NCEIT Team Commentary on NCSBE Proposal for Temporary Rulemaking
SUBJECT: NCEIT Response to NCSBE Proposed Temporary Rulemaking – July 2022
Background: During the NCSBE’s July 14, 2022 monthly meeting Attorney Katelyn Love announced agency plans to pursue temporary rulemaking under the provisions of “NCGS § 150B-21.1 Procedures for adopting a temporary rule.” The recorded meeting is at the link below and the discussion pertaining to temporary rulemaking begins at 1:03:00 of the meeting: https://s3.amazonaws.com/dl.ncsbe.gov/State_Board_Meeting_Docs/2022-07-14/State%20Board%20of%20Elections%20Meeting-20220714%201332-1.mp4
Ms. Love explained that temporary rulemaking was necessary because the process for following the more traditional, formal rulemaking procedures under the Administrative Procedures Act were “too lengthy” to be in place in time for the November 2022 election cycle. She advised the state board that the NCSBE has authority to exercise temporary rulemaking, inferring authority under paragraph (a)(11), wherein the NCSBE has been granted authority to implement provisions of federal or state law where it has been granted statutory authority to adopt such rules. NCSBE’s proposed temporary rules pertain to two specific areas of election law: (a) 08 NCAC 10B .0101, TASKS AND DUTIES OF PRECINCT OFFICIALS AT VOTING PLACES; and (b) 08 NCAC 20 .0101, ELECTION OBSERVERS.
Public Hearing & Opportunity for Public Comment: NCSBE has announced it will accept public comments now through August 8, 2022 at its portal, by email or by mail.
- Mail: Attn: Rulemaking Coordinator, 6400 Mail Service Center, Raleigh, NC 27603-1362
Public hearing: A virtual public hearing will be held at 10 a.m. Thursday, July 28, 2022. How to join:
NCEIT Position on NCSBE Proposed Temporary Rulemaking: The NCEIT team objects to the NCSBE’s proposed temporary rulemaking to implement modified rules at 08 NCAC 10B .0101 and 08 NCAC 20 .0101. NCEIT recommends the Rules Review Commission reject this attempt to circumvent formal rulemaking, reasonable opportunity for public comment, and due consideration of those comments, followed by NCGA adoption of rules. Formal rulemaking is necessary to avoid negatively impacting the transparency and integrity of the November 2022 general election. As admitted by NCSBE counsel during the meeting, many of the proposed new rules are “…already addressed in other provisions of law….” Moreover, several of the newly proposed rules are contortions of existing administrative code and state statutes that were intended to make our elections more transparent, yielding stronger voter confidence in our elections. The proposed modifications induce ambiguity and reduce the broad accessibility by poll observers and election officials, conferred by statute, that were to be applied to all phases of the voting process. The changes represent controversial and unnecessary deviations that will generate confusion among poll observers and election officials given such short notice prior to the fall election cycle.
Facts: (Note- NCEIT Members are welcome to use the following facts as the basis of their commentary or inputs to the NCSBE. Please paraphrase any use of these comments so your inputs will be given deliberate consideration and equal treatment as substantive input for them to consider. Verbatim duplicate comments are typically lumped together for easy addressment by the agency.)
1. The NCSBE does not have clear statutory justification for temporary rulemaking, as proposed.
a. NCGS § 150B-21.1 addresses the context and applicability for temporary rulemaking. Only the most contorted logic could justify the use of the provision for temporary rulemaking merely to avoid the more onerous task of formal rulemaking. Yet, this was the suggested justification by NCSBE Counsel between 1:03:36 and 1:04:11 of the recorded meeting. This chapter of the NCGS clearly states, under (a) Adoption, that “…an agency may adopt a temporary rule when it finds that adherence to the notice and hearing requirements of G.S. 150-B-21.2 would be contrary to the public interest and that immediate adoption of the rule is required.…” (my emphasis added to show context). Frankly, none of the NCSBE proposed rule modifications are urgent or necessary to conduct a free and fair election this November. The public has a definite interest in formally digesting, debating and deliberating the proposed rule modifications prior to their adoption in whole or in part. That can only be accomplished through formal rulemaking procedures.
