of the absentee application. For this reason, the photocopy of photo ID or Photo ID Exception Form must be retained for as long as the county retains that voter’s corresponding absentee envelope.30 As noted above, the photocopy of a voter’s photo ID is not a public record, and therefore a county board should not provide a copy of the photocopy of photo ID or allow viewing of the photocopy of photo ID in response to a public records request. The photocopy of photo ID must be retained with the voter’s corresponding envelope through at least the end of canvass and the certification of all elections in the county. After that time, for efficiency in responding to public records requests and to reduce the likelihood of a mistaken disclosure, a county board can separate the photocopy of photo ID from the corresponding envelopes and securely store them in a separate container—so long as the photocopies of photo ID are still stored in the same secure location as the envelopes. Unlike the photocopy of photo ID, a Photo ID Exception Form is a public record. If a public records request seeks copies or viewing of Photo ID Exception Forms, the county board will need to redact any confidential information from the Form before allowing the requestor to view the form or receive a copy. Finally, if allowing a requestor to review an envelope in person and the photo ID documentation has not been separated from the envelope, a county board should first separate the photocopies of photo ID from their respective envelopes and redact confidential information on Photo ID Exception Forms before allowing the public to review the envelopes. 30 This period is at least 22 months for primaries and elections involving a contest for federal office, 52 U.S.C. § 20701, and at least one year for primaries and elections not involving a contest for federal office, G.S. § 163-233(c). 1 Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or(866) 522-4723 Fax:(919) 715-0135 Numbered Memo 2022-15 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Postmark Requirement for Mailed Civilian Absentee Ballots DATE: November 7, 2022 The purpose of this numbered memo is to identify the different ways that a “postmark” may appear on an absentee ballot container-return envelope, to help guide the process of determining whether a civilian absentee ballot that is received after Election Day may be approved.1 Postmark Requirement Under N.C.G.S. § 163-231(b)(2)b, civilian absentee ballots that arrive at the county board office after Election Day are timely, if [t]he ballots . . . are postmarked and that postmark is dated on or before the day of the statewide primary or general election or county bond election and are received by the county board of elections not later than three days after the election by 5:00 p.m.2 The postmark requirement for civilian ballots received after Election Day is in place to ensure that votes transmitted by mail were cast on or before Election Day. (There is no postmark requirement for military or overseas citizen ballots.3) The United States Postal Service (USPS) utilizes different postmarks to signify the location and date the USPS accepted custody of a mailpiece, and to indicate that the postage on the mailpiece has been used. (Accordingly, applying a postmark is sometimes referred to as “cancelling” the 1 N.C.G.S. § 163-231(b)(2)b. 2 If the third day after Election Day is a holiday—as it is this year—the receipt deadline moves to the next business day, which is Monday, November 14 this year. See N.C.G.S. § 103-5(a). 3 N.C.G.S. § 163-258.12(b). Military-overseas (or UOCAVA) ballots that are mailed must be received by 5:00 p.m. the day before county canvass. N.C.G.S. § 163-258.12(a). 2 postage on a mailpiece.4) However, USPS does not always affix a postmark to a ballot return envelope5 and sometimes postmarks are illegible. Nonetheless, under North Carolina law, a civilian absentee ballot that is received after Election Day and before the receipt deadline may be counted only if it contains a postmark and the county board can discern that the date on that postmark is Election Day or earlier. For illustrative purposes, Attachment A contains images showing the various types of postmarks that USPS may affix to postage on an envelope. This material was provided by the USPS counsel’s office. Please take note of the following: •All included postmark examples are valid. Every example, except for Item 12, is a machine-generated postmark, displaying in text the location and date of cancellation of postage. Item 12 shows a manually applied, or hand-stamped postmark. •Sometimes the postage on an envelope will include a date as well. That may also count as a valid postmark, but only in the examples of Items 4 and 7. In those examples, the postage is applied at a USPS retail counter and contains the date of receipt by USPS. So even if there is no separate machine-generated or hand-stamped postmark, the date appearing in one of these types of postage will still count as a valid postmark. On the other hand, the postage in Items 3 and 5 is not applied at a USPS retail counter but is instead applied by a business or other postal consumer, often using a private postage meter. Accordingly, the date in the postage in Items 3 and 5 cannot be used, by itself, as a postmark. You would need to have a traditional hand-stamped or machine-generated postmark, as well, for the ballot to count. Because the examples in Items 3 and 5 have both the postage and the machine-generated postmark, they are examples of acceptable postmarks. 4 See U.S. Postal Service, Handbook PO-408 – Area Mail Processing Guidelines, § 1-1.3 Postmarks, available at https://about.usps.com/handbooks/po408/ch1 003.htm. 5 See U.S. Postal Service, Office of Inspector General, Processing Readiness of Election and Political Mail During the 2020 General Elections Report Number 20-225-R20, 3 (“. . . we found that ballots are not always being postmarked as required and it is a challenge for the Postal Service to ensure full compli- ance. Some ballots did not receive a postmark due to: (1) envelopes sticking together when processed on a machine; (2) manual mail processing; or (3) personnel unaware that all return ballots, even those in pre- paid reply envelopes, need to receive a postmark.”). Item Postage Description Cancellation type Cancellation picture Application method 6 SSK Stamp Alternate Cancellation 8 PPI Alternate Cancellation 9 PERMIT Alternate Cancellation AFSM Flats Cancellation Mark Wavy bar 7 PVI (non-RSS) Alternate Cancellation (Note - the date on the PVI label is also a valid indication of USPS acceptance) 10 Alternate Postage / Picture permits Alternate Cancellation 11 12 Hand-Stamped Postmark Circular Date and Origin Manual Letter 4 RSS Alternate Cancellation (Note - the date on the RSS label is also a valid indication of USPS acceptance) 5 SSK Label Alternate Cancellation 2 Meter Marks without IBI Wavy bar 3 Meter Marks with IBI Alternate Cancellation Automated Letter MPE Automated Letter MPE Automated Letter MPE Automated Flats MPE Automated Letter MPE Automated Letter MPE Automated Letter MPE Automated Letter MPE Automated Letter MPE Automated Letter MPE For illustrative purposes only. Contains sample postage and postmarks. Wavy barStamps1 Automated Letter MPE ATTACHMENT A 1 Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax:(919) 715-0135 Numbered Memo 2022-11 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Court Order Regarding Assistance for Absentee Voters with Disabilities DATE: August 29, 2022 On July 11, 2022, a federal court issued an order invalidating state laws preventing certain individuals from helping disabled voters request, complete, and submit absentee ballots.1 The court determined that these laws, as applied to disabled voters, violate federal law. Specifically, Section 208 of the Voting Rights Act permits any voter who is blind, disabled, or unable to read or write to request “assistance by a person of the voter’s choice, other than the voter’s employer or agent of that employer or officer or agent of the voter’s union.”2 This numbered memo provides guidance for county boards to comply with the court order. It supersedes Numbered Memo 2020-15 and any other prior memo to the extent they provide guidance regarding who may assist an absentee voter who needs assistance due to a disability. Assistance for Absentee Voters with Disabilities Voters who need assistance voting absentee by mail due to their disability may now receive assistance from any person they choose. This could be a friend, relative, or any other person the voter chooses to assist them. A candidate may not witness the ballot of a voter unless the candidate is the voter’s near relative.3 Voters in Covered Facilities A voter who needs assistance due to a disability and is a patient or resident in a covered facility may receive assistance from any person they choose. They may receive assistance from the staff 1 Disability Rights NC v. State Board of Elections, 5:21-CV-361-BO, Order on Motion for Summary Judgment (E.D.N.C. July 11, 2022). The specific laws that were invalidated with respect to assisting disabled voters are N.C.G.S. §§ 163-226.3, -230.1, -230.2, -230.3, and -231(b)(1). 2 52 U.S.C. § 10508. 3 However, a voter living in covered care facilities may receive assistance from a candidate if the voter needs assistance due to the voter’s disability. 2 of the hospital, clinic, nursing home, or rest home where they are a patient or resident. There is no requirement that the facility staff complete a log when they assist a voter, although the facility may choose to do so. Facility staff are not required to assist a voter if they do not wish to do so or are instructed not to do so by the facility. Facility staff may continue to rely on multipartisan assistance team (MAT) members to assist their residents, if that is the facility’s preference. Under the court’s order, a voter in a covered facility who needs assistance due to a disability may also receive assistance from an elected official, political party officeholder, or candidate. They may still request and use a MAT, but they are not required to do so. A voter who is a patient or resident in a covered facility but who does not need assistance due to a disability may request assistance from a near relative, legal guardian, or a MAT. Recall, the court’s order changes the rules only for voters who need assistance due to a disability. If a near relative, legal guardian, or MAT is not available within seven calendar days of such a voter’s request, the voter may get assistance from anyone EXCEPT: • An owner, manager, director, or employee of the hospital, clinic, nursing home, or rest home where the voter is a patient or a resident; • An elected official, candidate, or officeholder in a political party; or • A campaign manager or treasurer for a candidate or political party.4 Assistance with Absentee Voting Absentee Requests Upon request of a voter who needs assistance due to a disability, any person may assist the voter by: • Completing the absentee request form, according to the voter’s instruction; • Making the absentee request on the voter’s behalf, according to the voter’s instruction; and • Returning the request form, according to the voter’s instruction. The assistant may return the request form by mail or in person, or through the State Board’s online portal. 4 N.C.G.S. § 163-226.3(a)(4). 3 The assistant must complete Section 9 of the request form, including providing their name and address. The form is invalid if the assistant does not provide information such that the assistant’s name and address can be determined.5 If the assistant is making the request for the voter (i.e., not just helping to fill out the form, but making the request in lieu of the voter), they must also complete and sign Section 8. As long as the assistant’s address is listed in either Section 8 or Section 9, it is not required to be listed twice since the assistant’s address can be determined if it is listed once. Absentee Container-Return Envelopes Upon request of a voter who needs assistance due to a disability, any person, including a MAT member, may assist the voter by: • Completing the absentee container-return envelope, according to the voter’s instruction; • Marking the ballot, according to the voter’s instruction; • Signing the envelope if, due a disability, the voter is unable to sign or make their mark; and • Returning the ballot, according to the voter’s instruction. The assistant may return the ballot by mail or in person to the county board of elections office or a one-stop site in the county. The assistant must complete the Voter Assistant Certification section of the envelope. If a voter is physically unable to sign or make their mark due to disability, the person assisting with the ballot should write in the signature line, “Disabled - cannot sign” and must complete the Voter Assistant Certification located on the back of the ballot return envelope. The assistant may return a cure certification for a voter who needs assistance due to a disability. See Numbered Memo 2021-03 for information about the cure process for deficient absentee container-return envelopes. County boards shall keep a log for cure certifications that are hand-delivered to the county board office. Absence for Sickness or Physical Disability If a voter expects to be unable to go to the voting place to vote in person on Election Day because of that voter’s sickness or other physical disability, any of the following people may 5 N.C.G.S. § 163-230.2(e1) states: “If a voter is in need of assistance completing the written request form due to blindness, disability, or inability to read or write and there is not a near relative or legal guardian available to assist that voter, the voter may request some other person to give assistance, notwithstanding any other provision of this section. If another person gives assistance in completing the written request form, that person’s name and address shall be disclosed on the written request form in addition to the information listed in subsection (a) of this section.” (Emphasis added.) 