1-27-2020 update: The staff at the State Board of Elections has changed their interpretation of last year’s absentee ballot reform law and the SBE has begun releasing absentee-by-mail ballot data. I am grateful for the change. With data coming in, VoteTracker is now up and running.
Original post: The first few Absentee-by-mail votes for North Carolina’s March 3 primary have started to trickle in. As always when votes start coming in, I prepared to upload that data to the VoteTracker at Civitas’ Carolina Elections site. So I go to the State Board of Election’s (SBE) data download site and… it wasn’t there.
I reached out to Patrick Gannon, the SBE’s public information officer, about the missing data. He replied via email that a change in state election law compelled the SBE to deny access to voting data that identifies individual voters:
Data that identifies individual voters will not be available until Election Day at the earliest, per this change in law: Session Law 2019-239
Here is the relevant section of that law:
(c) The official register required by subsection (a) [“Register of absentee requests, applications, and ballots issued”] of this section shall be confidential and not a public record until the opening of the voting place in accordance with G.S.163-166.01, at which time the official register shall constitute a public record.
While the SBE’s interpretation of the statute is not unreasonable, it rests on a misinterpretation of the intent of the law. The SBE essentially treats information on those who have voted absentee-by-mail as a subset of information on those who have requested absentee ballots. However, legislation that created the change in the language was intended to prevent ballot harvesting preventing political operatives from knowing who has absentee ballots in their possession. Clearly, people who have already voted are not in that category. So, a better interpretation would be to consider absentee-by-mail votes a separate category from absentee-by-mail ballot requests. Such an interpretation would benefit three groups:
- Absentee-by-mail voters, who would be spared being contacted by campaign get-out-the-vote efforts after they had already voted
- Campaigns, which could save resources by not contacting people who have already voted by mail
- Researchers, who would be able to access absentee-by-mail detailed data as it came in (This includes those who seek to protect the integrity of our elections by investigating election data.)
As an aside, this confusion could have been avoided if the bill had language that explicitly differentiated absentee ballot requests from absentee ballot votes. That language was part of my absentee ballot reform proposal last year:
“GS 163A-1306 should be amended so that absentee ballot requests are not made public until after the voter has submitted their ballot. The ballot requests of those who asked for an absentee ballot but did not submit it would be made public after election day.”
I continue to be in touch with the State Board of Elections on this matter and have reached out to members of the General Assembly to clarification on Session Law 2019-239. The absentee ballot reforms contained in that law are an important part of protecting the integrity of our elections; detailed data on absentee-by-mail voting can be made public before election data can be made public without jeopardizing those reforms.
If there are no changes in how the SBE enforces the law on records of absentee-by-mail votes, we will start recording votes on VoteTracker after early in-person voting begins on February 13.
