SBOE Flip Flops on Absentee Ballot Request

First Approves DemocracyNC, Then Denies Request from GOP

For a time, Bob Hall (Director, DemocracyNC) was the only person outside of the State Board of Elections (SBOE) who knew he was approved for an absentee ballot request form that violated state law.

An absentee ballot request form is necessary for a voter to receive an absentee ballot by mail.  A voter must submit a signed, written request for a ballot to the county board of elections office.  The request must include the voter’s name, address, date of birth and signature.  Before 2002, groups could provide absentee ballot request forms to voters with all the pertinent information included; the voter only needed to sign the form and mail it back to their local elections office.  The elections board would mail a ballot to the voter who then would mail or hand deliver it to the county board of elections.

In 2002, however, the North Carolina State Legislature, controlled by Democrats, enacted legislation (NCGS 163-230.2) which made it unlawful to use any form other than one produced by the local board of elections to request absentee ballots by mail.  The legislation was a direct result of the successful “get-out-the-vote by mail” campaign the Republican Party waged in the 2000 General Election when they mailed completed forms to tens of thousands of Republican voters.

The 2002 law effectively ended this type of get-out-the-vote effort and now requires voters themselves to  submit requests for absentee ballots “written entirely by hand by the requester” or “on a form generated by the county board of elections and signed by the requester.”  Only voters with a disability or illiterate voters unable to make a written request may receive assistance from an individual of the requester’s choice.

Ever since NCGS 163-230.2 was enacted, advocacy groups have sought ways to make it easier for voters to request absentee ballots by mail. Many have tried to circumvent the law by using forms in their get-out-the-vote effort that do not include voter’s personal information, but come with detailed instructions on how to complete the form.  These proposals are sent to the SBOE for approval. According to the email below, Bob Hall’s friends at the State Board of Elections had already approved his absentee ballot request form proposal when the Wake County Republican Party (GOP) made a similar request.  In the email, the SBOE appears to reverse their earlier decision on Bob Hall’s form in order to refuse the GOP.

According to the email below acquired by Civitas, Bob Hall and DemocracyNC had already sought and received approval from the SBOE for an absentee ballot request form prior to August 2011. The DemocracyNC form violated state law and the approval was rescinded after the Wake County GOP made a similar request to the Wake Board of Elections. Realizing they would have to approve the Wake GOP request because of DemocracyNC’s previous request, the SBOE backtracked, and denied the Wake GOP appeal, informing them, by email,  to not accept the DemocracyNC request. It is unclear if they went back and told DemocracyNC their form was not valid for use. The email written by Johnnie McLean, Deputy Director of the State Board of Elections to Cherie Poucher, Director of the Wake County Board of Elections was copied to the Director of the State Board of Elections, Gary Bartlett:

Cherie,

After further review of past ‘approved’ instructions, I need to reconsider
information I provided regarding Bob Hall’s request.  The form he presented
was less objectionable than the one attached to your email, however, it is
still a form.  The forms previously approved for use in 2008, included
instructions and a “sample” request to be written by the voter on a blank
card.

It seems the instructions and ‘form’ included requesting a revision
contains more than what this office approved previously in 2008 and 2010.
My recommendation to wait until after the September legislative session is
still the best approach.  If GS 163-230.2 is repealed as has been
discussed, then all of these request forms would be unnecessary.

As the Republican Absentee Ballot Request is currently presented I am
unable to approve.  There are problems with the instructions as well as the
attached request form which makes it not generated by the county board of
elections or written entirely by the requestor.

Johnnie McLean
Deputy Director

Poucher, in a subsequent email, asked for clarification on Bob Hall’s form and was told to treat them as simply a request for a county-produced ballot request form.  In other words, a voter would have submitted a ballot request only to receive a blank ballot request form from the county board of elections to be completed and returned to the board prior to receiving the ballot.

Even though NCGS 163-230.2 was uncharacteristically simple and to the point, the legislators in 2002 included language allowing the State Board of Elections to adopt rules for the enforcement of legislation.  This provision gives the Board of Elections freedom to distort the law’s intent.  Since this law was passed, the State Board of Elections has begun to approve the use of typed forms instead of only approving requests “written entirely by the requester personally,” clearly stretching the law’s intent.

McLean recommends, in her email to Poucher, that the best approach would be to “wait until after the September legislative session.”  Her suggestion implies that McLean was privy to discussions legislators were having regarding the repeal of NCGS 163-230.2.

However, the law was not repealed in the September 2011 session. Perhaps Republicans remembered that during the bitter debates over voter ID and other election reforms in the 2011 legislative session, Democrats frequently proclaimed that the only area of North Carolina’s election system with fraud problems was absentee voting by mail.

NCGS 163-230.2 was bad legislation. If the Republican-controlled legislature is considering its repeal, there are ample opportunities to institute safeguards to prevent voter fraud among absentee ballots.  Technology has advanced to a point that the county boards of elections are equipped to validate signatures on ballot requests and, more importantly, verify the voter’s signature on the absentee ballot when it is returned to the elections office.

North Carolina’s Boards of Elections have been scanning images of voter registration forms into their statewide database for years.  Included in the scan is the voter’s signature because whenever a voter changes anything in their voter record a signature must be included.  It only makes sense to begin the practice of comparing signatures when a voter votes by mail to make sure that the ballot has been cast by the individual who registered to vote.