4 make the request for absentee ballots in person to the board of elections of the county in which the voter is registered after 5:00 p.m. on the Tuesday before the election but not later than 5:00 p.m. on the day before the election: • The voter; • The voter’s near relative or legal guardian; or • Any other person, if the voter needs assistance due to a disability. Upon receipt of a completed request form, the county board shall personally deliver the application and ballots to the voter, near relative, legal guardian, or assistant.6 Assistance with In-Person Voting The requirements for who may assist a voter voting in person have not changed. A disabled or illiterate voter who is voting in person may receive assistance from a person of the voter’s choice, other than the voter’s employer or agent of that employer or an officer or agent of the voter’s union.7 There is no limit on how many voters an assistant may assist, if properly requested. Answers to Frequently Asked Questions Q1: May a voter who needs assistance due to a disability receive assistance from a candidate? A: It depends. A voter who needs assistance due to a disability may receive assistance from a candidate if the voter is a patient or resident of covered facility. However, the court order did not enjoin G.S. § 163-237(c), which prevents a candidate from serving as a witness otherwise. Therefore, a voter who is not a patient or resident of a covered facility is prohibited from having a candidate serve as a witness unless the candidate is their near relative. Q2: What is the definition of a disability? A: Under the Americans with Disabilities Act, a disability is a physical or mental impairment that causes someone to be substantially limited in a major life activity.8 This means someone who has substantial limitations on the ability to perform everyday 6 N.C.G.S. § 163-230.1(b). 7 N.C.G.S. § 163-166.8(a)(2). 8 42 U.S.C. § 12102(1)(A). 5 things—such as seeing, hearing, walking, standing, speaking, reading, concentrating, thinking, and writing—as compared to most people in the general population.9 Most people living in nursing homes and other congregate care settings need help with at least one aspect of daily living and will generally be considered to have a disability. Federal law states that public entities are not to engage in demanding tests to determine an individual’s level of disability.10 For the purposes of seeking assistance with absentee voting, however, the disability should substantially impair an activity that pertains to the absentee voting process.11 All of the examples of everyday activities listed above could pertain to some aspect of the absentee voting process. Q3: Is advanced age a reason for assistance (for example, curbside is open to those who due to age or disability are unable to enter the enclosure)? A: No, age alone is not a reason the voter may receive assistance under the court order. The voter must need assistance due to a disability, but a disability may be age-related. See the answer to Question 2 for the definition of a disability. Q4: How do we know if someone has a disability? A: See the answer to Question 2 regarding the definition of a disability. The voter’s disability is confirmed through the attestations on the request form and the absentee envelope. These contain language requiring the assistant to attest that the voter asked for help due to the voter’s disability. It is not for the county board to inquire into the specifics of a voter’s attested-to disability that renders the voter in need of assistance. If the assistance portion of an otherwise valid request form or envelope is properly completed, the county board shall approve it. If the county board has reason to believe that non-disabled voters are receiving assistance to which they are not entitled, or that disabled voters’ wishes are not being respected, they shall forward such evidence the State Board’s Investigations Division. 9 42 U.S.C. § 12102(2)(A); 28 C.F.R. § 35.108(c)(1), (d)(1)(v). 10 28 C.F.R. § 35.101; see 28 C.F.R. §§ 35.108(a)(2)(i), (c)(2)(i)-(ii), (d)(1)(i)-(viii), . 11 The Voting Rights Act permits a voter to get assistance from a person of their choice if that voter “requires assistance to vote by reason of blindness, disability, or inability to read or write[.]” 52 U.S.C. § 10508 (emphasis added). 6 Q5: What if a disabled voter in a covered facility wishes to get assistance from and use as witnesses two staff members in the facility, but the voter’s near relative is concerned about undue influence and has contacted the county board to complain? A: A voter who needs assistance due to a disability has the right to select an assistant of their choice under the court order (and federal law). If a family member is concerned that someone has improperly influenced a voter, the county board of elections should refer them to the State Board’s Investigations Division. It is a crime to interfere with a voter when marking their ballot, or to defraud a blind or illiterate voter from marking the ballot selections of their choosing.12 Q6: Is the assistant required to respect the secrecy of the voter’s ballot? Yes. Any person who assists a voter must keep the voter’s ballot choices confidential. It is a crime for any person who has access to another person’s ballot to reveal how the person voted.13 Q7: Are there any changes to the requirement that an absentee voter have two witnesses or a notary? A: No. An absentee ballot must still be witnessed by two people or one notary public. The witnesses must be at least 18 years old. Q8: What is the definition of a covered facility? A: A “covered facility” is any facility that provides residential or in-patient healthcare in the State that is licensed or operated pursuant to Chapter 122C, Chapter 131D, or Chapter 131E of the General Statutes, including, for example, a hospital, clinic, nursing home, or adult care home; or by the federal government or an Indian tribe.14 12 N.C.G.S. §§ 163-273(a)(4) and 163-274(a)(13). 13 N.C.G.S. § 163-274(b). 14 08 NCAC 16 .0101(b). Mailing Address: P.O. Box 27255, Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2021-07 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Deficiencies in Notary Portion of Absentee Application and Certificate DATE: August 31, 2021 This numbered memo explains how county boards of elections should treat technical deficiencies in the execution of the notary portion of an absentee container return envelope (officially called the absentee ballot application and certificate). It replaces Numbered Memo 2020-07. The guidance balances the goal of uniformly applying the law while seeking to not punish the voter for a notary’s inadvertent mistake or error. G.S. § 163-231(a) requires a voter to mark the absentee by-mail ballot in the presence of two witnesses or one notary public, who must sign the container return envelope as witness(es). If witnessed by a notary, the statute requires the notary public to affix their valid notarial seal to the envelope and include the phrase “Notary Public” below his or her signature. State Board of Elections staff consulted with the North Carolina Department of the Secretary of State’s Electronic Notarization and Notary Enforcement Division regarding the validity of an incomplete notarization on the container return envelope. While the Secretary of State’s Office cannot adjudicate an absentee ballot, they provided useful information on how the notary statutes work in conjunction with our election statutes, including that there is a presumption of regularity in the absence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of the notary statutes by the notary.1 The Secretary of State’s Office has requested that notarial errors on the absentee ballot container-return envelope be reported to them. Certain technical errors in executing the notary’s portion of the container return envelope are not considered deficiencies. Other errors are considered deficiencies that require the ballot to be spoiled and reissued in accordance with Section 2.2 of Numbered Memo 2021-03. 1 G.S. 10B-99(a) (relevant portion): “In the absence of evidence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of this Article by the notary, the courts shall grant a presumption of regularity to notarial acts so that those acts may be upheld, provided there has been substantial compliance with the law.” 2 1. Technical Errors That Are Not Considered Deficiencies The following technical errors do not affect the sufficiency, validity, or enforceability of the notarial certificate itself or the underlying document and are not considered deficiencies: • Notary leaves off the name of the voter or misspells the voter’s name; • Notary does not write the expiration date of their commission; • Notary does not include the name of the county or State; • The notary seal is hard to read; • The notary does not include the date the notary witnessed the marking of the ballot; or • A combination of the above.2 2. Technical Errors That Are Considered Deficiencies The following errors in the notarial certificate are considered deficiencies that cannot be cured by certification, and require that the ballot be spoiled and reissued in accordance with Numbered Memo 2021-03: • The notary’s signature is missing. Pursuant to G.S. § 163-231(a)(5), the notary’s signature is required. • The notarial seal is missing altogether or contains missing information. G.S. § 163-231(a) requires the notary to affix a valid notarial seal to the envelope. 2 G.S. § 10B-68 (relevant portion): (a) Technical defects, errors, or omissions in a notarial certificate shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related instrument or document. […] (c) As used in this section, a technical defect includes those cured under G.S. 10B-37(f) and G.S. 10B- 67. Other technical defects include, but are not limited to, the absence of the legible appearance of the notary's name exactly as shown on the notary's commission as required in G.S. 10B-20(b), the affixation of the notary's seal near the signature of the principal or subscribing witness rather than near the notary's signature, minor typographical mistakes in the spelling of the principal's name, the failure to acknowledge the principal's name exactly as signed by including or omitting initials, or the failure to specify the principal's title or office, if any.” G.S. 10B-67: “An erroneous statement of the date that the notary's commission expires shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related record if the notary is, in fact, lawfully commissioned at the time of the notarial act. This section applies to notarial acts whenever performed.” G.S. 10B-37(f): “The failure of a notarial seal to comply with the requirements of this section shall not affect the sufficiency, validity, or enforceability of the notarial certificate, but shall constitute a violation of the notary's duties.” 3 3. Fraud Indicators If there are indications of fraud on the absentee envelope, whether they relate to the notary section or other sections of the envelope, this information should be sent to the State Board’s Investigations Division. Examples of fraud indicators include: • A notary or witness completed multiple applications containing technical errors; • The handwriting for the voter’s signature and witness’s signature appears identical; • The envelope appears to have been tampered with; and • There are stray or suspicious markings on the envelope. Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Numbered Memo 2020-29 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Witness or Assistant Address Issues on the Absentee Container-Return Envelope DATE: October 4, 2020 This memo is issued to provide uniform guidance and further clarification on how to determine if the correct address can be identified if the witness’s or assistant’s address on an absentee container- return envelope is incomplete. If No Address If a witness or assistant does not print their address, the envelope is deficient. Missing ZIP Code or City As previously explained in Footnote 3 of Numbered Memo 2020-19, failure to list a witness’s ZIP code does not require a cure. G.S. § 163-231(a)(5). A witness or assistant’s address does not have to be a residential address; it may be a post office box or other mailing address. Additionally, if the address is missing a city or state, but the county board of elections can determine the correct address, the failure to list that information also does not invalidate the container-return envelope. For example, if a witness lists “Raleigh 27603” you can determine the state is NC, or if a witness lists “333 North Main Street, 27701” you can determine that the city/state is Durham, NC. If City and ZIP Code Missing If both the city and ZIP code are missing, staff will need to determine whether the correct address can be identified. If the correct address cannot be identified, the envelope is deficient. If one of the following criteria are met, you can determine the address and the envelope is not deficient: • The witness or assistant’s address is the same as the voter’s address – either because the witness or assistant wrote “same as above” or something similar on the address line or because the partial address provided matches the address of the voter – or it is on the same street as the voter’s address; • The witness’s or assistant’s name and partial address match that of a registered voter in your county in SEIMS; or 2 • The street address is a valid address in your county. You may confirm this using a county GIS website1 or office, or a similar tool. Do not use an online directions tool such as Google Maps, which does not identify whether an address is valid. If there is only a street address and none of the above criteria are met, the county board cannot determine the address and the envelope is deficient. If a P.O. box is listed but the address provided does not include a city or ZIP code, it is not possible to determine the address and the envelope is deficient. 