State Board of Elections releases closed session minutes

The State Board of Elections Friday morning voted to release the following documents to promote transparency and public confidence in the administration of elections and to ensure voters have accurate information about recent board decisions:

• Minutes of the September 15 closed session meeting during which the board discussed a possible settlement of lawsuits challenging certain absentee voting procedures.
• A privileged and confidential “Bench Memo” drafted by the State Board legal team and provided to State Board members before the closed session meeting. It contains nine pages of information about the status of outstanding lawsuits and factors for the board to consider when determining whether to settle lawsuits versus waiting for the courts to decide.
• A privileged and confidential memorandum from attorneys at the N.C. Department of Justice, who, by statute, represent the State Board in litigation matters. This six-page memo, provided to Board members before the September 15 meeting, contains information about the status of outstanding cases, details of outcomes of similar lawsuits in other states, and a discussion of the advantages and disadvantages of possible settlement terms.

Combined, the minutes and the memos show that all five State Board members were thoroughly briefed on the pros and cons of any settlement regarding absentee voting and that all board members had ample opportunity to ask questions and provide feedback on the proposed settlement.

Releasing the documents required the waiver of attorney-client privilege, an unusual step for any agency. However, the State Board determined it was necessary to promote public confidence in our election system at this critical juncture, when many falsehoods are being perpetuated about the administration of elections.

“We believe in transparency, and we believe voters have a right to know what preceded the Board’s unanimous decision to seek settlement of outstanding lawsuits,” said State Board Executive Director Karen Brinson Bell. “If approved, this settlement provides certainty for voters about absentee voting processes, while not sacrificing many safeguards in place to ensure absentee voting is secure in North Carolina.”

The State Board also wants to dispel misinformation about what the settlement proposal would do. The proposal:

1. Allows problems with witness information on the absentee ballot return envelope to be corrected by a sworn certification of the voter. As absentee by-mail voting began in North Carolina, by far the most common problem with returned ballots was missing witness information. The witness requirement remains in place. However, if a ballot is returned without required witness name, address, and/or signature, it can be corrected with a sworn certification from the voter affirming that the voter returned their ballot for the November 2020 general election and will not vote more than once in the election. It also allows missing assistant information to be corrected. The penalty for providing false information on the form is a Class I felony. This change is already in place, because a federal court order requires the State Board to provide due process to voters whose ballots would otherwise be rejected.
2. If approved by the court, it would extend the date that ballots would be accepted from November 6 to November 12, provided that they are postmarked on or before Election Day. This ensures that no ballots cast after Election Day may be counted. It maintains the postmark requirement in statute and ensures that lawful votes cast by Election Day are counted, even if there are postal delays, which the U.S. Postal Service alerted the State about by a letter in August. The November 12 deadline mirrors the existing law for acceptance of military and overseas ballots. In North Carolina, nearly all ballots cast in the 2020 election – including all Election Day and in-person early votes, as well as all by-mail ballots received through November 2 – will be counted and reported on election night. It would also define postmark to include tracking information indicating a ballot was in the custody of USPS or a commercial carrier on or before Election Day.
3. If approved by the court, it would require county board of elections staff to keep a log of who returns absentee ballots in person to the county board office or early voting sites by orally communicating with the person dropping the ballot off and entering certain information into a log. This would not allow drop boxes for the return of absentee ballots. It would specifically require county boards that use a drop box for other purposes – such as the return of voter registration applications – to place a sign on that box stating that voters may not place their absentee ballots in the box. It would lift the requirement that the person delivering the ballot fill out a detailed written log. However, if an unauthorized person returns the ballot, they must still fill out the written log.

Absentee voting remains safe and secure in North Carolina. See 12 Reasons why absentee by-mail voting is safe and secure in North Carolina.

Please see the prepared remarks of State Board Chair Damon Circosta, as stated during Friday’s board meeting.