On May 11, I noted that the State Board of Elections (SBE) was proposing to expand the emergency powers of SBE Executive Director Karen Brinson Bell and that she “may be tempted to use her powers to get by fiat” what she could not persuade the General Assembly to give her in terms of changes to election law ahead of this fall’s general election.
Since then, the SBE has modified its proposed rule changes in its report to the NC Rules Review Commission (RRC), adding a new section to the proposed change that was not made available to the public before or during an April 20 public hearing on the changes (here is the original proposed rule change for comparison). That new section includes this gem (section d on page 6 of the report to the RRC):
(d) Emergency powers exercised pursuant G.S. 163-27.1 may include, but are not limited to, the following: …. (2) Delaying or modifying statutory and administrative deadlines at the county and State level, including the dates set for the county and State canvass under G.S. 163-182.5, the deadline to complete and report the sorting of ballots by precinct as required by G.S. 163-132.5G, the voter registration deadline under G.S. 163-82.6(d), and the deadline for receipt of postmarked absentee by-mail ballots under G.S. 163-231(b)
So, the SBE is seeking the power to negate election law on, among other things:
- The time when the SBE must officially canvass election results (currently set at 21-31 days after election day)
- The deadline for voter registration (currently set at 25 days before the election)
- The deadline for accepting mailed ballots (currently must be postmarked by election day and received no later than three days after election day)
There are other problems with the specific language of the proposal, but a bigger concern, in the context of the current coronavirus emergency declaration (which Gov. Roy Cooper could officially maintain well into next year even as business gets back to normal over the coming weeks), is that this proposed rule change gives the SBE executive director the power to toss aside election law virtually at will for an extensive period of time.
In seeking the power to suspend or ignore election law for the November 3 election, the SBE is also ignoring its own emergency regulations, which state that the executive director shall consider “sufficiency of time remaining for the General Assembly and the Governor to adopt emergency legislation addressing the disruption” (page two, line 4). The General Assembly is currently in session. There clearly is sufficient time for the General Assembly to adopt emergency legislation in time for this fall’s election if legislators believe it is appropriate to do so. If the General Assembly does not approve of most of the requests in Brinson Bell’s April 22 memo, that does not give her carte blanche to unilaterally toss aside voting law and institute her wish list on her own.
The proposed rule change is overly broad in the context of the coronavirus emergency declaration. It is also not reasonably necessary to implement or interpret an enactment of the General Assembly, as stated in 150B-21.9 of the Administrative Procedure Act, since the SBE has plenty of time to seek clarifications from the General Assembly before the November 3 election.
The RRC should reject the SBE’s rule change request at its May 21 meeting.
What you can do: You can submit comments and objections to the Rules Review Commission at email@example.com before its May 21 meeting. Specify that you are referring to 08 NCAC 01 .0106 Emergency Powers of Executive Director.
UPDATE: The Rules Review Commission rejected the SBE’s proposed rule changes on May 21.