1 https://www.lib.ncsu.edu/gis/counties.html P.O. Box 27255 Raleigh, NC 27611 (866) 522-4723 www.ncsbe.gov Numbered Memo 2023-03 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Photo ID and In-Person Voting DATE: September 14, 2023 This numbered memo provides guidance related to photo identification (photo ID) requirements for in-person voting starting with the municipal elections in 2023. General Overview Election officials, staff, and county board of elections members are encouraged to carefully review the two laws that primarily govern the in-person photo ID requirements and processes: N.C.G.S. § 163-166.16 and 08 NCAC 17 .0101. As a general overview of the in-person photo ID process, when a voter enters the voting place to vote in person during early voting or on Election Day, the voter will be asked to show a photo ID during the check-in process.1 The photo ID shown by the voter must meet certain legal requirements:2 (1) the ID must be an acceptable type of photo ID; (2) the ID must meet the expiration requirements, if applicable; (3) the photo on the ID must reasonably resemble the person showing the ID; and (4) the name on the ID must be the same as or substantially equivalent to the voter’s name in their registration record. If a voter’s photo ID meets these requirements, then the voter proceeds with the check-in process and will vote with a regular ballot, unless there is some other reason under the election laws for them to vote with a provisional ballot. 1 N.C.G.S. § 163-166.7(a). 2 If the check-in official believes that a voter’s photo ID does not meet these requirements, then the check-in official will ask the voter to provide a different photo ID. If the voter cannot do so, then the check-in official will initiate a photo ID challenge, which is then immediately heard by the judges of election at the voting place. If at least one judge determines the photo ID meets the legal requirements, then the voter proceeds with the check-in process and will vote with a regular ballot unless there is some other reason under the election laws for them to vote with a provisional ballot. If the judges unanimously agree the voter’s photo ID does not meet the legal requirements, the voter will still be permitted to vote and will vote with a provisional ballot, as explained below. Voters who do not present acceptable photo ID may choose to leave the voting enclosure to retrieve an acceptable photo ID and present to vote again, as long as they have not yet received a ballot.3 Some voters may prefer this option, especially during the early voting period, when it is easier for the voter to obtain an acceptable photo ID in time to vote with that ID, including by obtaining a free voter photo ID from the county board. Voting Without Acceptable Photo ID All voters are allowed to vote with or without a photo ID.4 There are two options for a voter who does not present acceptable photo ID to cast a ballot. (1) The voter may complete a Photo ID Exception Form, claiming an exception to the photo ID requirement, and then vote a provisional ballot. A county board is required to approve and count the provisional ballot unless the county board unanimously finds that the form was falsely completed and puts that finding in a written decision. Before the county board makes a final finding of falsity, it must give the voter notice and an opportunity to be heard on the matter. (2) The voter may vote a provisional ballot and then bring an acceptable photo ID to the county board office before the close of business on the day before county canvass. When a voter chooses this option, their photo ID will be evaluated at the county board office in the same manner as it would have been evaluated at the voting place. 3 See 08 NCAC 10B .0104 (voter not permitted to return to the voting enclosure once they receive their ballot). 4 N.C.G.S. § 163-166.16(c)–(d); N.C. Sess. Laws 2018-144, sec. 1.5(a)(10). 3 Frequently Asked Questions About Photo ID and In-Person Voting Acceptable Forms of Photo ID The types of photo ID that are acceptable for voting purposes are listed in N.C.G.S. § 163-166.16(a) and 08 NCAC 17 .0101(a)(1). 1 Is a photocopy of a voter’s photo ID, or a picture of their photo ID stored electronically on a mobile device, an acceptable form of photo ID? No. Under N.C.G.S. § 163-166.16, a voter presenting to vote in person must “produce” one of the listed “forms of identification.” An image of a photo ID, either as a photocopy or a photo on a mobile device, is not one of the permitted forms of photo ID when voting in person. 2 Are learner’s permits and provisional licenses acceptable forms of Photo ID? Yes. A provisional license is a license, and therefore is acceptable photo ID, subject to the expiration requirements. Additionally, a learner’s permit falls within the definition of a “license” in N.C.G.S. § 20-4.01(17), and is therefore a “North Carolina drivers license” under the photo ID law for voting,5 subject to the expiration requirements. 3 Is a suspended or revoked driver’s license an acceptable Photo ID? No. If an election official becomes aware that a voter is presenting a suspended or revoked license, the official should inform the voter that such an ID is no longer “valid,” as required by the photo ID law for voting.6 In practice, however, election officials are typically not going to know whether a person’s license has been suspended or revoked, since that information does not appear on the face of an ID, and should not do independent research to determine the license status. Without having a reason to believe a voter’s license has been revoked or suspended, election officials must assume that the license remains valid. 4 When a student or government-employee ID card is approved by the State Board, does that mean that only those ID cards that are identical to the one submitted with the institution’s application for approval can be used for voting? No. Once an institution’s ID has been approved, that institution’s ID is acceptable, including ID cards that were issued before the ID was approved, even if those previously issued ID cards 5 N.C.G.S. § 163-166.16(a). 6 N.C.G.S. § 163-166.16(a)(1). 4 differ from the latest version. Both N.C.G.S. §§ 163-166.17 and 163-166.18 permit the State Board to approve “the use of . . . cards issued by” an institution if “cards issued during the approval period” comply with the requirements outlined in the statute, including the requirement that the card contain an expiration date. In short, the legislature’s intent was to permit an institution’s ID card to be used for voting if that institution commits to issuing compliant cards during the approval period. The law is not meant to permit only those cards issued during the approval period to be accepted for voting, thus requiring an institution to replace the already- issued ID cards in circulation, in order for their students or employees to be able to use their IDs to vote. Instead, once an institution’s ID meets the requirement with respect to the IDs that are to be issued during the approval period, the institution’s ID, including cards already issued, are acceptable. However, to the extent the institution has gained State Board approval of only a special-issued ID (i.e., a special “voter ID” card, not the regular ID card), only that ID, and any past version of that special-issued ID, would be acceptable for voting purposes. There is only one approved student or government employee ID card that falls into this situation for the 2023 municipal elections: Duke University’s student voter ID card. 5 If a voter believes their photo ID does not reflect their current appearance, should they obtain a new ID with a new photo on the ID? The voter is not required to obtain a new photo ID when their appearance changes. Importantly, the voter’s appearance at the voting place is not required to be a perfect match to the photo on their ID. Election officials evaluating the photo on the ID must take into account the many reasons why a voter’s appearance may have changed.7 Even with these considerations in mind, a voter concerned about a comparison of their photo ID to their current appearance could choose to obtain a new photo ID, if permitted by the agency that issued their ID. The voter could also obtain and use a different type of acceptable photo ID from the one they already possess. For example, a voter with a driver license could obtain a Voter Photo ID Card from their county board of elections and present either ID at the voting place when voting. 7 08 NCAC 17 .0101(a)(2). 5 6 Will a photo ID used for voting also satisfy a requirement for some voters to show “HAVA ID”? Can a person’s photo ID for voting also be used to prove residency for same-day registration at an early voting site? In each situation, it depends on the ID provided. Most voters will use an unexpired driver’s license as their photo ID when voting, and this would satisfy both HAVA and the photo ID requirements. But sometimes an acceptable photo ID for voting would not satisfy HAVA ID, due to the ID’s expiration. A voter’s “HAVA ID” that is required to be presented by some voters, pursuant to state law and the Help America Vote Act of 2002 (HAVA), must be “current.”8 Under our state’s photo ID law for voting, however, some IDs that can be used for photo ID purposes do not have to be current. Instead, some photo IDs can be expired for up to a year, or if the voter is over 65 then the ID can be used for photo ID purposes if it was unexpired when the voter turned 65. And some types of photo IDs can always be expired, such as military and veteran ID cards.9 So while it is unlikely that a voter’s photo ID will not be acceptable as HAVA ID, it is possible, where the ID is expired. A same-day registrant who presents an unexpired driver’s license with their current address can use that ID for both same-day registration and the photo ID requirement for voting. But many documents used to establish residency for same-day registration are not acceptable photo IDs for voting—including utility bills, bank statements, paychecks, and government documents that contain no photo. See Numbered Memo 2016-15 for further guidance on this point. Additionally, a photo ID for voting does not have to have the voter’s current address. So it is possible that an acceptable same-day registration document will not satisfy the photo ID requirement, and vice versa. 8 N.C.G.S. § 163-166.12(a)(1); 52 U.S.C. § 21083(b)(2)(A)(i)(I). 9 N.C.G.S. § 163-166.16(a). 6 Evaluation of an In-Person Voter’s Photo ID The process for evaluating a voter’s photo ID when they present to vote at an early voting site or on Election Day is guided by N.C.G.S. § 163-166.16 and 08 NCAC 17 .0101. 7 What can an election official consider when deciding whether the person showing a photo ID bears a reasonable resemblance to the photo on the ID? The election official is required to determine only whether the photo on the ID bears a “reasonable resemblance” to the person presenting the photo ID.10 By law, the election official making this determination must do so “based on the totality of the circumstances, bearing in mind that there are many reasons that a person’s appearance could change,” and the election official must keep in mind “the purpose of the photo identification requirement, which is to confirm the person presenting to vote is the registered voter on the voter registration records.”11 Specifically, the requirement to evaluate the photo on the ID is meant to ensure that the ID belongs to the person showing it when they present to vote. Election officials must take into account that a voter’s appearance may have changed since their ID was issued, and this can be due to changes in: • Weight; • Hair features and styling, including changes in length, color, hairline, or use of a wig or other hairpiece; • Facial hair; • Complexion or skin tone; • Cosmetics, including piercings or tattooing; and • Apparel, including the presence or absence of eyeglasses or contact lenses.12 Election officials must also take into account other factors that can affect a voter’s appearance in comparison to the photo on the photo ID, such as the effects of aging and the effects of medical conditions or medical treatment. 10 N.C.G.S. § 163-166.16(b). 11 08 NCAC 17 .0101(a)(2). 12 Election officials are not allowed to require a voter to remove apparel for the purposes of determining reasonable resemblance. If the face of the person presenting to vote is covered enough that the election official cannot determine reasonable resemblance, then the election official must offer the voter the two options to vote by provisional ballot. 08 NCAC 17 .0101(b). 7 A person’s changed appearance, no matter the reason for that change, cannot prevent a voter from voting. If the election official can determine it is the same person when comparing the person’s face in the photo to the face of the person standing before them, then the election official must permit the voter to proceed and vote a regular ballot. 