by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
Observers are an essential part of ensuring transparency in our elections. States first enacted laws for election observers as part of Progressive Era reforms to “promote the integrity of the election process by providing practical deterrents against voter fraud and election official misconduct.”
Despite the importance of election observers, the law on their appointment and role in elections is overly broad and not always clear. Regulations from the North Carolina State Board of Elections (SBE) add more restrictions on their conduct but do nothing to clarify their rights or role in the election process. A bill moving through the General Assembly would provide that clarity.
One reason we need more clarity is the SBE’s recent history of trying to suppress election observers.
Under North Carolina law (G.S. § 163-45), political parties may appoint up to two location-specific observers to serve at any early voting site or precinct polling place at any one time. Those observers may “be relieved during the day of the primary or election after serving no less than four hours.” That means parties may appoint up to six observers on a typical day of early voting and eight on election day.
During the 2020 election, SBE General Council Katelyn Love issued guidance to county election directors that indicated parties could appoint only two precinct-specific observers per early voting location. Trump campaign attorney Heather Ford called Love and asked her to clarify the SBE rule on observers:
Ford picked up the phone and called the policy’s author, Kaitlyn [sic] Love and fought to resolve the problem. She finally had to read the law aloud to Love in order to sway her.
Love issued a correction in another email to election directors stating that the party’s lists of observers may “contain more than two names” per early voting location (see page two).
In 2021, the SBE sought to use rulemaking to change the maximum number of voting place–specific observers from two every four hours to two per day, in contradiction of state law (see page 10 of 26 of those proposed rules). The SBE persisted in that attempt until a public hearing in which Love was confronted with broad condemnation of the proposal, including threats of lawsuits, forcing them to back down.
The SBE tried a different method to limit observers in 2022 when they attempted to make several changes to regulations to limit who could serve as observers and restrict the ability of observers to perform their duties. Those changes went far beyond anything in state law. The Rules Review Commission rejected the changes, but, as with their attempt to limit the number of observers, there is no guarantee that the SBE will not try again.
Current law on the rights of observers and restrictions on what they may do is broad and general (G.S. § 163-45.(c)):
An observer shall do no electioneering at the voting place, and shall in no manner impede the voting process or interfere or communicate with or observe any voter in casting a ballot, but, subject to these restrictions, the chief judge and judges of elections shall permit the observer to make such observation and take such notes as the observer may desire.
(“Observe any voter in casting a ballot” here means seeing how a voter marked the ballot.)
The SBE partially fills in the details with its regulations (08 NCAC 20 .0101). It does nothing to refine what the law says are the rights and duties of observers. It expands on “prohibited conduct” that may be grounds for election officials to expel observers by noting other election laws, such as prohibiting photographing voters in G.S. § 163-166.3.(b).
So what does it mean that an observer must be able to “make such observation and take such notes” as they may desire? The lack of a clear answer means that election officials must fill in the gaps on their own, increasing the chance of conflict between officials and observers in local voting places.
A bill advancing in the General Assembly would provide some much-needed clarity to laws governing observers.
House Bill 772, “Poll Observer Appointments, Access & Activity,” would update state law on observers. It would clarify what they may or may not do in voting enclosures to better balance the right of observers to perform their duties with the need for election officials to administrate voting effectively. It is sponsored by Representatives Ted Davis, Jr. (R–New Hanover), George Cleveland (R–Onslow), Grey Mills (R–Iredell), and Harry Warren (R–Rowan).
The proposed additions to state law in the text of HB 772 (first edition) are divided into three broad categories:
The bill would refine the space between allowing an observer to “make such observation … as the observer may desire” and ensuring the observer “shall in no manner impede the voting process” in current law. For example, the bill would spell out that observers can “move freely around the voting enclosure” but must remain “5 feet or greater” from registration or ballot tables, tabulation machines during voting, and vehicle compartments during curbside voting.
It also would clarify that observers are “authorized to hear conversations between poll workers and voters” but reaffirm that they may not speak with voters.
See the bill summary for a fuller description of the numerous clarifications in HB 772.
Even if the bill were to pass, there would still be a need for some local application and interpretation. For example, observers would have free reign in some of the larger, more cavernous voting locations, such as gyms and church fellowship halls. In contrast, they would have to work with officials on acceptable procedures for moving about some of the smaller precinct polling places.
Even with that caveat, HB 772 would be a welcome step in the right direction.