This is the second of a two-part series on proposed election rules changes. Part one covered proposed rules for recounts and voter ID.
The North Carolina State Board of Elections (SBE) has proposed a set of election rules changes. Two of the proposals address absentee voting and voting sites. This post will include summaries of those proposals and provide information on how you can provide a public comment on them.
Absentee Voting Rules
This would add a new subchapter to the chapter on rules for absentee ballots for ballots with deficiencies. The addition is long overdue, as county election officials rely on informal guidance in numbered memos from the State Board of Elections (SBE). While numbered memos are supposed to reflect election laws and rules, they do not undergo the formal vetting process that rules do. The SBE ran into trouble over numbered memo shenanigans in 2020, including having its numbered memo guidance overturned by a federal court.
The rules fall into four categories.
I. Curable deficiencies. Problems that can be corrected by election officials contacting the voter. Some of those deficiencies include:
- The voter did not sign the absentee ballot application or signed it in the wrong place.
- The required photocopy of the voter’s ID is either missing, unreadable, or not of the acceptable type.
- The name on the ID is not the same as or “substantially equivalent” to that on the voter file. Maiden names are considered substantially equivalent (see 08 NCAC 17 .0101(a)(3)(D))
Something missing here is a procedure for confirming that an illegally transmitted ballot is really from the voter.
II. Non-curable deficiencies. Problems that cannot be corrected by contacting the voter include:
- The ballot envelope is not sealed or appears to have been opened and resealed.
- The voter is requesting a replacement ballot (not really a deficiency, but the voter will get a new ballot if there is enough time left before election day).
- The name of a witness or an assistant is not printed on the application or is not legible, unless officials can determine the name of the witness or assistant from the signature.
- A witness or notary did not sign the absentee ballot application.
For non-curable deficiencies, election officials will send the voter a replacement ballot if it is at least 4 days before election day. If it is three days or less before election day, they will attempt to contact the voter to encourage them to vote in person.
III. Irregularities that do not require further action from the voter. If the ballot arrives inside a sealed ballot envelope, but the outer envelope is not sealed, or if it is hand-delivered in an unsealed envelope that is later sealed in front of officials, officials will note the issue but accept the ballot.
IV. Irregularities that require further action. Some situations require officials to contact the voter for further information before they can determine if a ballot is curable or not:
- The ballot envelope is not sealed or appears to have been opened and resealed, but the outer envelope is sealed.
- The ballot returned to officials is not the same as the ballot sent to the voter (this could happen to a couple who accidentally send their ballot in their spouse’s envelope).
Here is a link to the proposed absentee ballot rules. Here is how you can provide the SBE with your public comment (Deadline: Tuesday, July 14):
- Online on the Public Comment Portal: Absentee Voting Rules
- Email: [email protected] (Specify that you are commenting on the absentee voting rules.)
- In-Person Public Hearing: 10 a.m. June 22, in the Board Room at the State Board of Elections, Dobbs Building, 430 N. Salisbury St., Raleigh, NC 27603.
- Mail: Attn: Rulemaking Coordinator, P.O. Box 27255, Raleigh, NC 27611-7255 (Specify that you are commenting on the absentee voting rules.)
Voting Site Rules
The proposal would add a subchapter to Chapter 10 of the state election regulations. That chapter is listed as “Ballot Rotation Rules For Primary Election Ballots,” but the actual chapter title is “Election Day Matters.”
The proposed subchapter has three substantive sections.
I. Voting Sites Buffer Zones. This section builds on § 163‑166.4, the state law limiting activities in and near voting places. It requires county boards of elections to pass resolutions establishing buffer zones around each voting site (early voting sites and election-day precincts) in which electioneering activities are banned. It reasonably extrapolates from the law that voting places with multiple entrances should have a buffer zone around each entrance; the law refers to “the door of entrance.” Election officials must clearly mark the buffer zones before voting begins. State law requires the buffer zone to be 25-50 feet (50 feet where possible) from the entrance to the voting area.
The rules also establish a buffer zone of 6 to 15 feet from curbside voting places and require that curbside voting areas be large enough to accommodate two vehicles at a time.
II. Voting Site Electioneering Zone. This section establishes procedures for election officials to create and mark zones adjacent to the buffer zones for people to conduct electioneering activities and for additional non-adjacent electioneering zones, if the county board determines that the physical layout of the voting site will result in an insufficient amount of space for electioneers to engage in the election-related activity.” Presumably, that means that there is an intervening area that is not part of the property housing the voting site. The purpose of the electioneering zone is to assure that there is an area next to the buffer zone for electioneering activities, to to limit electioneering to that zone and nowhere else.
III. Restrictions of conduct at or near voting sites. This section states that election officials “shall ensure peace and good order at the voting site.” The responsibility includes enforcing the prohibition of “election-related activities” within the voting area and buffer zone.
It also includes preventing any “noise and sound that is disruptive to the voting site” from outside. What is considered disruptive is not left to interpretation. It is “any noise at a volume that is audible to the chief judge or a judge when that official is in the voting enclosure.” If you are outside and election officials can hear your shouting or other noise from inside the voting area, you are being disruptive. They will then require you to quiet down until you are “longer audible in the voting enclosure.” The rule also bans the use of a “sound amplification device,” such as a megaphone near a voting site. Again, if they can hear you from inside, you are being disruptive.
The State Board of Elections claims the authority to set these rules, in part on § 163‑48 of state law, which tasks election officials with enforcing “peace and good order in and about the place of registration and voting.” The US Supreme Court upheld states restricting speech in voting buffer zones in Burson v. Freeman (1992), stating “a government has such a compelling interest in securing the right to vote freely and effectively.”
Here is a link to the proposed voting site rules. Here is how you can provide the SBE with your public comment (Deadline: Tuesday, July 14):
- Online: Public Comment Portal: Voting Site Rules
- Email: [email protected] (Specify that you are commenting on the voting site rules.)
- In-Person Public Hearing: 10 a.m. June 29, in the Board Room at the State Board of Elections, Dobbs Building, 430 N. Salisbury St., Raleigh, NC 27603.
- Mail: Attn: Rulemaking Coordinator, P.O. Box 27255, Raleigh, NC 27611-7255 (Specify that you are commenting on the voting site rules.)