8 Can an election official take into account other information about the person presenting to vote when making the reasonable resemblance determination or name determination? Election officials should not factor in outside information to decide that the voter does not reasonably resemble the person in the photo on the ID or that their name is not the same as or substantially equivalent to their name in their registration record. Instead, a determination that the photo ID does not meet the photo or name requirements must be based solely on a review of the photo and name on the ID. On the other hand, if an election official is unable to make a determination that the photo ID meets the photo and name requirements after reviewing the ID, the official can turn to other evidence to confirm the photo ID is the person’s ID and that the name on the ID is that of a registered voter. For example, if a voter presents to vote at the voting place and they reasonably resemble the photo on the ID, the fact that their gender presentation does not match the gender or sex listed on their photo ID or voter registration record cannot be used to reject the photo ID. A determination of no resemblance, under the law, must be based on the comparison of the voter to the photo on the ID, bearing in mind the many reasons a person’s appearance could change, and should not be influenced by extraneous information.13 On the other hand, if a voter presents to vote at the voting place and part of their name on their photo ID is not readable due to wear and tear on the ID, then it would be permissible for the election official to use other evidence voluntarily provided by the voter, such as a credit card, library card, or other documentation they may have with them, to confirm the voter’s name and match it with their registration record. Such documentation cannot replace the need to present valid photo ID, but it could support the determination of a match between the photo ID and the voter record. 9 Can a voter be challenged by someone other than an election official for photo ID-related reasons? On the day of a primary or election, any other registered voter of the county may challenge a voter on the grounds that the “registered voter does not present photo identification in 13 N.C.G.S. § 163-166.16(b); 08 NCAC 17 .0101(a)(2). 8 accordance with G.S. 163-166.16.”14 A registered voter who resides in the same precinct as a person voting early may challenge an early voter for the same reason, either while the person is early voting or at the county board office on between noon and 5 p.m. on election day.15, 16 Accordingly, a defect in the manner that a voter presents ID can be challenged. For example, if an election official permits a voter to check in and receive a regular ballot without the voter presenting photo ID at all, that voter may be challenged by another registered voter. Likewise, if a voter offers an ID that is plainly not an acceptable form of photo ID—a retail store membership card, for example—an observer who perceives that failure to present an acceptable ID could challenge the voter.17 In the event such a challenge is made, the challenger is not permitted to handle or review the voter’s photo ID. That duty is reserved for the judges of election hearing the challenge. Apart from issues concerning the act of presenting the ID, however, challenges to the photo ID process by other voters are not permitted. By law, election officials at the voting place (i.e., check-in officials) are the persons tasked with entering a challenge when they determine a voter’s photo ID, upon official review, does not meet the legal requirements of a reasonable resemblance or name similarity.18 Additionally, a voter who informs the election officials that they will vote a provisional ballot and later bring their photo ID to the county board office cannot be challenged by a registered voter for a failure to present a photo ID. Such a voter is expressly permitted by law to vote a provisional ballot without showing ID at the voting site, and is therefore not subject to the challenge under N.C.G.S. § 163-87(5). Finally, a challenge cannot be made by any person, election official or otherwise, based on the voter completing a Photo ID Exception Form. In that instance, the voter is claiming an exception from the photo ID requirements and therefore is not required to “present” a photo ID under the law. 14 N.C.G.S. § 163-87(5). 15 N.C.G.S. §§ 163-89(a)–(b), -227.2(i). 16 In a municipal or special district election, any voter who challenges another voter’s right to vote “must reside in such municipality or special district.” N.C.G.S. § 163-289(a). 17 While this type of challenge is theoretically possible, election officials must be careful not to permit persons who are not election officials to be so close to the voter in the voting enclosure that they are able to perceive confidential details on the voter’s photo ID—for example, date of birth, driver’s license number, or passport number. See N.C.G.S. § 132-1.10(b)(5); N.C.G.S. § 163-82.10B. 18 N.C.G.S. § 163-166.16(b); 08 NCAC 17 .0101(d)(3). 9 10 How should elections officials proceed with a hearing when the check-in official challenges a voter’s photo ID for not meeting the photo or name requirements? A photo ID challenge hearing is required when the check-in official determines that the photo on the voter’s photo ID does not reasonably resemble the person showing the ID, that the name on the photo ID is not the same as or substantially equivalent to the voter’s name in their registration record, or both requirements are not met.19 A photo ID challenge proceeds somewhat differently than a challenge entered by a voter pursuant to N.C.G.S. § 163-87. For a photo ID challenge, the check-in official must use the Help Station Referral Form, rather than the challenge form, to note their reason for why the photo ID does not meet these requirements, and then immediately notify the judges of election so that they may conduct the challenge hearing as promptly as possible. When conducting the challenge hearing, the judges of election generally follow the hearing procedures in N.C.G.S. § 163-88. After explaining the photo ID requirements for voting in- person to the voter, the judges of election must then examine the photo ID presented by the voter and apply the same standards as the check-in official as to reasonable resemblance and name similarity. The judges must then record their final decision in writing on the Help Station Referral Form. The judges do not utilize the oath process detailed in N.C.G.S. § 163-88 for other voter challenges because under N.C.G.S. § 163-166.16(b), the judges of election conducting a photo ID challenge are only tasked with the limited determination of whether “the photo identification presented does not bear a reasonable resemblance to that voter.” If at least one judge determines the photo ID meets the legal requirements, then the voter returns to the check-in station, proceeds with the check-in process, and will vote with a regular ballot, unless there is some other reason under the law for them to vote with a provisional ballot. If the judges unanimously agree the voter’s photo ID does not meet the legal requirements, the voter will still be permitted to vote. Rather than vote a challenged ballot pursuant to N.C.G.S. § 163-88.1, the voter will be offered the two options to vote with a provisional ballot in 08 NCAC 17 .0101(e). As an example, if the voter has another acceptable photo ID that is not with them at the voting place, then that voter can vote a provisional ballot and bring that other photo ID to the county board office by the day before canvass. As another example, if the voter’s only photo ID is the ID they have shown at the voting place, then that voter could complete a Photo ID 19 N.C.G.S. § 163-166.16(b); 08 NCAC 17 .0101(d)(3). 10 Exception Form and assert an exception to the photo ID requirement stating why they are unable to present an acceptable photo ID. 11 Who is responsible for the designation of three one-stop officials to serve as “judges of elections” for the purposes of deciding a photo ID-related challenge at a one-stop site? Under 08 NCAC 17 .0101, for the purposes of evaluating a voter’s photo ID during early voting, “judges of election” includes “a group of three one-stop officials designated by the county board to hear a challenge to a voter’s photo identification, not all of whom are affiliated with the same political party.” As with the appointment of judges of elections for voting on Election Day, county board members can designate the one-stop officials who will be tasked with performing this role for photo ID purposes during early voting. The recommended best practice, however, is for the county board to delegate this task to the director. Doing so will allow for more flexibility and timely resolution of situations that may arise if a person so designated is unable to work as scheduled. 12 Who is responsible for reviewing a voter’s photo ID when they bring it to the county board office after voting a provisional ballot with the intent to provide their photo ID later? A voter who brings their photo ID to the county board of elections office will have their ID reviewed for compliance with all legal requirements, just as if they had shown the ID when voting in-person at the voting site.20 Each county director is strongly encouraged to designate at least one staff member to perform this function during the canvass period, and to have that person trained in the same manner as check-in officials for the purposes of reviewing a photo ID. The county director can perform this function as well, if needed. 13 Can a voter obtain a photo ID after they have voted provisionally in person, bring the newly issued photo ID to the county board office before the deadline, and still have their ballot counted? Yes. If the photo ID is an acceptable type of photo ID for voting purposes and meets the photo and name requirements when it is evaluated by the county board, and the voter presents the ID to the county board by the end of business on the day before canvass, the law requires the county 20 08 NCAC 17 .0101(e)(2). 11 board to count that provisional ballot.21 This applies to any acceptable type of photo ID, including a Voter Photo ID Card issued by a county board of elections. The law does not state that a photo ID card must be issued by a certain date for it to be an acceptable form of photo ID. If a voter is voting a provisional ballot during early voting or on election day due to a lack of photo ID at the voting place, they must still be a registered and eligible voter as of election day for their vote to be counted. Obtaining any of the permitted forms of acceptable photo ID after voting does not change the voter’s registration status or eligibility to vote. 14 Can a voter, who voted a provisional ballot because they did not have their photo ID with them when voting, return to the voting place later with their photo ID, have their provisional ballot “spoiled,” and then vote a regular ballot? No. Once a voter has voted a provisional ballot, they cannot have that ballot “spoiled” so that they can then vote a regular ballot.22 If a voter casts a provisional ballot because they did not have their photo ID with them when presenting to vote, their only option to have their ballot counted is to bring their photo ID to the county board office. In that case, if the voter’s photo ID meets all legal requirements, then the county board of elections must approve the provisional application and the voter’s ballot will be counted the same as a voter who casts a regular ballot.23 Photo ID Exception Forms for In-Person Voters The exceptions to the photo ID requirement are found in N.C.G.S. § 163-166.16(d)–(f), and the county board processes involved are guided by 08 NCAC 17 .0101(e)(1). 15 Can a voter complete a Photo ID Exception Form at a county board office when the voter voted a provisional ballot intending to bring their photo ID to the county board office later but instead could not find a photo ID? No. Under N.C.G.S. § 163-166.16(d), a voter who is voting in person on Election Day or during early voting can only complete a Photo ID Exception Form “at the voting place.” 21 N.C.G.S. § 163-166.16(c). 22 See 08 NCAC 10B .0104(a) & (e) (once a voter receives their ballot, they cannot return to vote again). 23 N.C.G.S. § 163-166.16(c). 12 16 What can a county board consider when reviewing a voter’s Photo ID Exception Form? When a voter completes a Photo ID Exception Form and votes with a provisional ballot, “the county board of elections shall find that the provisional ballot is valid unless the county board has grounds to believe the affidavit is false.”24 A decision that the Form is false must be unanimous, and can only be made after the county board provides the voter notice and an opportunity to be heard on any grounds that the county board is considering regarding the falsity of the Form.25 If a county board ultimately decides that the voter’s Photo ID Exception Form is false, then the county board must “substantiate any finding of falsity with grounds recorded in a written decision.”26 What this means is that the county board must be able to point to specific information before the board that led it to conclude that the affidavit is false. A decision that the Form is false must be based on facts, not speculation, and may not be based on personal opinion as to whether the voter’s asserted reason is a good enough reason for being excepted from the photo ID requirements. Importantly, it is not the county board’s role to second-guess the reasonableness of a voter’s asserted impediment to showing photo ID. Instead, the board is only concerned with the truth or falsity of the statements made on the Form.27 17 Will a voter’s ballot be counted if the voter completes a Photo ID Exception Form and writes on the reasonable impediment “Other” line, “I did not know photo ID was required”? When a voter affirms that they have a reasonable impediment to presenting a photo ID, the law provides that the voter may identify any “other reasonable impediment” and write a brief statement as to what constitutes that other reasonable impediment.28 A statement that the voter was not aware of the photo ID requirement is a true reason for why a voter could not show a 24 N.C.G.S. § 163-166.16(f). 