b. When advocating for these temporary rule changes before the NCSBE on July 14, 2022 (1:06:44 of the recorded meeting) NCSBE Attorney Love admitted that “by and large, most of what is listed as prohibited is already addressed in other provisions of law….” In other words, the NCSBE acknowledges many of the proposed rule changes are already codified; therefore, not urgent or even necessary to conduct a free and fair election in November.
c. Under (a)(11) of NCGS § 150B-21.1, there are generally three allowances for NCSBE temporary rulemaking- (1) IAW G.S. 163-22.2, to respond to declaration of unconstitutionality or the invalidation of any portion of Chapter 163; (2) to implement state or federal law where authorized by the NCGA; and/or (3) a compelling need for the rule to become effective immediately to preserve the integrity of an upcoming election. None of these three provisions apply to the present situation. There is no current constitutional challenge to our election laws, nor is there a recent invalidation of Chapter 163. NCSBE has already undergone codification of procedures to implement rules for Poll Observers and Election Officials. No new statutory provisions require immediate NCSBE rulemaking. And finally, the proposed new rules are not compelling—some are simple clarifications, others are redundant with existing provisions of law, and still others are more restrictive than requirements enumerated in the general statutes, making them inconsistent with legislative intent.
2. Statutory guidelines in NCGS § 163 and historical rulemaking to implement the statute (Title 08 NCAC) unambiguously reflect legislative intent for the presence of Poll Observers and their generally unrestricted access within all polling locations for the purpose of monitoring registration desk operations, observing all ballot handling operations, challenging ineligible or unauthorized voters, and ensuring election officials are performing their duties in accordance with state law and relevant administrative code. Legislative intent is that Poll Observers should be free to move about the voting enclosure in the performance of their duties so long as they do not obstruct voting or become a distraction to those who are voting there. The three consistent statutory constraints imposed on Poll Observers are: (a) that they must not view confidential voter information (such as SSN or date of birth); (b) they must not observe the actual markings on voter ballots; and (c) they must not interfere with the voting process. These proposed temporary rules clearly and more severely restrict Poll Observers from performing their duties as prescribed under NCGS § 163.
a. 08 NCAC 20 .0101 (c) is modified to limit access and egress of Poll Observers at the voting enclosure. This runs counter to legislative intent for Poll Observers to observe both inside and outside the voting enclosure. Implementation of this rule would subject the observer to the idiosyncrasies of the Site Administrator or Chief Judge in determining whether movement in and out of the voting enclosure is a “disruption.” Clearly, Poll Observers must be able to depart the voting enclosure to monitor curbside voting when applicable and to make or take important phone calls without disrupting voting operations. Chief Judges and site administrators must not be in a position of imposing arbitrary and capricious standards for movement by poll observers in the execution of their tasks and functions, or for having discretionary authority to remove a Poll Observer from the voting enclosure if the only “disruption” is the frequency of Poll Observer movement in and out of the voting enclosure.
b. 08 NCAC 20 .0101 (d)(3) exacerbates an already ambiguous rule for “interfering with the privacy of a voter…” The proper positioning of an observer to adequately monitor voting activities within the voting enclosure is constrained by numerous factors including space available in the enclosure, sound (and acoustic) constraints in the enclosure, and configuration of the tables and equipment in the enclosure. Moreover, observers cannot communicate with or compel election staff not to expose confidential voter information from view. The prohibition in this rule ought to be clearly defined by specific distance (no closer than 6 feet, for example) or simply to say Poll Observers are prohibited from viewing confidential voter data. Arbitrary, discretionary, and ambiguous terminology like the language in (d)(3) lead to Poll Observer confusion and unnecessary challenges within the voting enclosure, which could potentially lead to disruption of voting activity.
c. 08 NCAC 20 .0101 (d)(9) is clearly inconsistent with Chapter 163 of the NCGS in that it imposes non-statutory restrictions on movement and methods for Poll Observers. Observers must be able to make expeditious entry and exit from the voting enclosure as their duties require. They must have the same latitude for movement that precinct and site officials have to adequately monitor election operations. Restricting Poll Observers to use of the same doorways that voters are limited to could cause “disruption” in the voting lines and prevent timely Poll Observer monitoring of voting activity.
