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SBE launches new attack on poll observer rights

Updated: Apr 26, 2023

July 18, 2022 (Raleigh) While many were enjoying extended early-July vacations, the NC State Board of Elections (NCSBE) was busily scheming, once again, to restrict the movement of poll observers and to make it easier for said observers to be kicked out of the voting location.

The plan was announced by agency General Counsel, Katelyn Love (beginning at the 1:03:06 time stamp of this recorded meeting), whereby the agency would circumvent the normal approval process by making “temporary” rule changes (under NCGS §150B-21.1).

Love freely admitted they were pushing the changes through the temporary rule making process because “the permanent rule making process is a fairly lengthy one… [that’s] too lengthy for the rules to be in place for the November election.”

One rule change, affecting 08 NCAC 10B .0101, codifies agency policy to prohibit Election Day precinct officials from serving as volunteer poll observers during early voting. Love said the 10B changes are “to clarify and simplify” the observer-list submission process and she spent several minutes explaining the changes to the Board.

The more onerous and capricious rule changes affect the poll observer conduct, as elaborated upon in 08 NCAC 20. 0101.

For example, one revision would prohibit poll observers from “using doors designated for precinct officials or one-stop workers.”

This burdensome change would require observers to enter and depart the voting enclosure by using the same entry point as the voters. Besides creating more opportunities to be deemed “disruptive” to the voting process, the rule would force observers through a lengthy maze of people standing in line and prevent the observer from documenting the relatively quick curbside voting procedure.

The more egregious rule change involves a backhanded establishment of an illegal “area designated for observers,” which has been the holy grail for the more left-leaning election Directors for as long as I’ve been involved in election integrity, Wake Director, Gary Sims, chief among them.

The “designated area” would be allowed, “provided the area designated allows the observer to observe each past of the voting process except for the marking of ballots.”

The proposed rule makes no mention about whether or not the observer would be able to hear the conversations around the voting process.

An example of this type abuse happened in Sanford, where Election Director Jane Rae Fawcett unsuccessfully designated a seat that would allow observers to “see” the entire early voting location without being able to hear any guidance a voter might be getting at the Help Desk or the Check-In Table.

Both proposed rule changes are blatantly illegal because they fly in the face of the broad allowances NCGS §163-45(c) affords poll observers which even orders election officials to “permit the observer to make such observation and take such notes as the observer may desire.”

Another aspect of the SBE’s stealth law changes involves their possibly violating “the Purcell Rule,” which generally bars courts from changing election laws once the election cycle has begun.

Central to this issue would be whether or not the Regulatory Rules Commission is considered a “court” proceeding.

The public comment hearing on the rules will be at 10 a.m., July 28, in a virtual meeting.

Details will follow as they become available. ###


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