25 08 NCAC 17 .0101(e)(1). 26 08 NCAC 17 .0101(e)(1). 27 As Judge (now Justice) Kavanaugh explained in a case dealing with South Carolina’s similar reasonable impediment exception to presenting photo ID, “[a]ny reason that the voter subjectively deems reasonable will suffice, so long as it is not false. If the affidavit is challenged before the county board, the county board may not second-guess the reasonableness of the asserted reason, only its truthfulness.” South Carolina v. United States, 898 F. Supp. 2d 30, 36– 37 (D.D.C. 2012). 28 N.C.G.S. § 163-166.16(e)(4). 13 photo ID at the time they presented to vote, unless the county board has information proving that the voter did, in fact, know they needed to show ID. Again, the reasonableness of a voter’s impediment to presenting ID is for the voter to determine. The county board’s concern is with the truth or falsity of the statement.29 29 See note 27. Judge Kavanaugh further explained, “the reasonableness of the listed impediment is to be determined by the individual voter, not by [an election official] or county board. The reasonable impediment affidavit simply helps to ensure that voters . . . are who they say they are.” South Carolina, 898 F. Supp. 2d at 36. Special Meeting New Hanover County Board of Elections November 16, 2023 Subject: Review of Provisional Ballot Applications Applicable Statutes and/or Rules N.C. Gen. Stat §§ 163-166.11 and 163A-182.2(a)(4) , NCSBOE Numbered Memo 2023-04 Summary: The Board will be provided with internal research conducted on all provisional applications to assist in determining whether the applications should be approved or denied. In accordance with N.C. Gen. Stat. §163-182.2(4), the Board must count all approved provisional ballots prior to the county canvass. Following the review of provisional ballot applications by the Board, all approved ballots will be scanned and counted using the central tabulator (DS850). Document/s Included: NCSBOE Numbered Memo 2023-04, Provisional Research Report (Provided at Board meeting) Board Action Required: Discuss as necessary and action required Item # 2 Item # 3c P.O. Box 27255 Raleigh, NC 27611 (866) 522-4723 www.ncsbe.gov Numbered Memo 2023-04 TO: County Boards of Elections FROM: Karen Brinson Bell, Executive Director RE: Provisional Ballots and Canvass Procedures DATE: October 12, 20231 This Numbered Memo outlines administrative procedures for rendering decisions on provisional ballots and for canvassing elections. Procedures implementing election laws generally should be uniformly applied throughout North Carolina, and the directives in this memo help ensure consistency in practices by county boards. A provisional ballot is used to record a vote when there are questions about an individual’s eligibility to vote in the contests on the ballot.2 A provisional ballot is also used when a voter does not or cannot present photo ID when voting in person.3 Different county board processes are utilized for eligibility-based provisional ballots and photo ID-based provisional ballots, and as such, each topic is separately discussed below. Provisional voting for any of these reasons, though, involves an application completed by a voter and a ballot that will count in full, in part, or not at all, depending on the outcome of the review by the county board. PROVISIONAL REVIEW: VOTER ELIGIBILITY When a voter votes a provisional ballot due to questions about their eligibility to vote, the county board staff will conduct research after Election Day on that voter’s eligibility and make a recommendation whether to approve or disapprove the application. County board members must ultimately decide whether the applicant was properly registered and eligible to participate in the contests on their provisional ballot. All eligible votes—including provisional votes—must be counted before election results are finally certified. Federal law requires election officials to offer 1 Much of the guidance in this numbered memo was previously issued as Numbered Memo 2018-05 by Executive Director Kim Westbrook Strach. This memo replaces that prior memo and includes many critical updates, including the processes for when a voter casts a provisional ballot for a photo ID-related reason. 2 G.S. § 163-166.11. 3 G.S. § 163-166.16. 2 provisional ballots, and it is the duty of county board members to ensure all provisional applications are fully reviewed. In determining whether to count a provisional ballot in full, in part, or not at all, county boards are guided by the following: 1. The applicant must be a registered voter in the county.4 2. If the applicant’s name was not on the list of registered voters, he or she must have personally made a valid attempt to register to vote in the county before the registration deadline. This means either: a. A Voter Registration Application was received by the county on or before the registration deadline.5 b. A Voter Registration Application was submitted at a public assistance agency or the Division of Motor Vehicles (agencies required to offer registration services under the National Voter Registration Act) on or before the voter registration deadline.6 3. Contests in which the applicant may be eligible to participate are based on their residence as of 30 days before Election Day.7 4. Contests in which the applicant may be eligible to participate are based on his or her party when the voter rolls are closed following the voter registration deadline.8 5. The applicant must meet the requirements for voting under G.S. § 163-166.7(a). Guidance regarding the requirement to present photo ID when voting in person can be found in Numbered Memo 2023-03. 6. The applicant was required to execute a written affirmation before an election official at the voting place, stating that he or she is a registered voter in the jurisdiction (county) and is eligible to vote in the election.9 4 G.S. § 163-82.1. 5 G.S. § 163-82.6(d). 6 G.S. §§ 163-82.19(a), 163-82.20(h). 7 G.S. § 163-55. 8 G.S. §§ 163-59, 163-82.17(d). 9 G.S. § 163-166.11(2). 3 An applicant may choose provisional voting for a variety of reasons. The following sections describe important resources and how best to handle the different scenarios under which provisional voting occurs. Whatever the circumstances, the county board’s task is to determine whether the applicant is eligible to participate in the contests on their provisional ballot. MISSING INFORMATION ON PROVISIONAL APPLICATION If an election official failed to obtain all required information on the Provisional Voting Application, all reasonable attempts must be made to obtain this information.10 It is acceptable to contact the election official or the voter for this purpose. Due to the time constraints associated with canvassing elections, it is important to make an initial review of all provisional applications as early in the process as possible to allow sufficient time to contact voters. DMV PROVISIONAL RESEARCH CONDUCTING DMV PROVISIONAL RESEARCH DMV provisional research includes in-person transactions and online transactions that occurred when the person received services. County board staff have access to a DMV Web Match report and will use it as a reference in conducting DMV research. If the research shows that the provisional applicant made an attempt to register to vote at the DMV (or opted for voter registration services using the online system) on or before the voter registration deadline, the provisional application must be approved as long as there is no information showing the provisional applicant was registered elsewhere after the date of the DMV activity.11 The vote must count even if the county board office has not yet received the signed application as a follow-up to the DMV data indicating a valid registration attempt. If the applicant’s registration activity with the DMV occurred after the voter registration deadline, and the applicant is not otherwise properly registered, the provisional application must be disapproved. In the image below, which shows a portion of what is displayed in the report, Ms. Doe voted provisionally in Davie County. Her DMV record shows DMV registration activity on 12/23/2011 and at the time, she lived in Rowan County. On 02/23/2016, Ms. Doe selected 10 G.S. § 163-182.2 (“If a voter was properly registered to vote in the election by the county board, no mistake of an election official in giving the voter a ballot or in failing to comply with G.S. 163-82.15 or G.S. 163-166.11 shall serve to prevent the counting of the vote on any ballot item the voter was eligible by registration and qualified by residency to vote.”). 11 G.S. § 163-82.19(a) (“Applications to register to vote accepted at a drivers license office under this section until the deadline established in G.S. 163-82.6(d)(2) shall be treated as timely made for an election, and no person who completes an application at that drivers license office shall be denied the vote in that election for failure to apply earlier than that deadline.”). 4 voter registration services through the DMV’s online portal. At the time of the recent transaction, she reported an address in Davie County. However, the activity was after the voter registration deadline of 2/19/2016. [Example is based on March 15, 2016 election date.] Remember, the DMV Provisional Research Report is one of the reports on the intranet (not the internet). Provisional DMV research must be conducted for all provisional applications that are denied due to one of the following reasons: • Not registered; • Moved out of county more than 30 days; or • Registered after deadline. All records checked by 4:45 p.m. each afternoon will be queued for overnight research. You will see the report by the next morning. This process runs nightly, including weekends. DMV is generally the greatest single source of voter registration activity in North Carolina, and DMV research is a vital tool in the county board’s review of provisional applications. UNDERSTANDING THE DMV RESEARCH REPORT No Record of Registration County board staff should bear in mind a number of details necessary to properly understand the DMV research reports. If there is no date in the DMV Date of Registration field, there is no information that the voter made an attempt to register to vote at the DMV. Unless staff finds evidence of some other registration attempt, the provisional application should be disapproved. In the image below, the person voted provisionally in Union County. Mr. Doe’s DMV record shows no record of DMV registration activity – there is no date listed in the field. 5 DMV Record of Registration – Wrong County If there is a date in the DMV Date of Registration field, staff should next look at the county in which the voter resided at the time of the DMV activity. If the voter was not living in the same county as the county in which he or she cast the provisional ballot, then the provisional application should be disapproved (unless there is some other record of timely voter registration in the county). In the image below, Ms. Doe voted provisionally in Union County on 3/15/2016. Her DMV record does show DMV registration activity on 8/27/2014, but the activity occurred when she was living in Mecklenburg County. Unless Union County is able to find some other timely voter registration attempt for her, Jane Doe’s provisional application would have to be disapproved. [Example is based on March 15, 2016 election date.] DMV Record of Registration – Same County as County of Provisional Vote Just as before, if there is a date in the DMV Date of Registration field, staff should next look at the county in which the voter was residing at the time of the DMV activity. If the voter was residing in the same county as the county in which the provisional ballot was cast, then the provisional application should be approved, provided that the date of registration was on or before the voter registration deadline for the current election and the DMV activity date is later than any other registration activity for the person in another county or state. In the image below, Mr. Doe voted provisionally in Person County on 3/15/2016. His DMV record shows DMV registration activity on 8/14/2015 and the activity occurred when he was living in Person County. If there is no additional evidence or information that Johnny Doe was domiciled or registered/voted in another jurisdiction (county or state) between 8/14/2015 and 2/14/2016* (30 days prior to the date of the election), then his provisional application should be approved. [Example is based on March 15, 2016 election date.] 6 REMOVED DUE TO LIST MAINTENANCE A provisional applicant may not appear on the voter rolls because he or she was previously removed as part of a uniform list maintenance action. If the voter has maintained continuous residence in the county, the voter remains eligible to vote. The county board should verify that there is no evidence within our election systems indicating that the voter in fact resided elsewhere (ex. move-within-state, move-out-of-county). The voter’s written or verbal affirmation regarding their continuous residency is sufficient to confirm ongoing eligibility, absent evidence to the contrary, and the county board must approve the provisional application.12 UNREPORTED MOVES A registered voter who has moved within the same county but had not previously updated their registration may vote in the new precinct, the old precinct, or a central location designated by the county board. A voter in this situation may prefer the provisional voting process. If the voter moved within the same county more than 30 days before Election Day, their proper precinct is the new precinct. A provisional application submitted in the old precinct must be approved, but the county board must only count votes cast in contests for which the voter is eligible based on their new residence.13 If the voter moved within the state fewer than 30 days before Election Day, their proper precinct is the one associated with their old address, because they are not yet qualified to vote in the jurisdiction associated with their new address. A provisional application submitted in the new 12 G.S. § 163-82.14(d)(3) (“Any registrant who is removed from the list of registered voters pursuant to this subsection shall be reinstated if the voter appears to vote and gives oral or written affirmation that the voter has not moved out of the county but has maintained residence continuously within the county. That person shall be allowed to vote as provided in G.S. 163- 82.15(f).”). 