NCGA HB 1169 | Analysis by Glen Bradley

The bill is actually pretty good. I went line by line and followed references out to other parts of the law to do a proper analysis, and the vast majority is good, a lot of indifferent, and just a little bit of bad. I have detailed all of it below:

NCGA HB 1169 [EDITION 1]: AN ACT TO MAKE VARIOUS CHANGES TO THE LAWS RELATED TO ELECTIONS AND TO APPROPRIATE FUNDS TO THE STATE BOARD OF ELECTIONS IN RESPONSE TO THE CORONAVIRUS PANDEMIC.

I will go line by line and delineate those parts I find good, indifferent, bad, and ugly. The primary operative structure of this bill preventing the ordering of an all mail-in election is found in Section 6 (d)(2).

THE GOOD

1. SECTION 1.(b) Page 1 Lines 6-16 mandates the hiring of precinct election officials and mildly relaxes precinct residence requirements. This means that there WILL be a physical in-person election, and the hiring requirements have been relaxed enough to ensure that personnel can be found to fill those spots.
2. SECTION 1.(d) Page 1 Lines 32-33 – all of Section 1 sunsets on December 31st 2020.
3. SECTION 3 Adds a unique identifier to aid in tracking absentee ballots.
4. SECTION 4 Changes the period commencing public meetings regarding absentee ballots from the third Tuesday before an election to the Fifth Tuesday before an election providing more time for public oversight.
5. SECTION 5 Blank absentee ballot requests to be provided and may be sent by a variety of methods.
6. SECTION 6 PROHIBITS A DIRECTOR OR THE STATE BOARD OF ELECTIONS FROM DELIVERING ABSENTEE BALLOTS TO ANYONE WHO DID NOT REQUEST ONE, AND ALSO PROHIBITS THEM FROM ORDERING AN ELECTION USING ALL MAIL-IN BALLOTS.
7. SECTION 8 makes it a class I felony for basically any election official or employee to knowingly sent an absentee ballot to anyone who has not requested one.

THE INDIFFERENT

1. SECTION 1.(a) Page 1 Lines 17-27 changes the absentee ballot request from two witnesses to a single witness. Not exactly GOOD, but not bad enough to be BAD. It is possible that relaxing standards from two witnesses to a single witness can open up more potential for fraud, however you do still have a witness that will be liable for fraud, so protection still exists.
2. SECTION 9 amends the NC VoterID law that has been stayed by the Courts, to add the ability to renew a VoterID online. Renewing VoterID cards online is mildly problematic, but either way this section belongs to it’s own bill rather than stuck into this one.
3. SECTION 10 amends the NC VoterID law that has been stayed by the Courts, to accept certain federal government issued IDs even if they are expired. Adding federal ID cards to the list of acceptable IDs is okay, but either way this section belongs to it’s own bill rather than stuck into this one.
4. SECTION 11.1 Allocation of CARES Act funds to help implement COVID mitigations for in person voting, particularly in poorer counties.
5. SECTION 11.2 Allocation of HAVA Act funds to help counties allow people with disabilities, in quarantine, or otherwise indisposed to vote, particularly in poorer counties.
6. SECTION 11.3.(a) Counties directed to maintain partisan balance of election day precinct officials (despite relaxing precinct residence requirements for 2020 only).
7. SECTION 11.3.(b) SBE to use CARES funds to provide precinct election day officials with Personal Protective Equipment like masks and gloves.
8. SECTION 11.3.(c) SBE to provide Counties with lists of example expenses that can be written off to CARES and HAVA funds.
9. SECTION 11.3.(d) SBE to submit detailed funding and expense reports for Legislative oversight.

THE BAD

1.  Page 1 Lines 28-31 SECTION 1.(c) For an election held in 2020, any individual working as part of a multipartisan team trained and authorized by the county board of elections pursuant to G.S. 163-226.3 may assist any voter in the completion of a request form for absentee ballots or in delivering a completed request form for absentee ballots to the county board of elections.This is part one of two pieces that would seem to relax election regulations enough to permit a kind of ballot harvesting.This “multipartisan team” thing is on both the absentee ballot request side AND (at least for nursing homes in Section 2(b)) the absentee ballot collection side, which means the same “multipartisan team” could ‘help’ request a series of ballots and ‘help’ collect the same series of ballots. While there are still applicable laws to prevent blatant partisan ballot harvesting from being strictly legal, a “multipartisan team” could have ten democrats and a token Republican in it for a major paycheck. They could hide partisan ballot harvesting behind scrutiny by being the same organization and keeping spotty records. This is only ‘bad’ and not ‘ugly’ because it sunsets December 31st 2020.
2. SECTION 7.(a) “§ 163-230.3. Online request for absentee ballots.” (b)(2) “An electronic signature, as defined in G.S. 66-312 of the Uniform Electronic Transaction Act, of the voter, or the voter’s near relative or verifiable legal guardian, if requesting on the voter’s behalf.”The NCGS requirements for an electronic signature are pathetic. “§ 66-312. Definitions. (9) “Electronic signature” means an electronic sound, symbol, or process attached to, or logically associated with, a record and executed or adopted by a person with the intent to sign the record.”I actually like most of Section 7 here, in fact I believe that Section 7 of this bill is something we actually need, but NCGS § 66-312.(9) desperately needs to be brought into the 21st Century. We now have the means to make electronic signatures as or more secure than physical signatures without adding an extreme burden on the user. We need to specify this. Tapping your initials on a keyboard or making a croaking sound should not qualify as an “electronic signature” and certainly not for something as important as voting.

THE UGLY

1. SECTION 2.(b) Page 2 Line 16-18 “multipartisan teams” now allowed to help ‘request, vote, and return’ absentee ballots from nursing homes. “access a hospital, clinic, nursing home, or rest home in this State that is under quarantine in order to assist voters within those facilities in requesting, voting, or returning the voter’s absentee ballot.” This section does not have a sunset.While I am sure the intent is good, and probably most of these “multipartisan teams” are just trying to help people vote without introducing their own biases, the potential for introducing fraud by this vector is enormous. This section in conjunction with Section 1.(c) is problematic. This section not having a sunset is ugly.The INTENT of Section 2.(b) is simply to submit a report to DHHS on how to safely access quarantined nursing homes, while Section 2.(a) is the operative permissive section to allow ballot requests. The problem is the mention of returning completed ballots in 2.(b) demonstrates an intent to allow 2.(a) to return completed ballots, as any competent attorney could argue.Most of this could be remediated simply by adding a Section 2.(c) sunsetting Section 2 on December 31st, 2020, and keeping a sharp eye out THIS YEAR for any of these “multipartisan teams” breaking the law by influencing the vote from absentee ballots out of nursing homes.

SUMMARY

All in all this bill could be a lot worse. There is quite a bit of good, some indifferent, and a little bad.

The only REAL problems I have are:

1. The expansion of the use of “multipartisan teams” for various things without enough real oversight. I do not like Section 2.(b) listing these “multipartisan teams” helping people to return completed ballots, and I do not like Section 2 not having a sunset. When Sections 1.(c) and 2 are taken together, there becomes a potential for nefarious actors to skirt the law and establish a kind of ballot harvesting process through quarantined nursing homes. I would like to see Section 1.(c) and Section 2 tightened up a bit, and I would like to see a sunset on Section 2, and;
2. If we are going to specify electronic signatures for online requests for absentee ballots, we desperately need to update what is, and what are the requirements for, electronic signatures in the General Statutes.