By state law (GS 163-231(b)(1)), absentee ballots can only be “transmitted by mail or by commercial courier service, at the voter’s expense, or delivered in person, or by the voter’s near relative or verifiable legal guardian.” To comply with that law, county boards are required to get the name, address, phone number, and relationship with the voter of any person hand-delivering a ballot in a logbook.
So, what should local election officials do if somebody comes in with absentee ballot container envelopes, plops them on the counter, and rushes out the door without identifying himself? We have an answer to that question and it is not a good one.
On August 21, State Board of Elections (SBE) Executive Director Karen Brinson Bell issued a memo to county boards of elections on the absentee voting process. There are a couple of deficiencies with the memo. Today, I will focus on a problem found on page five:
Failure to comply with the logging requirement, or delivery of an absentee ballot by a person other than the voter, the voter’s near relative, or the voter’s legal guardian, is not sufficient evidence in and of itself to establish that the voter did not lawfully vote their ballot. A county board shall not disapprove an absentee ballot solely because it was delivered by someone who was not authorized to possess the ballot. The county board may, however, consider the delivery of a ballot in accordance with the rule, 08 NCAC 18 .0102, in conjunction with other evidence in determining whether the container-return envelope has been properly executed.
This makes sense on the surface; you do not want to invalidate a ballot without knowing whether or not it was properly voted and transmitted. Also, the memo states that the county board can consider that the ballot showed up at their office illegally if they happen to have other evidence on hand.
However, the memo does not instruct county election officials about how they might get evidence to support that ballots were delivered legally. It does not even instruct them to contact the voters, as election board workers are instructed to do when there are other problems with their absentee ballot container. Instead, they must just assume that ballots were delivered by the voter or a near relative.
Even worse, Brinson Bell instructs election officials to accept ballots that they know were transmitted “by someone who was not authorized to possess the ballot.” I remember reading that kind of reasoning regarding absentee ballots transmitted illegally at the SBE’s 9th Congressional District election hearing last year from one of Mark Harris’ attorneys (page ten):
Because the voter’s intent is key, any alleged ballot harvesting, standing alone, does not weigh in favor of a new election. To be sure, absentee-by-mail ballot harvesting is illegal, and it should be referred to prosecutors for appropriate action. N.C. Gen. Stat. § 163-226.3(a)(6). But illegality in transmission is not necessarily indicative of invalidity of substance. Without evidence to show that the contents of ballots sufficient in number to change the outcome of the election were tampered with, any illegality in how they were delivered should be immaterial to the Board’s decision making.
I noted then why that reasoning was wrong:
There is some logic to that reasoning; you do not want to punish voters, by having their votes invalidated, for the illegal activities of campaign operatives. However, there are several reasons why ballot harvesting should cast suspicion on the substance of the ballots, including concerns that ballot harvesters can exert improper influence on voters while the voters are completing their ballots. Dowless’ alleged ballot harvesting is problematic regardless of what happened to them after they were harvested.
Mark Harris’ attorneys were wrong then and Brinson Bell is just as wrong now.
To remove the SBE executive director’s wiggle room to interpret the law in this matter, there eventually needs to be a legislative fix to require election officials to positively determine that a ballot was transmitted to the county board of elections legally. Just such a requirement for election officials to positively determine the legality of transmission for absentee ballot requests was included in S683 (Combat Absentee Ballot Fraud), which passed with near-unanimous* bipartisan majorities in the General Assembly last year. However, it is probably too late for the legislature to act this year.
In the meantime, Brinson Bell should instruct local election officials to positively confirm the legality of all absentee ballot transmissions and to confirm the intentions of voters whose ballots were illegally transmitted.
Our votes are too important for election officials to just work off of assumptions, especially when so many more people will be voting absentee this year.
*Rep. Darren Jackson (D – Wake) was the only legislator to vote against S683.
