The Center for Election Confidence (CEC) submitted four comments urging the North Carolina State Board of Elections (NCSBE) to adopt several proposed rules adding a new chapter of Title 8 of the state Administrative Code relating to voter roll list maintenance on the basis of citizenship status.
CEC’s comments made recommendations regarding the following proposed rules:
08 NCAC 23 .0101: Definitions
08 NCAC 23 .0102: Entry of Challenge
08 NCAC 23 .0103: Preliminary Challenge
08 NCAC 23 .0104: Challenge Hearing
In all four comments, CEC recommends that clarification of the applicability of these sections to challenges filed on Primary Day or Election Day. If these sections do not apply to such challenges, a separate rulemaking should take place to promulgate similar rules.
Proposed 08 NCAC 23 .0101: Definitions
Overall, CEC finds the definitions included in the proposed 08 NCAC 23 .0101 to be “well-drafted, concise, and clear, represent the State Board’s practical and fair-minded approach to voter list maintenance, and accurately reflect the substantive requirements of North Carolina statutory law.” Adjustments are recommended to the definitions of Director of Elections, Documentation of Citizenship, and Presumptive Noncitizen to provide further clarity.
Proposed 08 NCAC 23 .0102: Entry of Challenge
CEC urges the NCSBE to make a number of clarifying changes to the proposed 08 NCAC 23 .0102. First, the challenge form’s required statement should be amended to reflect that the NCSBE “may become aware of an individual’s status as a non-citizen including through means not enumerated in G.S. § 163-82.14 (c1), such as the challenge process”, as well as language noting that the county board has also engaged in a “review [of] the county board’s records to determine if the presumptive noncitizen has previously provided documentation of citizenship.” Furthermore, the public availability of information regarding the challenge filing should be clarified.
Proposed 08 NCAC 23 .0103: Preliminary Challenge
Regarding preliminary hearings, CEC draws attention to a potential conflict between the proposed rule and G.S. § 163-85:
With respect to preliminary hearings, the proposed rule holds that “the official entering the challenge shall not be required to present sworn testimony”, yet G.S. § 163-85 requires that the relevant county board of election “take such testimony under oath”. It is not clear that G.S. § 163-85 or other sections allow for a distinction between an “official entering a challenge” (emphasis added) and a person “challeng[ing] the right of any person to register, remain registered or vote in such primary.” The proposed rule seems to treat the official’s actions as ministerial, yet the underlying statute appears to require some person to file a challenge to initiate the review process: sua sponte “challenges” do not appear to receive different treatment or follow separate rules.
If the two provisions identified here are not in conflict, CEC recommends that the NCSBE clarify the language in the proposed rule. However, if the two provisions are determined to be in conflict, CEC urges the NCSBE to remove the offending provision from the proposed rule in deference to G.S. §163-85, which controls.
08 NCAC 23 .0104: Challenge Hearing
First, CEC identifies a potential conflict between the proposed rule and statutory requirements relating to notice for voter challenges. CEC recommends that the NCSBE clarify the proposed rule to acknowledge differences between the date requirement in the application statute (G.S. § 163-86 (b)) and the rule. Furthermore, the proposed rule should be clarified to explain how the differing notice requirements function together. This includes a description of how “the proposed rule’s date requirement would function with respect to challenges filed pursuant to G.S. § 163.87, for which a voter may already be present and the timing of which would not generally allow for a 10-day notice window.”
Second, CEC recommends that any written decisions regarding voter challenges should be included at least in the non-public version of a voter’s official record of registration. This policy would promote voter confidence, election integrity, and government efficiency.
The Center for Election Confidence urges the North Carolina State Board of Elections to adopt the proposed rules with the amendments and clarifications CEC suggests.