d. 08 NCAC 20 .0101(d)(10) incorrectly presumes that Site Administrators or Precinct Chief Judges are authorized to designate an area for Poll Observers to operate from. Chapter 163 of the NCGS does not authorize precinct or site officials to designate areas for poll observers to operate from. Instead, the statutes clearly and specifically delineate what Poll Observers are not permitted to observe- essentially, confidential voter information and the markings on a ballot. This proposed rule has no basis in statute and is ambiguous at best. It serves only to grant precinct or site officials authority not envisioned in the general statutes to arbitrarily restrict the positioning and range of operations for Poll Observers.
e. 08 NCAC 20 .0101(d)(11) is vague and ambiguous. It does not meaningfully contribute to the good order and discipline in the voting enclosure. The words “Distributing or posting any written material in the voting enclosure” can be wildly interpreted to include carrying a clipboard with printed materials on it, or wearing a badge informing all persons present that the person is a Poll Observer, or wearing a shirt with the U.S. Constitution printed on it. There is no need for such a rule when Poll Observers are already prohibited from making contact with voters and staff and because they are prohibited from wearing or distributing campaign materials or electioneering in (d)(1).
f. No where in Chapter 08 of NCAC is there an adequate or complete list of terms and definitions for voting and election-related rules. This omission is a serious NCSBE deficiency that mitigates against temporary rulemaking. Proposed new temporary rules in 08 NCAC 20 .0101 use undefined and ambiguous terms like “disruption,” “posting written materials,” and “positioning themselves so close…” NCSBE is in serious need for formal rulemaking to replace the now-expired lists of terms and definitions used throughout their rules in Chapter 08 of the NCAC.
3. Statutory guidelines in NCGS § 163 and the existing rules under 08 NCAC 10B .0101 were adequate for managing the upcoming election cycle, without clarification. Subparagraphs (a) through (g) are substantially unchanged. However, the NCSBE proposal to add Subparagraph (h) “Prohibited acts by precinct officials” is fatally flawed- likely to generate more confusion and disruption to the voting process than it eliminates. All twelve proposed “prohibited acts” have serious flaws in construction, definition, scope, or practicality. Most of these rules were already addressed through “other provisions of law” as Attorney Love so astutely pointed out in her presentation before the board on July 14, 2022.
a. 08 NCAC 10B .0101 (h)(1) introduces a new, undefined term “tampering,” as in “tampering with voting equipment.” It must be recognized that precinct officials have a duty to configure, operate, and manage the operations of election equipment. Any mistake in performing those duties could be construed to mean “tampering.” If the NCSBE perceives there to be a risk from criminal manipulation of a voting machine, then perhaps the term “tampering” should be clearly defined in the NCAC and uniformly applied to anyone who might have access to a voting machine, including voters, election staff, the company producing the machine, Poll Observers, and anyone coming in contact with a voting machine.
b. 08 NCAC 10B .0101 (h)(2) introduces the newly prohibited concept of “permitting unauthorized access to voting facilities or equipment.” There is no accompanying definition for the meaning of “unauthorized access” to frame this rule. The language could be interpreted to mean unauthorized access to the voting facility by voters, unauthorized contractor access to equipment, unauthorized staff contact with machines, and myriad other improper activities. This rule is not needed to enumerate duties and responsibilities for precinct officials as they already are outlined in (a) through (g) of this ruleset.
c. 08 NCAC 10B (h)(3) introduces the notion of “intent” into the rules for prohibited activity. Intent presumes a knowledge of the state of mind of a precinct official, which is problematic short a declaratory statement from the precinct official about his or her intent. Precinct officials are expected to facilitate legal and permissible voting as defined in (a) through (g) of the tasks and duties of precinct officials. Ambiguous statements about willful or intentional behavior serve only to confuse officials and voters. Note- it should be prohibited activity for any precinct official to improperly or impermissibly interfere with, delay or prevent any voter from casting a ballot, regardless of intent. As such, this rule is a solution in search of a problem.
d. 08 NCAC 10B (h)(4) seeks to outlaw precinct official oral and written communications that might be interpreted to be “political” in nature. “Political views” run the gamut of values, beliefs, policies, governmental preferences, and cultural predispositions. Attempts to regulate the broad category of “political views,” and specifically prohibiting speech about political views, are dangerously close to infringement on one’s First Amendment right to free speech. Best this rule be eliminated to avoid confusion or constitutional challenge. While not recommended as a substitute, expressions of “partisanship” or “political party preference” are far superior standards for prejudicial speech to be discouraged among election officials in the voting enclosure.
