Election law and administration must balance the often-competing needs of access and security.
Go too far in one direction, and elections are vulnerable to fraud, as in the overturned 2018 Ninth Congressional District election. Go too far the other way, and you risk making it all but impossible for many people to vote.
Circumstances may require a recalibration of that balance. For example, the North Carolina General Assembly responded to the 2018 election fraud case by passing “Combat Absentee Ballot Fraud” legislation by broad bipartisan majorities. The bill tightened mail ballot laws and procedures to protect voters from ballot trafficking.
Likewise, circumstances may require a temporary loosening of protections. Again, the General Assembly did just that, passing the Bipartisan Elections Act of 2020. That law made several temporary election-law changes in response to the COVID-19 crisis, including reducing the mail-ballot witness requirement from two to one.
So, it is hardly surprising that the North Carolina State Board of Elections (SBE) unanimously voted to loosen several election-law provisions for the 13 hardest-hit counties in an Oct. 7 meeting in response to Hurricane Helene. Here are some of the changes in the resolution:
- Allow county boards of elections (CBEs) to alter the time, date, and location of early voting sites.
- Allow CBEs to alter the location of election day voting sites, including outside the precinct, “as a last resort.”
- Loosen the requirements for poll worker recruitment and assignment.
- Broaden when and how mail ballots can be returned to election officials, including hand-delivering ballots to election boards outside the affected counties.
- Expand recruitment and duties of Multipartisan Assistance Teams (MATs), bipartisan groups tasked with helping voters. MATs will be authorized to collect completed absentee ballot envelopes from voters.
The changes will also place additional burdens on the election officials who will have to administer under the new rules, but not excessively so.
Just as important is what the SBE did not change. They did not authorize the use of drop boxes for mail ballots. The due date for mail ballots is still Election Day. Only the voter or the voter’s near relative, along with MAT members, may deliver completed ballots; the ban on ballot trafficking is intact.
Nor should these measures be taken as a test for future general changes in election law. As with the law allowing military and overseas voters to get their ballots to election offices after Election Day, the changes in the affected counties are strictly for a narrowly defined subset of voters whose particular circumstances warrant a recalibration of the balance between security and access.
The rules regulating the SBE’s use of emergency powers require them to consider the “sufficiency of time remaining for the General Assembly and the Governor to adopt emergency legislation addressing the disruption,” and state law requires that any emergency provisions approved by the SBE “avoid unnecessary conflict” with the law.
The General Assembly is meeting this week to consider responses to Helene and could alter or reverse any changes the SBE approved on Monday.
Considering those factors, it is hard to believe that SBE officials and legislative leaders did not communicate, even indirectly, about the proposed emergency rules. Remember the experience of 2020 when two Republican board members resigned after believing they had been deceived into voting for a lawsuit settlement that altered some election laws. One of those changes was later overturned by a federal judge. I am hopeful that the SBE has learned its lesson.
The State Board of Elections has allowed the 13 counties most affected by Hurricane Helene to adjust the balance between election security and access to compensate for the realities that voters in those counties face. Those changes are appropriate to the scale of disruption to voting.
