- The State Board of Elections is seeking to eliminate the witness requirement for absentee ballots, which would weaken the integrity of absentee voting.
- Signature matching could be a good additional measure for election security but is not a substitute for absentee ballot witnessing.
- The coronavirus should not be used as an excuse to weaken absentee ballot protections for those in assisted living facilities.
On March 26, State Board of Elections (SBE) Executive Director Karen Brinson Bell sent the General Assembly a memo listing a host of changes she would like to see made to North Carolina election law. Interestingly, she claimed that the proposed changes were to “address the impacts of the coronavirus pandemic” (page 1) but in the very next sentence says that most of them “should be made permanent.” Given that obvious contradiction, it is little wonder that those proposals made little headway with legislators.
Now Brinson Bell has issued a second memo to the General Assembly.
The list of proposals in the April 22 memo range from the positive (such as cutting red tape for purchasing supplies), to the banal (such as prepaid postage for ballots), to the irresponsible (such as gutting requirements about one-stop voting sites and maintaining common voting hours during one-stop voting).
However, I will focus on the two parts of the memo that deal with absentee ballot integrity.
Gutting the witness requirement for absentee ballots
Back in March, before the SBE had issued its first wish list to the General Assembly, I wrote that the hard-won absentee ballot reforms passed nearly unanimously by the legislature must not be reversed.
The good news is that Brinson Bell says that members of the SBE “continue to support restricting the return of absentee-by-mail ballots to the voter or near relative” (page 4), although Brinson Bell mistakenly stated that it was enacted as part of absentee ballot reform passed last year. It had already been part of election law; the reform in last year’s legislation was that the voter’s near relative or verifiable legal guardian, or a member of a multipartisan assistance team (more on them later), can fill out an absentee ballot request form for a voter.
The bad news is Brinson Bell seeks changes that would undermine absentee ballot integrity in other ways.
First, she wants to “reduce or eliminate the witness requirement for absentee ballots” (page 3). Under North Carolina law, two witnesses must sign a voter’s absentee container envelope confirming that the voter marked the ballot or directed its marking.
In addition to verifying that the voter made the choices on the ballot, the witness requirement is also crucial in suspected ballot harvesting cases for establishing who took possession of the absentee ballots, since it is invariably the witnesses who take them. Finding the same names on numerous absentee ballot container envelopes was an important signal that ballot harvesting operations were taking place in Bladen County in 2018.
Requiring two signatures is superior to requiring one since it prevents one-person ballot harvesting or vote-buying operations. In addition, it makes ballot harvesters sign as witnesses on more ballots. For example, a 10 person ballot harvesting crew trying to harvest 200 ballots would have to average 40 signatures per worker, something more likely to be noticed by election officials and reporters:
All told, WRAL’s analysis shows that just 20 people witnessed about 400 absentee ballots across Bladen and Robeson counties. That’s about one of every four absentee ballots cast there.
Witnessing multiple absentee ballots isn’t illegal. But it can be a red flag for state elections officials, who are investigating claims that people hired by Dowless took voters’ ballots after signing them as witnesses.
Reducing the witness requirement would allow ballot harvesters to operate with less of a “footprint” per worker, reducing the chance that their operation would be noticed.
A signature software Trojan Horse
The SBE memo mentions using signature matching software as an “alternative option” (page 4) to ballot witnessing. Such software is used for ballot integrity in states that conduct all-mail voting, such as Colorado. However, it is not perfect and has had some problems with mismatching signatures on ballots. Progressive groups have sued Michigan and other states over signature verification. Given the amount of litigation over election law in North Carolina, a similar lawsuit would be all-but-inevitable here. The result is that we could have an absentee ballot process with neither witnessing nor signature matching.
In addition, signature matching does little to combat ballot harvesting because political operatives are usually able to convince voters to hand over their signed ballot container envelope.
In short, a suggestion to switch from witnessing to signature matching amounts to a Trojan Horse that would lessen the integrity of absentee-by-mail voting.
Perhaps signature matching software can be used as an additional layer of protection against absentee ballot fraud (if it survives the inevitable lawsuit), but it is not a substitute for witnesses.
An unnecessary call to remove protections for those in assisted living facilities
North Carolina law makes it a felony for any owner, manager, or employee of assisted living facilities (hospitals, clinics, and nursing homes) to make absentee ballot requests, sign an absentee ballot application, or mark a ballot of any patient in those facilities. That protection is in place because people in assisted living facilities are often vulnerable to manipulation by owners and staff of those facilities.
Recognizing that people in assisted living facilities may need help in the absentee ballot process, the law also provides for multipartisan assistance teams (MATs, groups of trained volunteers) to help people in those facilities.
Brinson Bell claims in the memo that the coronavirus may make it impossible for MATs to operate in assisted living facilities and suggests that the ban on assisted living facility owners and staff filling out absentee ballot forms and marking ballots be temporarily lifted (page 4)
We suggest considering options, such as temporarily allowing a facility employee to assist, to ensure these voters are able to continue to exercise their right to vote. Similar to states like Indiana, two trained facility employees not of the same political party could be designated to administer voting and could be trained accordingly by the county board prior to serving in this capacity.
However, the subdivision of the law that bans owners and employees from being involved in the absentee ballot process already provides for an exception for those working within MATs (§ 163-226.3(a)(4))
This subdivision does not apply to members, employees, or volunteers of the county board of elections, if those members, employees, or volunteers are working as part of a multipartisan team trained and authorized by the county board of elections to assist voters with absentee ballots.
So, rather than carve out new exceptions from the law on banning assisted living facility owners and employees from being involved in the absentee ballot process, county boards should be working to “deputize” them into MATs while taking special care to make sure that both major parties are represented by volunteers in each facility. If the SBE is concerned about how to interpret the law on absentee voting in assisted living facilities, they should ask the General Assembly for clarification rather than ask for permission to make an end-run around voter protections.
While the coronavirus may cause us to change how we conduct elections in some ways, it is not an excuse for us to gut laws in place to protect citizens from absentee ballot fraud.
What can you do? If you are concerned about the SBE request, you can submit a public comment to the NC House Select Committee on COVID-19 to let them know that you do not want them to weaken voter protections.