e. 08 NCAC 10B (h)(5) prohibits precinct officials from missing training, creating an unnecessary, redundant rule. Precinct officials are already required to attend training by their respective county boards of elections as expressed in 08 NCAC 13 .0103 Training and Certification of Team Members and in NCAC 04 .0305 Instruction of Precinct Officials and Voters in the Use of Voting Systems.
f. 08 NCAC 10B (h)(6) disallows some precinct officials from following the instructions of others. The rule misapplies the term “lawful instructions” in attempting to establish a standard of performance for election officials. While instructions from some officials may be “lawful,” neglecting to follow those instructions or ignoring those instructions is not necessarily a violation within NCGS § 163. For example, the Chief Judge is statutorily responsible for managing his or her precinct on election day. Lawful instructions from a local Board of Elections member for the Chief Judge to perform one or more tasks at that facility – tasks that might also prevent the Chief Judge from adequately administering the election at the site – may have to be ignored or challenged by that judge. The Chief Judge is sovereign at that precinct and should be responsible for executing the duties and responsibilities of the Chief Judge, even if it means lack of conformity with some “lawful” instructions from the local BOE.
g. 08 NCAC 10B (h)(7) again invokes the concept of “intent” into the rules. As stated above, “intent” is not a reasonable standard for these rules. Moreover, the notion of intent generates confusion about the issue of “providing inaccurate information.” Is it impermissible for a precinct official to unintentionally provide inaccurate information about election administration; or is it only impermissible to provide inaccurate information intentionally? This rule is unnecessary in that NCGS § 163 and 08 NCAC 10B (b) through (g) already establish duties and responsibilities for precinct officials, including the imperative for providing accurate information and reports.
h. 08 NCAC 10B (h)(8) essentially states precinct officials are prohibited from breaking any rules. It is an unnecessary statement of the obvious. Moreover, this rule causes confusion by including the amorphous term “policies” among the specified items precinct officials must follow or adhere to. This rule does not clarify what the precinct official is to do when local election or voting “policy” interferes with requirements in NCGS § 163.
i. 08 NCAC 10B (h)(9) again invokes the concept of “intent” with respect to reporting incidents. As stated earlier, “intent” ought not be applied to these rules as the standard of “intent” cannot easily or reliably be determined. Moreover, a precinct officer may choose not to report minor incidents, with little or no consequence for election administration, to higher authority. NCGS § 163 is silent on many aspects of election reporting requirements and standards and does not suggest rulemaking to apply “intent” as a standard for precinct officer behavior.
j. 08 NCAC 10B (h)(10) introduces unclear terms and conditions in the regulation of prohibited information sharing. “Confidential voter information” is not defined in NCGS § 163 or 08 NCAC. “Confidential information on security features of voting equipment or voting facilities” is not clearly understandable. The term “non-elections officials” in this context is presumed to be everyone not classified as an election official by statute; but this too isn’t defined or clear.
k. 08 NCAC 10B (h)(11) prohibits voter discrimination among a host of categories. This rule is unnecessary because state and federal laws already prohibit voter discrimination in all these enumerated areas. Rulemaking is not necessary.
l. 08 NCAC 10B (h)(12) cross references to NCGS § 163-41(e) in prohibiting engagement in otherwise certain “political activities” on the part of precinct officials from the start of early voting until the end of election day. NCGS § 163-41(e). This prohibition is not needed because the statute already requires administration of the oath acknowledging the precinct official will not engage in those specified “political activities.” The rule is unnecessary because it is redundant with the statute.
m. As stated in paragraph 2.f. above, the absence of a comprehensive set of terms and definitions by NCSBE causes the proposed rules in 08 NCAC 10B (h) to be vague and ambiguous. Before developing any new rules for voting and elections, NCSBE ought to be compelled to perform formal rulemaking for the expressed purpose of developing terms and definitions that can be used to properly interpret and apply its rules across all of 08 NCAC.
James K. Womack
President, North Carolina Election Integrity Team
www.NCEIT.org
Tel. (919) 770-4783
