Request for stricter rules on N.C. election observers struck down

Young man votes at Wake County early voting site in 2022 primaries.

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  • N.C. Rules Review Commission strikes down tighter rules for election observers for upcoming general election.
  • NCSBE received a series of complaints from county boards of elections around the state following May’s primary about the behavior at polling places.
  • The RRC said they voted against implementing the temporary rule because the NCSBE lacks the statutory authority to adopt the rule, the rule was unclear and ambiguous, not reasonably necessary, and it was not adopted in accordance with the APA.

The N.C. Rules Review Commission rejected a request by the N.C. State Board of Elections on Thursday to tighten up restrictions on election observers for the upcoming general election in November.

NCSBE voted unanimously at their board meeting on August 16 to adopt temporary rule changes that broadened precinct officials’ authority to remove election observers during the November general election. The NCSBE says they proposed and passed the rule changes after complaints from county boards of elections around the state following May’s primary.

Accounts of observers allegedly getting too close to voting equipment, speaking to voters, and coming and going from the polling place without asking permission from the chief judge were among the complaints. The NCSBE said they sought and received public comments between July 22-August 12.

The RRC said they voted against implementing the temporary rule because the NCSBE lacks the statutory authority to adopt the rule, the rule was unclear and ambiguous, not reasonably necessary, and it was not adopted in accordance with state rule-making laws called the Administrative Procedures Act.

The opinion stated that NCSBE added new language that is considered “nonbinding and interpretative” and didn’t meet the requirements of being “expressively authorized by federal and State law and that are necessary to serve the public interest.” Therefore, the NCSBE lacks the statutory authority to adopt the temporary rule since it didn’t meet the definition of a “Rule.”

They also said that since the rule does not meet the statutory definition of a rule, it cannot be “reasonably necessary” as only “Rules” can be reasonably necessary, and the existing language of the Rule repeats statutory language, which also makes it not reasonably necessary.

The RRC also determined that a portion of the existing language of the rule is “impermissibly ambiguous and unclear in terms of the requirement that “all precinct officials ensure that registration records can only be accessed by precinct officials.”

The commission said NCSBE has refused to respond to their request to define the term “registration records,” and it appears that the Rule, as written, requires precinct officials to protect information that is otherwise publicly available, such as certain voter registration information, including party affiliation, voter history, and a voter’s precinct, that may be accessed on the State Board of Elections website.

Finally, the commission said NCSBE “has asserted that RRC may not review portions of the Rule that the agency has not sought to amend through temporary rulemaking. This is contrary to the plain language of the (Administrative Procedures Act) APA, which places no such limits on the Commission’s authority.”

“G.S. 150B-21.1 states that an agency that engages in temporary rulemaking must “submit the rule and the agency’s written statement of its findings of need for the rule to the Rules Review Commission.” Thereafter, the Commission “shall review … the rule” to determine whether “the rule meets the standards in G.S. 150B-21.9,” which similarly directs the Commission to review “a rule.”

The NCSBE stood by its decision last week.

“The State Board concluded, in a unanimous and bipartisan fashion, that these rules were required to provide better guidance immediately to poll workers and partisan observers, to protect the integrity of the voting process,” said Patrick Gannon, public information director for NCSBE.

“That conclusion was based on experiences shared by county boards of elections regarding both poll workers and observers. In fact, the State Board conducted a statewide survey that gathered specific input for these rules from county elections directors following the May primary,” he added.

Gannon said forty-three counties responded and that the survey identified specific issues with misconduct and confusion about the rules that these amended rules intended to address. He said the issues identified were not limited to any particular political party’s observers. 

“Participation from the public was substantial and substantive,” Paul Cox, legal counsel for NCSBE, told the board before their vote last week. “The board received 150 emails, two letters, and over 1,000 comments through our web portal.”

He said the draft rules were based on input from county directors of elections who had experienced new issues at the voting place with partisan election observers and county-appointed precinct officials. Primarily, the rules center on the precinct officials’ authority to remove election workers who leave their designated area, are getting too close to tabulators or other confidential voter information or seem to be coming and going from the polling place too often.

The North Carolina Republican Party agreed with the RRC’s decision. They said in a statement the rules proposed by the NCSBE would have made it harder for North Carolinians to observe elections and for election officials to carry out their duties.

“The NCGOP along with the RNC filed a letter objecting to the rules on the grounds that, among other things, the State Board attempted to bypass the standard rulemaking process but failed to meet the statutory requirements to do so,” the letter read.

“Plain and simple: the Democrat-controlled State Board attempted to subvert the administrative rulemaking process,” Philip Thomas, chief counsel of the NCGOP, said in a statement. “The voters of this State owe thanks to the commissioners who stood up for the Rule of Law.”

“I am grateful that the Rules Review Commission voted overwhelmingly against the proposed election rule changes,” said Dr. Andy Jackson, director of the Civitas Center for Public Integrity at the John Locke Foundation. Jackson also testified against the proposed temporary changes at Thursday’s meeting.

“The proposed changes for election observers, in particular, were ambiguous and went beyond anything required by state law. Using the temporary rules procedure to make these changes would have been an abuse of the process since the Board of Elections had not established a need for the changes in response to changes in law or facts,” he said.