Below is my public comment on the North Carolina State Board of Elections’ proposed voter ID rules. A link to the proposed rules is below the comment. You can submit your comment on the rules through that link through January 16.

I am writing in regard to 08 NCAC 17 .0101, Verification of Photo Identification During In-Person Voting, and 08 NCAC 17 .0109, Photo Identification for Absentee-by-Mail Ballots.

There is a problem with 08 NCAC 17 .0101 (e) (1), the procedure for county boards to review provisional ballots of those whom election judges unanimously found that the photo appearing on the photo identification does not bear a reasonable resemblance to the person presenting to vote:

If the voter has completed the affidavit as required in G.S. 163-166.16(d) and is otherwise eligible to vote, the county board shall count the provisional ballot unless the county board unanimously finds that the affidavit is false.

That requirement is at odds with state law. G.S. 163-166.16 (f) states:

If the county board of elections determines that the registered voter voted a provisional ballot only due to the inability to provide proof of identification and the required affidavit required in subsection (d) of this section is submitted, the county board of elections shall find that the provisional ballot is valid unless the county board has grounds to believe the affidavit is false.

The unanimity requirement in the rule would put county boards in violation of state law if they, through a majority vote, have found grounds to believe an affidavit is false yet approve the affidavit and accept the provisional ballot as valid.

The unanimity requirement is counter to the intent of the General Assembly when they wrote the voter ID implementation law. Compare G.S. 163-166.16 (f) with G.S. 163-166.16 (b), which states that a person presenting to vote shall be allowed to vote unless “the judges of election present unanimously agree that the photo identification presented does not bear a reasonable resemblance to that voter.” The law already specifies when unanimity is required and when it is not.

There is a similar divergence from state law in 08 NCAC 17 .0109 (c) (2):

If the voter has completed an affidavit claiming an exception to the identification requirement pursuant to G.S. 163-166.16(d), and is otherwise eligible to vote, the county board may reject that person’s ballot only if the county board unanimously finds that the affidavit is false.

Again, the unanimity requirement would put county boards in violation of state law if they, through a majority vote, have found grounds to believe an affidavit is false and yet approve the affidavit and accept the provisional ballot as valid.

I urge the board to adjust those sections of the proposed rules to bring them in compliance with state law.

What You Can Do

The SBE is taking public comments on the proposed voter ID regulations through Jan. 16, 2024. There are three ways you can send them your comments:

As I have previously noted, public input can be an important part of the rulemaking process. The SBE reversed course in 2021 after public pushback on its proposal to illegally suppress election observers.