13 G.S. § 163-82.15(e). 7 precinct in the same county must be approved, and the county board should count all votes cast in contests for which the voter is eligible based on their old residence.14 A provisional application submitted in a new county in which the voter had not timely registered must be disapproved. Similarly, a provisional application submitted in a voter’s former county must be disapproved if the voter established residency in a new county more than 30 days before Election Day.15 Note: If an election official mistakenly required a provisional application from an inactive voter who affirmed that there was no change of address, the provisional application must be approved. Inactive voters should not be required to cast a provisional ballot if there has been no change to their address. This is not an Unreported Move. An Unreported Move is different than an Incorrect Precinct in the provisional review process. INCORRECT PRECINCT If a voter submits a Provisional Voting Application simply because they presented in a precinct other than their proper precinct, the county board must approve the application and count all votes cast in contests for which the voter is eligible.16 Note: An Incorrect Precinct provisional review is different from an Unreported Move. NO RECORD OF REGISTRATION If a voter submits a Provisional Ballot Application because their name did not appear on the voter list or the precinct official could not locate the individual’s name on the voter list, staff must research the applicant’s eligibility. If it can be determined after Election Day and before the canvass that the applicant had properly registered or timely attempted to register by submitting all the required application information before the voter registration deadline, the county board must approve the application and count all votes cast in contests for which the voter is eligible. If the applicant timely attempted to register and there is any missing information required to 14 G.S. § 163-182.2(a)(4) (2012 version). A court decision, NAACP v. McCrory, 831 F.3d 204 (4th Cir. 2016), invalidated a change to this statutory section made in 2013. As a result, the version of this statute prior to that change is in effect. That prior version reads, in relevant part: “. . . If the county board finds that an individual voting a provisional official ballot is not eligible to vote in one or more ballot items on the official ballot, the board shall not count the official ballot in those ballot items, but shall count the official ballot in any ballot items for which the individual is eligible to vote. Eligibility shall be determined by whether the voter is registered in the election district as provided in G.S. 163-82.1 and whether the voter is qualified by residency to vote in the election district as provided in G.S. 163-55 and G.S. 163-57. . . .” 15 See G.S. § 163-57 for the rules for determining residency. 16 See footnote 14. 8 register the voter, the county board must attempt to contact the voter to get the missing information to register the voter; if such information is provided by 5 p.m. on the day before canvass, the county board must approve the application and count all votes cast in contests for which the voter is eligible.17 In researching voter registration, the county board must look at all available resources, including, but not limited to the following: • VoterView (Is the person already registered in the county? Did the election official simply fail to locate the record? Could the voter be registered in a different name?) • VoterScan (Is there a record in the Review or Incomplete Queue and the application date is on or before the voter registration deadline?) • Statewide Voter Lookup (Is the voter registered in another county and if so, what was the date of the last application in the other county?) • DMV Database (Did the person register to vote at the DMV on or before the voter registration deadline? If so, in which county was the voter residing at the time of his or her voter registration activity at the DMV?) • NVRA Agency records (Did the person register to vote at a NVRA agency on or before the voter registration deadline?) VOTERS REMOVED DUE TO FELONY CONVICTION Voters who were previously (and properly) removed due to felony conviction are not automatically reinstated after completing their felony sentence, at which time their voting rights are restored. Persons whose voting rights are restored must re-register on or before the voter registration deadline. There is an exception for those who are restored to citizenship rights after the voter registration deadline; such voters may register in person and vote on Election Day, which can be done by completing the Provisional Ballot Application.18 Unless the voter has properly re-registered to vote, the county board must disapprove the provisional application. VOTERS REMOVED DUE TO MOVING OUT OF THE COUNTY Voters who were previously (and properly) removed because the county received a cancellation notice from the voter or from another jurisdiction (another county or state) are not eligible unless the voter timely registers to vote, or timely attempted to register to vote, upon their return to the county. An application submitted by a provisional voter in this circumstance must be disapproved. 17 G.S. § 163-82.4(f). 18 G.S. § 163-82.6(f). 9 N.C.O.A. NOTIFICATION A National Change of Address (N.C.O.A.) Confirmation Card returned by a voter to their former county of residence confirming a change of address to another county is a proper cancellation notice in the former county. If the former county transfers the notice to the new county and the new county sends a courtesy voter registration notice to the voter, the courtesy application shall not be deemed a voter registration attempt in the new county. After sending a Need Voter Registration Application incomplete notice, the new county should have archived the incomplete record in the voter registration database (SEIMS). If the provisional voter did not attempt to register to vote in a new county of residence by the voter registration deadline, the provisional application must be disapproved. RESIDENCY If no record of registration can be found for a voter and the voter provides a residential address outside of the jurisdiction of the county in which the provisional ballot was cast, the Provisional Voting Application must be disapproved and the Voter Registration Application must be denied. DENIED REGISTRATION If a voter’s registration was properly denied because the applicant failed mail verification, the applicant is not a registered voter and the Provisional Voting Application must be disapproved.19 SAME-DAY REGISTRANT WITHOUT PROOF OF RESIDENCE During the early voting period, a person seeking to use same-day registration is required to provide proof of voting residence. (For guidance regarding the same-day registration options and identification requirements, see Numbered Memo 2016-15). If the registrant did not provide the proof of residence, and instead submitted a Provisional Voting Application, the applicant must produce the required proof of residence to the county board office on or before the day preceding canvass. If required proof is timely provided, the county board should approve the application and count all votes cast in contests for which the voter is eligible. If proof is not timely provided, the Provisional Voting Application must be disapproved but the Voter Registration Application must be processed after canvass, allowing the voter to participate in future elections. INCORRECT PARTY Sometimes a voter affiliated with one political party submits a Provisional Voting Application to vote a ballot for a different political party’s primary. Staff should conduct research to confirm the voter’s affiliation. If the record confirms the voter is registered in the county and the voter has an eligible ballot for this election, but is affiliated with a different political party than the political party in whose primary the voter cast a provisional ballot, the county board must count only the 19 See G.S. § 163-82.7. 10 contests in which the voter was eligible to participate (non-partisan contests, if any). In the provisional module in SEIMS this would be considered a partial vote. If the county board finds that the voter’s party affiliation was incorrectly listed in their voter record, then the application must be approved and the ballot must be fully counted. VOTED DURING EXTENDED HOURS ON ELECTION DAY The State Board may order that one or more voting places remain open after 7:30 p.m. on Election Day. In that case, all voters arriving after 7:30 p.m. during the extended time that the polls remain open will be permitted to vote, but they must vote by provisional ballot. In this case, the provisional process is in place merely to preserve the ability of a court or other tribunal to consider whether the polls should have remained open. Under statute, provisional applications submitted solely due to extended voting hours must be approved and the votes counted if no contrary judicial order has been issued by the time canvass occurs.20 ALREADY VOTED If the poll book indicates that a voter has already voted, that individual may wish to submit a Provisional Voting Application and provisional ballot. The county board must then determine whether the individual had in fact voted previously in the same election. Because no voter is entitled to vote more than once in an election, the county board must disapprove the application of any voter who has already voted. Instances of attempted double-voting should be reported to State Board investigators for further review. If the poll book inaccurately indicated that the voter had already voted, no administrative error should act to prevent a qualified voter from participating, and the county board should approve the application. Any instances of double voting must be reported immediately to the State Board of Elections. * * * The above scenarios provide guidance on the proper approach for county boards reviewing provisional applications and the determinations regarding the contests for which a voter may be eligible. As elections officials are keenly aware, however, multiple reasons may converge in a single instance of provisional voting (e.g., a voter may try to vote in the wrong party and the wrong precinct). county boards are encouraged to keep in mind the core objective is to research the applicant and ultimately count votes cast in races for which the voter was eligible, if any. Under any scenario where a provisional ballot is counted, in whole or in part, voter history should be given to the voter. If any errors are made regarding voter history, amendments to voter history can still be made after canvass. 20 G.S. § 163-166.01. 11 PROVISIONAL REVIEW: PHOTO ID There are two instances when a voter who does not present acceptable photo ID will cast a provisional ballot while voting in person:21 1. The voter completes a Photo ID Exception Form, claiming an exception to the photo ID requirement, and then votes a provisional ballot. 2. The voter votes a provisional ballot and then brings an acceptable photo ID to the county board office before the close of business on the day before county canvass. When the Voter Has Completed a Photo ID Exception Form If the voter completed a Photo ID Exception Form and is otherwise eligible to vote, staff are required to recommend approval of the application and the county board is required to count the provisional ballot, unless the county board unanimously finds that the Form is false.22 If staff are aware of any specific information that may lead the county board to conclude the Form is false, staff should note this for the county board’s consideration. Staff should not conduct independent research into the truthfulness of the Form; the General Statutes do not specifically authorize this activity, and it would be nearly impossible to guarantee the equal treatment of voters across all 100 counties if such independent investigations were to take place. Numbered Memo 2023-03 provides guidance on what may be considered when reviewing a voter’s Photo ID Exception Form. Before the county board determines that a Photo ID Exception Form is false, the voter must be given notice and an opportunity to be heard on any grounds that the county board is considering regarding the falsity of the Form. The opportunity to be heard must be at a meeting of the county board prior to completion of the canvass, which could include the canvass meeting. Notice must be by U.S. mail and the voter must be contacted by any email address or phone number that the county board has for the voter.23 Because of the notice and hearing requirements, staff should group provisional ballots together that were cast with a Photo ID Exception Form, and prioritize their review at the start of the canvass period so the voter can be timely informed if the board may be questioning the truth of the voter’s Form. In conducting its final review of a Form at the meeting, the county board should discuss the Form in an open session, determine whether the voter is in attendance, and confirm whether that voter wishes to be heard regarding their Form. Once the voter has been given the opportunity to be heard and present any information relevant to the Form, the county board should vote on whether to approve the Form. If the county board unanimously finds that the Form is false, the 21 G.S. § 163-166.16(c)–(e). 