The North Carolina State Board of Elections (NCSBE) has received over 15,000 comments on the adoption of permanent rules for noncitizen list maintenance since the request for comment was made at a December meeting.
According to Adam Steele, associate general counsel for the board, the comments came from a combination of emails, webpage portal, mail, and comments made at a recent public comment hearing.
The board voted 3-2, along party lines, at their Nov. 25 meeting in favor of using a federal immigration-verification system to help identify non-citizens on the state’s voter rolls.
Systematic Alien Verification for Entitlements (SAVE) is administered by the Department of Homeland Security (DHS) and is used by federal, state, territorial, tribal, and local government agencies to verify the immigration status and US citizenship of applicants seeking benefits, like Medicaid, or licenses.
He said in December that there are already two processes that trigger those identity questions and challenge processes. This includes the felon removal process and the jury excusal process, where if anybody informs a court when they’ve been called for jury duty that they shouldn’t have to serve because they’re not a citizen, that would be referred to the NCSBE.
While the new rules track the statutes that are already in place, they also expand on them.
The rules would be codified as a new chapter, Chapter 23, in Title 8 of the North Carolina Administrative Code.
The first rule, Rule 101, is a definitions rule that spells out certain terms used throughout the rules.
The second rule, Rule 102, covers the initiation of the process at the county board level. It states that within five business days after receiving the notice of non-citizenship from the state board, which received information from a government source, the county board will initiate the challenge process. The county then notifies the voter, and then they will have to set a hearing.
Rule 103 would cover the preliminary hearing where the challenger has the burden of proof to challenge information the county board received from government records from the state board. If the challenged voter does provide information, then the county board needs to take that into account and track it in accordance with the list maintenance statute.
Rule 104 applies to the actual evidentiary hearing or the challenge hearing at the conclusion of the process. The voter is informed of the qualifications required to vote. They are asked to provide all the information they may have in their testimony, and then the county board would administer a final oath, where they essentially affirm they are a citizen.
Dr. Andy Jackson, director of the John Locke Foundation’s Civitas Center for Public Integrity, told Carolina Journal that while states had already been able to use the SAVE system to check individual records of suspected noncitizen voters, the US Citizenship and Immigration Services agency is expanding the scope of the system, which will allow states to check multiple records at a time.
“However, we should not just rely on data checks,” he said. “The proposed rules will establish a process to ensure that no registrations are removed without giving purported noncitizens a chance to defend their registrations.”
Jackson, who spoke at the March 9 hearing, said nobody knows how many noncitizens are currently on the voter rolls in North Carolina, citing the recent conviction of Canadian citizen Denis Bouchard, who illegally voted in the state and was not flagged in any board of elections audit, for the importance of the proposed rules.
“As government data on registered voters’ citizenship status becomes more widely available, we need a process in place to thoroughly vet voter rolls using that data while protecting citizens’ voting rights,” he said.
Steele told the board at its March 18 meeting that the over 15,000 comments need to be reviewed and considered. After that, the board can adopt the rules as originally proposed, there could be revisions proposed by staff based on the comments or from the board, or they could choose not to proceed with the rules.
While the board was set to vote on adopting the rules, he advised postponing any action for about a month until all the comments can be reviewed and sorted.
The deadline to submit comments was March 16, so any new comments received after that date will not be considered.
Board member Siobhan Millen agreed with a commenter who said the process should be slowed down because they don’t know how reliable the SAVE data will be, and there shouldn’t be any reason to rush into using it before more is known about it.
“So, for different reasons, we are slowing this down, and I welcome that,” she said.
Millen stressed the SAVE system is different than the Safeguard American Voter Eligibility Act, or SAVE Act, which requires individuals to provide proof of US citizenship when registering to vote in federal elections. It would require photo ID when casting ballots and proof of citizenship when registering to vote. It is expected to fail in the Senate due to united Democratic opposition.
Steele said that if the rules are adopted before April 20, they could take effect by June 1, provided they are approved by the Rules Review Commission.
The board unanimously voted to table a vote on adopting the rules until a date is set sometime next month.
