From Jim Womack,NCEIT Coordinator, July 27, 2023
I received an email this weekend that was forwarded from one of the more prominent election directors in NC- Sara LaVere from Brunswick County. I am curious about whether she has actual knowledge of a planned PCS to H772. If so, I am surprised she was provided this PCS to circulate when the general public and other advocacy groups are completely unaware of its existence or that any such proposal was being made. I pray our conscientious House Elections and Rules Committee members will reject any moves to alter what was a superb piece of legislation (House Bill 772) by watering it down and making it ineffective in fulfilling the spirit and intent of the existing general statutes. Frankly, none of the proposed changes in the attached PCS would improve H772 or amplify the spirit and intent of the existing language in NCGS 163-45. Here is the text of Mrs. LaVere's email (in Black) sent to all election directors, statewide. My comments on behalf of thousands of trained poll observers across the state are annotated in red: ----------------------------------------------------------------------------------------------- Good morning, all. This is a proposed committee substitute for H772 that is likely to be introduced when this bill is heard again in committee (not currently scheduled). (See below.) I believe we can all recognize that observers need clearer guidance than the present law provides - and that clarity would also help voters and election officials. (I could not agree more with this one statement. That is precisely why H772 was so important- 2700 precincts and 2700 different interpretations of standards for poll watching.) This alternative (bill) still gives observers rights to look closely at voting operations - BUT it set clear limits. Here are some key ways this alternative differs from the current iteration of H772: * Political parties can still recruit observers countywide and statewide, but instead of allowing up to 3 observers per party per site at any one time, as in H-772, the alternative sets the limit at 2 observers per party per site at any one time. (The provision for up to 3 partisan observers extends from interpretation of language in the current statute. While 3 observers from one party rarely occurs, there are occasions when it may be necessary for short periods, namely when an election violation is occurring and witnesses are needed. Also, at shift change incoming and outgoing poll observers may require a brief overlap for orientation purposes.)
* The observer can move around, but not into the voting booth area as allowed in H-772. (H772 does not allow the poll observer to venture into the actual voting booth, or any closer than five feet from any voter. However, the language in this PCS could be used to prohibit the poll observer from observing activity in the voting booth area from an entrance way or remote area. Poll Observers must be able to watch for violations in the voting booth area at all sites. We have had numerous reports of violations in the voting booth area at polling sites and those violations need to be observed and reported.)
* Subject to the physical limitation of the voting enclosure, the observer can observe the check-in process from 8 feet away, rather than 5 feet away as in H-772. (Clearly, this was written to prohibit poll observers from effective monitoring of the check in process. Eight feet separation is NEVER adequate. Current statutes allow the observer to hear the name and address of the voter, and eight feet is far too distant to perform that duty in the vast majority of polling places. The proposed five foot rule in H772 was derived from thousands of poll observer reports indicating the maximum distance at which observers could actually watch and listen for election violations without intimidating voters or viewing their ballot markings.)
* The observer can observe tabulating machines, opening & closing poll tapes, emergency repairs, etc., but not with a camera as in H-772. (The present statute does not prohibit the use of cameras nor should cameras be prohibited. H772 has superb language addressing the proper and improper use of cameras- no voter or ballot may be photographed, but cameras should be allowed to capture violations of election site set-up, improper electioneering, and other violations at polling sites. Barring cameras from use prevents the gathering of evidence of elction malfeasance and damages voter confidence in election outcomes.)
* The observer can report an election worker's alleged violation to the county board of elections for appropriate action, but it's not a criminal offense as in H-772. (This proposed change contradicts federal law. 18 US Code 245 clearly prohibits interference with poll watchers. Thus, this citation ought to be made known in NC statutes as well, as it is in H772. It is imperative that election officials are aware of the criminal nature of their interference with statutorily allowed poll observation activities.)
* The observer can use an electronic device to take notes, but not for filming or audio recordings inside the poll, unlike H-772. (Again, poll observers must be free to record audio instructions or admonitions they are being given by election officials. Denial of that right allows an election official to abuse his authority over the polling site with impunity. This abuse is reported at dozens of sites in each election. State law allows the recording of conversations so long as one of the two parties is congizant the recording is being made.)
* The election official can remove an observer for misconduct but needs to give them a warning first, as in H-772, unless the misconduct endangers voters' safety (like brandishing a gun) or security of the voting process (like tampering with machines) - these safety/security exceptions are not in H-772. (This is a misconstrued provision. The local Sheriff, Police Chief or other law enforcement official has the authority to respond to a report of dangerous or disruptive behavior at the polls. The Chief Judge has the authority to contact law enforcement and arrange for the removal. Election officials have no authority or right to order the removal of anyone without a warning until or unless law enforcement arrives. H772 merely establishes the need for warnings before ordering a poll observer from the site. The PCS language is superfluous.)
* The law becomes effective Jan. 1, 2024, instead of immediately when it passes as in H-772. (The provisions of this law are easily taught and enforced within days of its passage. No reason to delay its implementation until the 2024 election cycle, as the provisions of H772 are already inferred in NCGS 163-45 already, just not as explicitly as in H772.)
IN ADDITION, the State Board will turn these restrictions and rights into an online training video and a form that observers sign to indicate they understand; they present the signed form to the election official when they begin service. (Note- the North Carolina Election Integrity Team (NCEIT) teaches poll observers their duties in accordance with the entirety of NCGS 163. In fact, our organization trains and educates many election officials around the state. Feedback from election officials indicates NCEIT training is far more detailed and generally superior to what local boards of elections and the NCSBE provide to election workers around the state. There is no need for the NCSBE to specify that poll observers must sign a form attesting to their understanding of the NCSBE 's convenient interpretation of the law. There is no statutory requirement necessitating such a form and the NCSBE ought not burden itself with managing those forms and activity. They have enough to do already in meeting their statutory obligations.)
Sara LaVere | Elections Director
Brunswick County Board of Elections
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Thanks in advance for your support for H772 in its present form. House Judiciary I provided a favorable report of the bill out of committee, without change, because it is a solid piece of legislation. The attached PCS would not improve it in any way. NCEIT is eager to see the current form of this bill get a vote on the House floor and cross over to the Senate, or for the provisions of H772 to be rolled into the House version of S747 now in the House Elections Committee. We sincerely need passage of these poll observer provisions.
Warm Regards/
Jim Womack
President, North Carolina Election Integrity Team
www.nceit.org
Tel. (919) 770-4783