The State Board of Elections (SBE) will hold a public hearing on July 31, 2017 to take public comment regarding proposed rules changes, and is accepting public comment online and by email through Monday, July 31 (see below for where to submit comments).
The SBE has proposed a bundle of administrative rules and many have problems. At least three of the new rules involve election protests and the citizens who file the protests. Remember in North Carolina, no one is monitoring our elections, not the SBE, not the police and not election investigators. It is up to the citizenry to detect and report election-related problems and even voter fraud. In fact, North Carolina General Statute 163 (NCGS 163), the election law, spells out how citizens go about safeguarding the election process. The law provides election protests and challenges as tools for North Carolina citizens to use if they see potential problems.
Let’s begin with new rule 08 NCAC 02.0111, which rewrites the election protest form. According to the SBE, the new form would: “clarify the standard of review, require a certification that the facts alleged are true and accurate, and require attorneys to indicate that they represent the protester, among other things.”
What the new form actually does is to limit election protests to those where the number of votes in question would be “sufficient in number to change the outcome of the election.” The new rules also add to the responsibilities of the protester to such an extent as to discourage election protests altogether. Worse still, the new rules essentially set the stage to criminalize citizens who lodge election protests.
Perhaps the most important and disturbing fact is that much of what is included in the new election protest form does not comport with North Carolina election law. In fact, many of these proposed rules seem to be in direct conflict with NCGS 163.
The proposed form limits election protests to those where there are enough questionable votes to change the outcome of the election. In fact, however, NCGS 163-182.10 (2)(d) makes it clear that a local board cannot immediately dismiss an election protest because the local results could not affect the outcome of an election if the election was a multicounty election.
NCGS 163-182.10 (2)(d) “There is substantial evidence to believe that a violation of the election law or other irregularity or misconduct did occur, and might have affected the outcome of the election, but the board is unable to finally determine the effect because the election was a multicounty election.” If the county board makes this conclusion, it shall order that the protest and the county board’s decision be sent to the State Board for action by it.
The SBE’s new election protest form also puts additional onus on the protester, including to “serve copies of all filings on every person with a direct stake in the outcome of this protest.” Imagine, you had discovered that more than 300 absentee voters in your county all included the same witness signature on their absentee ballot envelopes and the same handwriting appeared on the ballots, writing in a candidate’s name. The responsibility would be yours to notify (by mail) all 300 voters affected.
It gets worse, the new form requires the protester to contact the voter’s attorney (if they have one) and all these contacts must be initiated within one business day of filing the protest.
The proposed Election Protest Form is obviously one sided, putting a tremendous burden on the person initiating a challenge. The real impact is to discourage a protest from ever being filed. This new requirement, no doubt, is to discourage the average citizen from lodging a reasonable protest.
Additionally, the new election protest form includes the word “crime” two times. Both instances are directed at the person filing the protest and would be construed as a warning to the protester that if they do not prove their case they may be charged with a crime.
In the entire chapter of North Carolina’s election laws, NCGS 163, the word “crime” is used three times. Twice, in reference to felons who have lost their right to vote and once in describing a misdemeanor. The proposed wording on the elections protest form, developed supposedly by the SBOE’s “legal team,” would, no doubt, be helpful in future lawsuits brought against citizens who file election protests to identify and prevent voter fraud or other election misconduct.
But the new election protest form appears to have no basis in state law. It is another blatant attempt by SBE staff to discourage average citizens from protesting the election process.
Another new rule, 08 NCAC 02 .0114, gives the Director of the SBE and the Directors of all 100 county boards of elections the authority to dismiss a protest before it ever gets to the preliminary hearing.
Currently, NCGS 163 assures a voter who files an election protest will get a preliminary hearing before the county board members. NCGS 163-182.10 and NCGS 163-182.11 lays out the process and without confusion. In fact, the citizen who submits a protest has a right to a preliminary hearing according to NCGS 163-182.10.
Consideration of protest by county board of elections:
(a) Preliminary Consideration. – The following principles shall apply to the initial consideration of election protests by the county board of elections:
(1) The county board shall, as soon as possible after the protest is filed, meet to determine whether the protest substantially complies with G.S. 163-182.9 and whether it establishes probable cause to believe that a violation of election law or irregularity or misconduct has occurred. If the board determines that one or both requirements are not met, the board shall dismiss the protest. The board shall notify both the protester and the State Board of Elections. The protester may file an amended protest or may appeal to the State Board. If the board determines that both requirements are met, it shall schedule a hearing
This section of chapter 163 of the North Carolina General Statutes is easy to understand and does not appear to need interpretation or elaboration.
To give a state or a county employee authority to dismiss an election protest makes a mockery of our law.
This fact alone should move the General Assembly to stop the runaway SBE administrative staff.
The public hearing and acceptance of public comment for these rules may be more of a “dog and pony show” than a serious process. The SBE is without board members at this time and it would take a vote by the members of the board to adopt the new rules. After the legislature changed the make-up of the board, Gov. Cooper has refused to appoint new board members. The legislature changed the makeup of the board from five members to eight and made the board bipartisan, four members would be Republicans and four members Democrats. The matter is now in the courts as we continue to wait for Roy Cooper to finally appoint a new state board of elections.
Civitas has received, from the SBE, the public comments submitted thus far and, to no one’s surprise, they are apparently made up mostly of forms provided by Democracy NC, the leftist community organizing group headed by lobbyist Bob Hall. You know Democracy NC, they label anyone who suggests that all voters should show a voter ID to vote as racists and bigots.
We will not provide a form, but will encourage everyone to write an email to:
Tell the State Board of Elections’ Executive Director, Kim Strach, and the staff of the SBE that the current election statutes governing election protests are sufficient. The laws are clear and detailed where protests are concerned. Current law lays out all the responsibilities, not only for the protester, but also for the county boards of elections and the SBE as well.
Proposed rules and rule changes should only deal with areas where there is confusion, not try to rewrite the law by administrative action.
If you prefer to attend the public hearing and address the administrative staff:
Date: July 31, 2017
Location: NCSBE, 441 N. Harrington Street, Raleigh, NC 27603