22 08 NCAC 17 .0101(e)(1). 23 Id. 12 county board must state those grounds in a written decision. The county board’s decision that a Form is false must be based on facts, not speculation or personal opinion. When the Voter Brings a Photo ID to the County Board Office After Voting Voters who choose to vote a provisional ballot and then bring their photo ID to the county board office must do so no later than 5:00 pm on the business day before county canvass. A county board staff member must examine the photo ID in the same way a check-in official does at the voting site—determining (1) whether the ID is an acceptable type, (2) whether the photo bears a reasonable resemblance to the voter, and (3) whether the name is the same as or substantially similar to the voter’s name in the registration records.24 It is recommended that a staff member trained to review a voter’s photo ID card be designated to conduct this review. After examining the photo ID, the staff member must proceed as follows: • If the staff member determines the photo ID is acceptable, they must recommend approval of the application if the voter is otherwise eligible to vote.25 Staff should consult the State Board’s latest Approved Photo IDs List to confirm an ID is an acceptable type. • If the photo ID is not an acceptable type of photo ID, staff must tell the voter why that is the case and ask the voter to provide an acceptable photo ID.26 • If the photo ID does not satisfy the photo or name requirements, staff must recommend disapproval of the application, even if the voter is otherwise eligible to vote.27 If disapproval is recommended, the voter must be immediately told by staff the reason for their recommendation of disapproval and when their provisional ballot will be reviewed and considered by the county board. If the voter appears at that meeting and desires to be heard on whether their photo ID is acceptable, the county board members must apply the same standards as election officials when reviewing the ID. If the voter does not bring an acceptable photo ID to the county board office by 5pm on the day before canvass, staff must recommend disapproval of the application even if the voter is otherwise eligible to vote. If the voter timely brings a photo ID that is an acceptable type of photo ID and is otherwise eligible to vote, the county board must count the provisional ballot unless the county board 24 08 NCAC 17 .0101(e)(2). 25 08 NCAC 17 .0101(e)(2)(A). 26 08 NCAC 17 .0101(e)(2)(B). 27 08 NCAC 17 .0101(e)(2)(C). 13 unanimously decides the photo ID presented does not satisfy the photo and name requirements, and records in writing the grounds for its decision.28 CANVASS PROCEDURES Canvass is the board’s responsibility. The members of the county board are responsible for ensuring the accuracy and integrity of election results in the county. Canvass is a key part of carrying out that duty. By law, canvass is: [T]he entire process of determining that the votes have been counted and tabulated correctly, culminating in the authentication of the official election results.29 In support of this process, a board of elections conducting canvass has the authority to send for papers and persons, and to examine such documents or question such persons for the purpose of making determinations as to the legality of disputed ballots. The county canvass date and time are set by statute: at 11:00 a.m. on the 10th day after every election.30 At that meeting the board’s purpose is: [T]o complete the canvass of votes cast and to authenticate the count in every ballot item by determining that all votes have been counted and tabulated correctly. If, despite due diligence by election officials the initial counting of all the votes has not been completed by the statutory date, the county board may hold the canvass meeting at a reasonable time thereafter. The canvass meeting shall be at the county board of elections office, unless the county board, by unanimous vote of by three members, designates another site within the county.31 Ensuring the integrity of every election is our primary responsibility as elections administrators. County board members have a critical role in this process. Ultimately, county board members will sign the certification documents that authenticate and certify that the election results are true and accurate. 28 08 NCAC 17 .0101(e)(2). 29 G.S. § 163-182.5(a). 30 G.S. § 163-182.5(b). However, canvass is seven days after the municipal primaries and elections in September and October in odd-numbered years. See Numbered Memo 2023-01. 31 G.S. § 163-182.5(b). 14 The items that follow must occur as part of every election canvass: ALL MEMBERS PRESENT All county board members must be present32 for canvass under G.S. § 163-89: “All members of the board shall attend the canvass and all members shall be present for the hearing of challenges to absentee ballots.” PUBLIC NOTICE County boards of elections members may take no action outside a meeting for which there has not been proper public notice.33 The county board must issue public notice of any meeting involving the counting of ballots. In addition to being posted in public, the notice lists for a canvass meeting shall include all individuals and institutions that usually receive notice of meetings. It is best practice to notify leadership of any recognized political parties with a presence in the county. Any voter of the county or other member of the public must be permitted to attend the meeting and be allowed to observe the counting process, provided that no one shall interfere with the election officials as they count the ballots or are engaged in the discharge of their other duties. If media or the public are filming or photographing proceedings, the county board should remind those present that state law forbids anyone from taking an image of a voted ballot, and no one but election officials may have access to and review voted ballots.34 RECONCILIATION One of the most important tasks conducted during the canvass process is reconciliation. Many levels of reconciliation take place before the final certification of results are concluded and involve comparing data against inventories of voting supplies (such as ballots and data storage cards), and total ballots cast (including provisional and absentee ballots). The process begins with early voting and continues through precinct reconciliation and until final canvass. If any issues are identified in a county board’s efforts to reconcile, those issues must be addressed immediately. If you do not address reconciliation issues initially, problems may carry forward and affect your broader canvass process. The State Board Office conducts a number of audits to assist counties in identifying issues throughout the canvassing process, but there are certain reconciliation processes that are not captured in electronic data and that county staff must vigilantly review. For example, the State Board Office does not have data that captures the physical number of provisional ballots you receive from the polling location, and it is imperative 32 See Numbered Memo 2022-08 regarding physical and virtual presence at canvass. 33 See G.S. §§ 143-318.10, 143-318.12(b). 34 G.S. §§ 163-165.1, 163-166.3. 15 county reconciliation processes includes comparing the physical number of provisional ballots to the provisional module application within SEIMS and any poll book information. If there is a discrepancy, you must investigate, identify, and document the reason for the discrepancy. Any staff reconciliation process that is conducted must include documentation that is signed by two staff members. This documentation must be maintained and available for county board members during their canvassing meetings. The two-staffer requirement is to combat inadvertent errors and potential misconduct. COUNTING OF ABSENTEE BALLOTS ON ELECTION DAY35 County boards meet at 5 p.m. on Election Day (or earlier if a resolution is adopted at least two weeks before the date of the election) in the board office or other public location for the purpose of counting all absentee ballots, except those: • Challenged before 5 p.m. on Election Day, or • Received after 5 p.m. on the day prior to Election Day. The counting of absentee ballots shall be continuous until completed and the members shall not separate or leave the counting place except for unavoidable necessity. As each ballot envelope is opened, the board shall check off the name of the absentee voter. For the preservation of secrecy, the ballots shall be placed in the appropriate ballot box or container for tabulation. After all ballots have been placed in the boxes, the counting process shall begin. At each of the absentee meetings prior to Election Day, it is permissible for the Board, after approval of each absentee ballot, to cause staff to take preparatory steps and remove those ballots from their envelopes and have them read by an optical scanning machine, without printing the totals. Documents to be prepared and signed by the county board The following documents shall be prepared for the county board’s review and signatures: 1. The poll book of absentee voters. As soon as the absentee ballots have been counted on Election Day, the board members and assistants employed to count the absentee ballots shall each sign the poll book of absentee voters, with the signature to be affixed immediately beneath the last absentee voter's name. The county board shall be responsible for the safekeeping of the poll book of absentee voters. 2. The results tapes of electronic absentee ballot count. When absentee ballots are counted electronically, the members of the board present shall sign the results tape, which 35 G.S. § 163-234. 16 shall be retained for purposes of review and examination at the official county canvass proceeding. 3. The absentee abstract. The board members shall cause the results of the tally to be entered on the absentee abstract. The abstract shall be signed by the members of the board in attendance and shall then be scanned and uploaded electronically to the State Board. 4. The chain of custody report(s). Voted ballots shall be properly secured and a documented chain of custody shall be maintained for the ballots, tapes, poll book and other documentation/media related to tabulation. COUNTING OF ADDITIONAL ABSENTEE BALLOTS RETURNED BY MAIL36 County boards of election must have an additional meeting following the day of the election and prior to the date of the county canvass to consider absentee ballots received by mail after 5 p.m. on the day prior to Election Day that are deemed timely. Civilian absentee ballots received by mail after Election Day are timely if they are postmarked on or before Election Day and received by 5 p.m. on the third day following Election Day.37 Military and overseas ballots that are received by mail after Election Day are timely if they are received no later than 5 p.m. on the last business day prior to the county canvass. These additional absentee ballots are required to be counted before or on the day of the county canvass. At least one board member of each political party shall be present for the counting of absentee ballots. This fact shall be publicly declared and entered in the official minutes of the absentee board meeting. The county may use assistants in the counting of the official ballots, but the county board members are responsible for observing and supervising the opening and tallying of the ballots. Documents to be prepared and signed by the Board The following documents shall be prepared for the county board’s review and signatures: 1. The results tape for electronically counted absentee ballots. When absentee ballots are counted electronically, the members of the board present at the canvass meeting shall sign the results tape, which shall be retained for purposes of review and examination at the official county canvass proceeding, along with the Election Day absentee results tape. 36 G.S. § 163-232 and G.S. § 163-234. 37 However, if this three-day deadline falls on a holiday, such as Veterans Day, the deadline for receipt is the next business day. G.S. § 103-5(a). 17 2. The civilian and military-overseas certified lists of executed absentee ballots returned on or after Election Day. The county board staff shall prepare these lists in triplicate and the board shall sign all three originals of each list. One signed original of each list shall be electronically uploaded to the State Board. 3. The supplemental absentee abstract. The county board members shall cause the results of the tally to be entered on the supplemental absentee abstract. The abstract shall be signed by the members of the board in attendance and the original Election Day absentee abstract and the supplemental absentee abstract shall be mailed immediately to the State Board. 