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STATE OF NORTH CAROLINA                                                                                BEFORE THE 
                                                                                                                            
STATE  BOARD  OF ELECTIONS

COUNTY OF WAKE

RULE-MAKING PETITION

Pursuant to N.C. Gen. Stat. § 150B-20,[1] the undersigned petitioner submits this rule-making petition (“Petition”) to the State Board of Elections (“Board”). N.C. Gen. Stat. § 150B-20 authorizes any person to submit a rule-making petition to an agency. The term “person,” as defined in N.C. Gen. Stat. § 150B-2(7), includes a natural person. The undersigned is a natural person, a resident of Wake County, a registered voter, and a former precinct official. The term “agency,” as defined in defined in N.C. Gen. Stat. § 150B-2(2), includes any board that is in the executive branch of government. The “Board” is an agency.

The “Board” exercises general supervisory authority over the primaries and elections in the State and has the authority to make any reasonable rules it deems advisable with respect to the conduct of primaries and elections so long as they do not conflict with the statutes. (N.C. Gen. Stat. § 163-22(a)) In adopting rules, the Board is subject to the rule-making requirements set out in Article 2A of the Administrative Procedure Act, Chapter 150B of the North Carolina General Statutes. Under N.C. Gen. Stat. § 150B-20 in Article 2A, the Board must accept and consider a rule-making petition submitted to it.

This Petition requests the adoption of three proposed rules to implement S.L. 2013-381, An Act To Restore Confidence In Government By Establishing The Voter Information Verification Act To Promote The Electoral Process Through Education And Increased Registration Of Voters And By Requiring Voters To Provide Photo Identification Before Voting To Protect The Right Of Each Registered Voter To Cast A Secure Vote With Reasonable Security Measures That Confirm Voter Identity As Accurately As Possible Without Restriction, And To Further Reform The Election Laws. Two of the proposed rules provide clarification on the application of new N.C. Gen. Stat. § 163-166.13, Photo identification requirement for voting in person, and related statutes, and one provides clarification on the application of voting-place observers and challenges.

The proposed text of the rules and written comments on the rules are set out on the following pages. Each proposed rule is on a separate page, followed by written comments and a statement of effect.


CHAPTER 15 -- VOTING PROCEDURES

SECTION .0100 -- PHOTO IDENTIFICATION

08 NCAC 15 .0101. EXACT NAME MATCH NOT REQUIRED

The form of a voter’s name on the voter’s photo identification need not match exactly the form of the voter’s name on the voter’s registration record. Explainable differences between the names on the two documents do not render the photo identification defective or the voter ineligible and do not require the voter to vote a provisional ballot. An explainable difference is a difference for which a plausible explanation is apparent or for which the voter offers a plausible explanation. Explainable differences include, but are not limited to, all of the following:

(1) Abbreviation of a name. Examples of apparent explainable differences include:

a. John R. Doe instead of John Robert Doe.

b. John R. Doe instead of John R. Doezinskashaveky.

(2) Alternate or anglicized spelling. Examples of apparent explainable differences include:

a. Thomas Jimenez instead of Tomas Jimenez.

(3) Omission of a first or middle name. Examples of apparent explainable differences include:

a. Jane Doe instead of Jane Marie Doe.

b. Marie Doe instead of Jane Marie Doe.

(4) Omission of a prefix, such as Mr., Mrs., or Ms.

(5) Omission of a suffix , such as Jr., Sr., or III. Examples of apparent explainable differences include:

a. John R. Doe instead of John R. Doe, Jr.

b. John R. Doe instead of John R. Doe IV.


(6) Use of common nickname. Examples of apparent explainable differences include:

a. Becky or Becca instead of Rebecca.

b. Beth, Betsy, Betty, Lib, or Liz instead of Elizabeth.

c. Bob or Rob instead of Robert.

d. Bill, Billy, or Will instead of William.

e. Chris instead of Christine or Christopher.

f. Jim or Jimmy instead of James.

g. Pat instead of Patrick or Patricia.

(7) Use of uncommon nickname. Examples of nicknames for which a voter can offer a plausible explanation include:

a. Tim Belk instead of Thomas M. Belk Jr.

b. Snow Holding instead of Lewis R. Holding.

c. Jim Melvin instead of Edwin Samuel Melvin.

(8) Use of maiden name or a hyphenated maiden-married name instead of a married name. Examples of apparent explainable differences include:

a. Jane Smith instead of Jane Doe.

b. Jane Smith-Doe instead of Jane Doe.

(9) Use of maiden name, rather than given middle name, as middle name. Examples of apparent explainable differences include:

a. Jane Smith Doe instead of Jane Marie Doe.

History Note: Authority G.S. 163-22, 163-166.7(c), 163-166.13, 163-182.1,

163-182.1A, 163-182.2, 163-182.17;

Eff. January 1, 2016


08 NCAC 15 .0101. ADDRESS MATCH NOT REQUIRED

The purpose of the photo identification requirement is proof of identity and not proof of address. A voter’s address on the voter’s photo identification need not match the voter’s address on the voter’s registration record. Differing addresses on the two documents do not render the photo identification defective or the voter ineligible and do not require the voter to vote a provisional ballot. Differing addresses on the two documents may be evidence that the voter’s residence address on the voter registration record needs to be updated or that the voter is not qualified by residence to vote a particular ballot style, but no voter shall be denied the right to vote or denied the right to have the vote counted solely because the address on the voter’s photo identification and the voter’s registration record do not match.

