by Dr. Andy Jackson
Director of the Civitas Center for Public Integrity, John Locke Foundation
The North Carolina State Board of Elections (SBE) has proposed several changes to regulatory rules for election observers. They range from innocuous rule clarifications to changes that would serve to harass election observers and deplete their numbers.
The first set of proposed rules changes is to 08 NCAC 20 .0101, the section on election observers (hereafter simply “observers”). The biggest changes are to rules about submitting lists of observers to precinct officials. Essentially, county party leaders must give early voting and election day precinct officials at least five days’ written notice of changes to the list of observers.
It also includes a necessary and welcome change to rules about observers leaving the voting area (bold is added to the rules, struckthrough is removed):
An observer who repeatedly exits and reenters
leavesthe voting place for any reasonmay be prohibitedremoved from observering [sic] at the voting location by the chief judge from returningif the observer’s return would causeconduct is causing a disruption in the voting enclosure.
Observers sometimes need to leave the voting place to perform their duties. For example, they may have to step outside to observe curbside voting. As we will see later, however, another proposed change in the rules could make this positive change moot.
The other set of proposed changes, to 08 NCAC 10B .0101 on the tasks and duties of election officials at voting places, is similarly banal. It clarifies, for example, that election officials may not tamper with voting equipment or allow others to do so. It also specifies that officials at early voting locations are bound by the same restrictions that bind election day precinct officials.
The changes to the section on election officials include bans on several activities. Among other things, election officials may not (page 7):
Engage in any political activities as prohibited in G.S. 163-41(e) between the start of one-stop early voting and 11:59 p.m. on Election Day during the election in which a precinct official is serving.
The “political activities” prohibited in GS 163-41(e) state that election officials swear no to “in any manner request or seek to persuade or induce any voter to vote for or against any particular candidate or proposition.” While we certainly do not want election officials to display obvious biases to the public, its application here may be problematic.
While most precinct judges take their oaths well before the start of early voting, GS 163-41(e) specifies that election assistants take their oath “before the opening of the polls on the morning of the primary or election.” This suggests that the intent of the law is for election judges to refrain from political activities during the entire election period but for assistants to be similar bound only while they are actually engaged as election officials. There may also be a problem with binding assistants to an oath before they take it.
The proposed changes to election observer rules include elements that go beyond what is required or permitted by law and look designed to restrict both the number of observers party leaders can appoint and the ability of observers to perform their legal duties.
First, the proposed change would ban observers from “using doors designated for precinct officials or one-stop workers.” A first glance, this seems just unnecessarily petty. There are two reasons this proposal is not only petty but also potentially disruptive:
Second, SBE regulations that already go beyond state law in limiting observers will become even more onerous.
Current election regulations state that “no person who serves as an observer or runner in a primary or general election may serve as a precinct official or one-stop election official in that primary or that general election.”
That restriction goes beyond anything required by state law. GS 163-41.(b) prohibits the following from serving as election officials:
(Delegates to political party conventions are specifically exempt from that restriction.)
There is no inherent conflict with someone, for example, serving as an election observer during the early voting period and then serving as a precinct official on election day. That is especially true when you consider precinct election officials are nominated to their positions by political party leaders (GS 163-41.(c) and 163-42.(b))
The proposed changes would go even further, stating:
No person who is a parent, parent in-law, spouse, child, child in-law, sibling, or sibling in-law of a precinct official or one-stop election official may serve as an observer or runner in that primary or that general election.
The proposal would also go beyond state law. The law allows near relatives to serve as election officials as long as they do not serve in the same precinct (GS 163-41.1), meaning that familial restrictions on who can serve as an observer would be more stringent than those on who can serve as an election official.
A final problematic rule change is on page three of the proposed rule changes for observers. It states that election judges will have the power to kick out observers who leave an:
area designated for observers by the county board of elections, provided the area designated allows the observer to observe each part of the voting process except for the marking ofballots
That goes beyond any restrictions on observers authorized by state law. GS 163-45.(c) states that observers may not conduct electioneering, “impede the voting process or interfere or communicate with or observe any voter in casting a ballot,” but otherwise, “the chief judge and judges of elections shall permit the observer to make such observation and take such notes as the observer may desire.”
Again, the law states that an observer has the right to “make such observation and take such notes as the observer may desire.” Observers have the right to move within the voting area as long as it does not impede the act of voting. That freedom of movement is especially important in some of the larger early voting areas.
The proposed election rule changes would place an onerous burden on observers seeking to do their jobs and on the ability of the political parties to recruit observers.
The public comment period for the proposed rule changes is until August 8. There are three ways you can share your opinion with the State Board of Elections:
You can also virtually attend the State Board of Election’s hearing on the rules changes on Thursday, July 28, starting at 10:00 AM. You can sign in through Webex or dial 1-415-655-0003 and enter the following code: 2422 789 8391#