4. The poll book of absentee voters. The board shall sign the final poll book of absentee voters at this time. 5. The chain of custody report(s). Voted ballots shall be properly secured and a documented chain of custody shall be maintained for the ballots, tapes, poll book and other documentation/media related to tabulation. HEARING ON ABSENTEE BALLOT CHALLENGES38 The following must be heard by the county board on the day of the county canvass: • Any challenge to an absentee ballot that was properly brought on the day of any primary or election; and • Any challenge to an absentee ballot that was timely mailed by Election Day and received by the county board after Election Day, and was properly challenged no later than the time set by statute. Notice must be provided to all challenged voters. All members of the board of elections shall attend the canvass and must be present for the hearing of the challenges to an absentee ballot under G.S. § 163-89. Note: Challenges to absentee ballots may not be heard any sooner than the day and time set for the county canvass. The State Board’s Voter Challenge Procedures Guide contains additional information and guidance regarding absentee ballot challenges. 38 G.S. § 163-89. 18 COUNTING OF WRITE-IN VOTES39 If write-in votes are not counted at the precinct after the close of polls, any write-in votes cast at the county board office shall be conducted in the presence or under the supervision of the bipartisan county board. Write-in votes shall be recorded on a write-in tally sheet, which shall be signed by the members of the county board. REPORTING PROVISIONAL BALLOT COUNTS40 No later than 12:00 P.M. two days after the close of the polls, the county board of elections shall publish the number of provisional ballots cast for the following voting methods: • Election Day • One-Stop Voting • Absentee by-mail received as of election day • Military and Overseas Absentee Ballots To comply with this requirement, the State Board sends out a survey to all county boards the day after Election Day and uses the information gathered from the survey to report provisional ballots for all counties. County boards must complete this survey by the morning of the second day after Election Day. In the survey, if no provisional ballots were cast for a specific category, the county board should enter zero. COUNTING PROVISIONAL BALLOTS41 The county board shall meet between Election Day and canvass to make a determination as to each provisional official ballot. A meeting before canvass may include a meeting on the day of canvass, but such a meeting must occur before 11 a.m. Under no circumstances shall any county board staff open a provisional envelope or tabulate results before the county board members have made their official determination on the provisional ballot application. In making its determination, the county board may rely on the provisional research conducted by county board staff, but county board members may make additional inquiries of staff as they see fit. When a voter casts a provisional ballot for one or more eligibility-related reasons and a photo ID-related reason, staff should make recommendations on all reasons the voter cast a provisional ballot. Approval of a provisional 39 G.S. § 163-182.2(a)(2); see also Numbered Memo 2019-07 for guidance in applying the standards for determining voter intent for write-in votes. 40 G.S. § 163-166.11(5). 41 G.S. § 163-182.2(a)(4). 19 application for a photo ID-related reason will not override a determination that the voter was otherwise ineligible to vote. Please refer to the first two sections of this Numbered Memo regarding the proper review processes necessary to make decisions on Provisional Voting Applications and the counting of votes in eligible contests. When conducting provisional research, county board staff shall, at a minimum, follow the instructions in this Memo and review the following resources: • the voter’s provisional voting application • the county’s voter registration database (active, inactive, removed and denied voters) • pending voter registration applications, including applications in the incomplete or review queue • the non-public access to statewide voter registration information (intranet site) • DMV provisional research results Every effort must be made by county boards of elections to correct administrative errors well before the board meets to consider and count the provisional official ballots. If a voter was properly registered to vote in the election by the county board, no mistake of an election official shall serve to prevent the counting of the vote on any ballot item for which the voter was eligible by registration and qualified by residency to vote.42 A county board shall never reject a voter’s provisional application due solely to an administrative error by an election official. Staff must review provisional voting applications soon after Election Day to determine if more information is needed from a provisional voter to assist the county board in making the proper determination as to whether to count a person’s ballot. Such administrative efforts may include, for example, following up with a voter to: • Have the voter sign the provisional voting application, if it was not signed. • Have a voter who claims to have registered at the NCDMV, but for whom no record of registration was found, provide his or her driver license number if it was not provided on the provisional voting application. If, in the course of reviewing provisional applications, a staff member suspects that improper instructions were given by an election official or finds that information is missing on the application, the staff member shall make every effort to ensure that the voter is given the opportunity to provide the required information. 42 G.S. § 163-182.2(a)(4). 20 It is essential that the process for handling provisional ballots is followed. County boards should be making decisions as to the disposition of provisional ballots based on information presented from staff research, rather than from unofficial or unverified sources of information. Again, no provisional envelopes shall be opened and tabulated prior to the county board voting on the disposition of a provisional ballot. The opening and tabulation of approved ballots shall be done in the presence and under the supervision of board members. [Note: Before a provisional ballot is separated from its envelope, county board staff shall ensure that the election official wrote the correct PCT/VTD number on the ballot; if not, the correct PCT/VTD shall be written on the ballot before the ballot is tabulated, to ensure the ballot is retrievable.] Partial-Count Procedures With respect to ballots that must be partially counted,43 the county board shall have a process to count the contests for which the voter is eligible. The county board shall select one of the following processes to count eligible contests: • Ballot duplication – Either the county board members or a bipartisan team shall assemble to duplicate the original provisional official ballot. Until certain auditing improvements are made to SEIMS and in light of the 30-day precinct sort, it is within the county board’s discretion to duplicate the partially counted ballots either onto a ballot of the same style as that cast by the provisional voter or on a ballot of the proper style assigned to the voter. The team shall mark the blank ballot for all contests which the voter is eligible to vote. The board shall annotate the blank ballot by some indication or marking that the ballot is a duplicate of the original ballot, minus the contests in which the voter was ineligible to participate. When using this method, one team member shall call out the voter’s ballot choice and the other team member shall mark the blank ballot. Ideally, a third person will then review and compare the original ballot to the duplicated ballot, or, in the absence of a third person, the two-person team can switch ballots and roles and permit the caller to review the ballot marked by the first person, and vice versa. The duplicated ballot shall then be tabulated along with fully counted provisional official ballots. • Hand-tally – Either the county board or a bipartisan team of election officials shall assemble to hand-tally the votes cast for all eligible contests and ballot choices. When using this method, one team member shall call out the voter’s ballot choice and the other team member shall mark a tally sheet. A third person shall observe the team’s actions of calling and marking the tally sheet. 43 When a voter casts a provisional ballot solely for a photo ID-related reason, there is no partial counting of ballots—the voter’s ballot is counted in full or not at all. 21 Once the county board has made a final determination as to the provisional official ballots for the election, the county board staff shall prepare a final disposition report for the board of elections members to review and sign. Once signed, the ballots that are to be counted (fully or partially approved) shall be tabulated. Regardless of whether the ballots are electronically tabulated with the use of certified and tested voting equipment, or are instead hand-tallied, the results of the tabulation shall be signed by the county board members or the bipartisan team of election officials who participated in the count. The final disposition report and the counted official provisional ballots shall be sealed together and maintained as part of the official documentation of the election. The signed results tapes shall be retained for purposes of review and examination at the official county canvass proceeding. Documents to be prepared and signed by the county board The following documents shall be prepared for the county board’s review and signatures: 1. The report of “provisional voters by precinct voted.” 2. The results tapes. When provisional ballots are counted electronically, the results tape must be signed by the members of the board present at the canvass meeting. Board members shall sign the tape before the tabulation begins (the “zero tape”) and then again after the tabulation is complete. These signed results tapes shall be retained for purposes of review and examination at the official county canvass proceeding. 3. Chain of custody report(s). Voted ballots shall be properly secured and a documented chain of custody must be maintained for the ballots, tapes, poll book and other documentation/media related to tabulation. FINAL CANVASS PROCEEDINGS AND CERTIFYING THE ELECTION To complete the canvass of votes cast and to authenticate the count in every ballot item in the county by determining that the votes have been counted and tabulated correctly, the county board must: • examine the returns from all Election Day precincts, • examine the returns from absentee official ballots, • examine the sample hand-to-eye paper ballot counts, and • examine the returns from provisional official ballots. After examining the returns, the board shall conduct the canvass and sign the official abstract of results. 22 The county board is required by law to authenticate the election results at the conclusion of canvass in the form of an official abstract of the vote totals.44 This event may only be delayed when there is an election protest pending and that protest concerns the manner in which votes were counted or results tabulated.45 There is no other legal basis for a county board member to withhold authentication of the election results in the form of an official abstract.46 Moreover, federal law does not permit election officials to decline to count or report eligible voters’ ballots.47 Canvassing and certifying election results is the way, under North Carolina law, that county boards count and report the votes of their county’s voters. The issuance of a certificate of election to the winner of an election contest occurs six days after the election results are certified via the abstract at canvass. The county board is required by law to issue such a certificate, based on the official results determined at canvass and as reported in the abstract. Only a pending election protest may delay or prevent the issuance of a certificate of election, and only as provided for in state law.48 44 G.S. §§ 163-182.5(b), 163-182.6. 45 See G.S. § 163-182.10(a)(2). The county board should attempt to resolve such a protest before the canvass is completed. If necessary to provide time to resolve the protest, the county board may recess the canvass meeting, but shall not delay the completion of the canvass for more than three days unless approved by the State Board of Elections. At the conclusion of the protest proceedings, the county board must supplement the abstract with the results for the ballot item that is the subject of the protest. Resolution of the protest shall not delay the canvass of ballot items unaffected by the protest. 46 See Order, In Re Complaint of Bob Hall, State Bd. of Elections (March 30, 2023). 47 The federal Voting Rights Act of 1965 makes it illegal to willfully decline to count or report a lawful vote. 52 U.S.C. § 10307(a) (“No person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote under any provision of chapters 103 to 107 of this title or is otherwise qualified to vote, or willfully fail or refuse to tabulate, count, and report such person’s vote.”). 48 See G.S. § 163-182.15. Special Meeting New Hanover County Board of Elections November 16, 2023 Subject: General Discussion Summary: This is an opportunity for discussion on other elections-related matters not included in the meeting agenda. Board Action Required: Discuss as necessary Item # 4