Jan 31, 2024, 4:08 PM (6 days ago)
Sir, today the North Carolina State Board of Elections managed to push through three temporary rules that were clearly beyond the scope of S747 (S.L. 2023-140) during today's Rules Review Commission hearing. All three rules were aimed at constraining (even challenging for arbitrary & capricious purposes) our poll observers, making it easy for discretionary dismissal of PO's from voting sites. They did this despite our strongest objections orally and in writing. Unfortunately, the RRC has little authority to address the qualitative aspects of these rules, and the NCSBE General Counsel exploits that technicality at every hearing, even sometimes reminding the RRC they have little or no authority to constrain what the agency does. This wanton exploitation of our election laws is disturbing and deserves aggressive action in olur legislature in the upcoming session.
I pray the NCGA will gird up for the short session and address the priority issues we have documented over the past year. S747 dealt with several, but we have a half dozen other loopholes or deficiencies in law that could easily be addressed if the will of our legislators were aligned. (During the 2023 long session, we experienced more movement in the Senate than we did in the House.)
We are presently drafting language that would go a long way towards closing some of the most exploited statutory loopholes. Beginning right after the March primary, we will make our subject matter experts available to you to provide that language, briefings, and documentary evidence to justify each proposed legislative change. I am confident we can make these proposals move in the Senate as well. (We have a couple of trusted legislators there as well.)
Please let us know if you can think of any special visits or presentations we might accomplish to improve our ability to strengthen election integrity in NC this session.
President, NC Election Integrity Team
Tel. (919) 770-4783
NCEIT'S OBJECTIONS TO THESE PROPOSED RULES FOR POLL OBSERVERS
Proposed Rule- 08 NCAC 20 .0101 (Challenge to the Appointment of an Observer)
*Inappropriately consolidates the challenge rule for Board of Election members and Judges into one rule instead of separate rules with unique procedures for each
* The rule fails to articulate what constitutes specific reasonable grounds for challenging a poll observer’s appointment as outlined in § 163-45.1 (f) of S.L. 2023-140.
* For a challenge hearing to follow due process and to comport with the intent of § 163-45.1 (c), the hearing must be convened in advance of the scheduled period of poll observation service.
*The rule fails to establish criterion for Boards of Election to use in adjudicating challenges and fails to indicate whether a unanimous vote or a majority vote is required to uphold the challenge.
* It seems appropriate for the NCSBE only to adjudicate appeals of challenges to state party- or statewide candidate-appointed poll observers. Appeals from county level are superfluous.
*The proposed rule lacks discussion of permanent or persistent challenge of a poll observer; nor are there any criteria for preventing a challenged poll observer from returning for poll observer duties on a subsequent day or at an alternative site during the same election cycle.
Proposed Rule- 08 NCAC 20 .0102 (Appeal of Removal of an Observer from a Voting Site)
*The removal of an appointed poll observer is a serious step that potentially leaves a party or candidate blind to the activities inside a voting enclosure.
*This rule should prescribe an escalation process that serves due process and maintains election integrity.
*The rule should first establish a process for an informal hearing by all three judges present to prevent partisan influence on the decision to expel an observer, short of law enforcement action (which is always an option at the discretion of the Chief Judge).
*The appointing authority should be noticed the poll observer has allegedly violated statutory guidelines and will be subject to an immediate informal hearing in or near the voting enclosure, away from the voting process.
* If all three judges at a precinct or early voting site concur that removal is the appropriate recourse, then the local appointing authority should be afforded the ability to replace the observer.
*If a ruling is not unanimous to remove an observer during the informal hearing, the observer should be allowed to remain on-site, subject to close observation by the judges.
* If a poll observer is removed during the hearing, a written record of the removal should be documented, signed off by all judges at the voting site, with a copy provided to the appointing authority.
* Appeals of a poll observer’s removal past beyond the informal hearing are fruitless in that the removal has already occurred and cannot be timely reversed.
*At early voting sites located within the local Election Office, where there are no judges present, the challenge of a poll observer should come from the Site Administrator, member of the Elections Office, or a member of the Board of Elections.
*In poll observer challenges at BOE Early Voting sites, the informal hearing should be adjudicated by the Site Administrator, a senior member of the Elections Office, and one member of the local Board of Elections, available on-call for such purposes.
*Nowhere in the statute is there discussion of the possibility for permanent or indefinite removal of a poll observer; nor are there any criteria in thye statute for preventing a removed poll observer from returning for poll observer duties on a subsequent day or at an alternative site during the same election cycle.
*The proposed rule should prescribe any criteria that would prevent a removed poll observer from being rescheduled for subsequent duties. (There is little doubt that candidates or political parties will seek to reinstate any removed poll observers as soon as possible. Volunteers are difficult to fund and recruit.)
*NCSBE should consider setting a threshold of “law enforcement action taken” or “conviction of election violation” as being standards for indefinite or permanent removal of a poll observer.
*Just because a person was challenged for removal on one occasion is not justified grounds for his removal for the duration of an election cycle. What if a person was removed because of the party's failure to be properly appoint him to serve the first time. Or what if a person is removed because of a disruptive hacking cough one day, but is healthy for his next scheduled suty?
Proposed Rule- 08 NCAC 20 .0103 (Identification of Observers)
*The statute clearly indicates the Chief Judge may use reasonable methods to verify the identity of individuals appearing at the voting place to serve as an observer; but the verification of identity process ends when the observer has produced a valid ID upon arrival.
*There should be no requirement for the poll observer to identify his or her name or political party in a manner visible to voters within the voting enclosure. Doing so makes the PO vulnerable to targeting by opposing partisans for political gain.
*This rule should be deleted as the statute is already clear that Poll Observers are to be identified only by their position or role in the voting enclosure- not by their name or political party.