by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
This article is Part Two of a series highlighting the findings from a forthcoming report from the Civitas Center for Public Integrity at the John Locke Foundation, “What Happened In 2020? How 2020 Altered North Carolina Elections and What We Can Do to Fix It.” Part One covered several North Carolina State Board of Elections (SBE) actions that undermined election security. Part Three will examine the surge of mail voting in 2020. Part Four will review voting irregularities, post-election audits, and what those audits do not cover.
The SBE worked to suppress election observers and limit transparency in 2020, a pattern of behavior that continues today. There was also a problem with county elections boards limiting transparency by restricting what observers and other members of the public could see. Again, that problem persists.
Election observers are appointed by the major parties to watch over the election process at early voting and election day sites and report any irregularities they see in the process to party officials.
North Carolina law states that two local party-appointed election observers can serve simultaneously and be relieved every four hours (GS 163-45(a)). That means each party may designate up to six precinct-specific observers during a typical 11-hour weekday of early voting.
Despite that, SBE General Counsel Katelyn Love instructed local election officials in 2020 that “the Chair of each political party in a county may designate two precinct-specific observers to attend each one-stop site.” That instruction meant county parties could appoint only two observers per day per early voting site, not the six allowed by state law.
County election boards followed Love’s policy until she received pushback from Heather Ford, an attorney hired by the Trump campaign. At one point, Ford called Love and “finally had to read the law aloud to Love in order to sway her.” Love finally relented under that pressure and, on October 29, 2020, issued new guidance that followed the law on election observers, but which was too late for the early voting period.
County elections boards in 2020 also suppressed observers and limited the ability of the public to know how the election was being conducted.
State regulations require every election board to conduct “logic and accuracy” testing on each of its voting systems (ballot marking devices and tabulators) before elections to “ensure that the system is operational and has been programmed to count votes accurately.” Those regulations also require that “any interested person may observe the testing of the voting system.” However, reports indicate that the Durham, Guilford, and Wake elections boards failed to notify the public and or did not give them sufficient access to make meaningful observations of the tests.
Wake, the most populous county in North Carolina, also imposed several undue restrictions that limited the transparency of the election.
The Wake County Board of Elections banned members of the public from observing the opening procedures at early voting sites. In one instance, a poll observer pushed an election official who was blocking access at one location in Wake County. The observer was later cited for misdemeanor assault.
The Wake County Board also barred members of the public from seeing and photographing tabulation tapes for early and absentee ballots after polls closed on election night. That likely broke North Carolina law, which states, “Any member of the public wishing to witness the vote count at any level shall be allowed to do so.”
Unfortunately, the election boards have persisted in their battle against observers.
Incredibly, Love and the SBE tried again in 2021 to restrict the number of local election observers to two per day instead of the two every four hours as permitted by state law. Rather than making the change by fiat as they did in 2020, they tried to impose the restriction through a change in regulations. They gave up on the attempt only after a barrage of public opposition, including threats of lawsuits, let them know that they would not be able to impose those restrictions without a fight.
The SBE also failed to restrict what election observers can do, but not for lack of trying. Despite public testimony against the restrictions, they continued pushing them until the North Carolina Rules Review Commission found that the changes were inappropriate under state law.
Nor is there any indication that Wake — or other counties — have committed to greater transparency by permitting observers and members of the public fuller access to early voting opening procedures.
The good news is that attempts by the SBE to further limit transparency by restricting election observers have so far largely failed. Concerned citizens and political activists must remain ready to defeat future attempts.
The restrictions on election observers imposed by county boards of election, particularly on observing the opening and closing procedures at one-stop early voting sites, will likely have to be addressed through legislation. The General Assembly must clarify that the public has a right to know how our elections are being conducted.