History Note: Authority G.S. 163-22, 163-166.7(c), 163-166.13, 163-182.1,

163-182.1A, 163-182.2, 163-182.17;

Eff. January 1, 2016


SECTION .0200 – OBSERVER AUTHORITY

08 NCAC 15 .0201. LIMITATIONS ON OBSERVER’S AUTHORITY

No observer shall take or be permitted to take any of the following actions while the observer is in the voting enclosure:

(1) Move close enough to a voter to read the voter’s photo identification or listen to the voter’s conversation with a precinct official.

(2) Challenge the voter pursuant to G.S. 163-87 or G.S. 163-227.2(h).

(3) Otherwise impede or interfere with the voting process or violate the privacy of the voter.

History Note: Authority G.S. 163-22, 163-166.7(c);

Eff. January 1, 2014


Written Comments and Statement of Effect

Submitted In Support of Proposed 8 NCAC 15 .0101, .0102, and .0201

With the enactment of Session Law 2013-381 (House Bill 589), the N.C. General Assembly set in motion a major change in the election statutes. It did so at the same time the election machinery was changing partisan control for the first time in 20 years. The new laws will be explained and enforced by thousands of election officials at the State, county, and precinct levels, many of whom will be new to their roles.

The leadership of the State Board of Elections has declared that it expects election officials throughout the State to fulfill their duties in such a fair and impartial manner that all voters can feel confident about the election process and the election results. Despite the tone the State Board has set, however, it must be acknowledged that all election officials got their positions through the recommendation of a political party. Inevitably, some of these offices will be filled by people who are motivated primarily by partisan zeal. Some may not be restrained by good judgment.

Given these realities, it is important that certain aspects of the new statutes be clarified in writing for all election officials to see. Because no statute can address every enforcement situation that may arise, the statutes provide for the enforcing agencies to adopt rules. This petition addresses three circumstances that call for such rules. Two of them involve the new requirement that all voters must demonstrate their identity, and one of them addresses the authority of party observers.

Proposed Rules on Photo Identity, 08 NCAC 15 .0101 and .0102

Heretofore, a voter’s registration record was the only document about the voter that was before an election official. The voter was to state, under penalty of a felony, that the information on the registration record was true. With the new law, voters must present a photo ID.


The new law becomes effective January 1, 2016. To prepare voters for this change, the law gives election officials the duty to explain the impending photo ID requirement. That educational duty is already in effect. Consequently, it is important that photo ID rules be in place as soon as possible to ensure that election officials, when explaining the new law, do not create confusion or possibly intimidate voters by forecasting ID requirements that are not part of the law.

The evident purpose of the new photo ID requirement is to protect against voter identity theft. The purpose is not to impose strict information-matching requirements between two documents. The law’s purpose is reflected in both what the new statute says and in what it does not say. The new statute requires an ID to have a photo and goes into detail about how officials are to determine if the photo on the ID reasonably resembles the voter. The new statute does not say that the voter’s name on the ID must be an exact match with the name on the voter registration record. Nor does it say that the address on the ID must match the address on the voter registration record to any extent. The new statute says the ID must not have expired, but the expiration refers to timing rather than data matching.

The photo ID the voter will present, however, will have not only the voter’s photo, but also the voter’s name and, usually, the voter’s address. Without clear guidance, election officials may mistakenly conclude that the name on the ID and the address on the ID must strictly match the name and the address on the voter registration record. There has been publicity about the enforcement of the Texas photo ID law, which expressly states that names must match. Election officials may have heard those stories and may assume that North Carolina’s law is the same, even though it is not.


This petition proposes rules specifically addressing the circumstances described.[2]

They are proposed to establish clear guidelines and to thereby prevent election officials, whether through over-zealousness or misunderstanding, from ruling an ID invalid when there is an explainable difference between the names on the photo ID and the registration record or the address on the two documents differs.

Proposed Rule on Authority of Party Observers, 08 NCAC 15 .0201

Among the changes made by the new law are two changes that allow:

· Each political party in a county to name up to 10 at-large observers who may enter any polling place in the county.

· Any voter in the county to challenge a voter in any precinct on election day.

These statutory changes become effective January 1, 2014. The changes will therefore apply to major primaries and elections occurring this spring.

The current statutory section for observers, G.S. 163-45, specifies that they must not depart from the function their name implies, which is to observe: “An observer shall do no electioneering at the voting place, and shall in no manner impede the voting process or interfere or communicate with or observe any voter in casting a ballot, but, subect to these restrictions, the chief judge and judges of elections shall permit the observer to make such observation and take such notes as the observer may desire."

    
To fulfill the mandate of this statute, proposed rule 08 NCAC 15, 0201, expressly states that observers may not move close enough to a voter to see the voter’s ID, and may not challenge voters while in the enclosure. Reasons for adopting this proposed rule include:


1. The law requires that the voter’s privacy be protected and this rule protects the voter’s privacy. G.S. 163-166.7 directs the State Board to adopt rules that “emphasize the appearance as well as the reality of dignity, good order, impartiality, and the convenience and privacy of the voter.” (emphasis added) Observers are not precinct officials, and should not be allowed to be so close to the voter as to examine a photo ID. The photo ID most likely to be used, a driver’s license, contains the voter’s date of birth, which G.S. 163-82.10B requires election officials to protect as confidential on voter registration records. If the law requires election officials to keep confidential a voter’s date of birth on registration records, the State Board’s duty to protect voters’ privacy surely impels it to prevent party observers from seeing it on photo IDs.

2. Filing challenges is inconsistent with the role of an observer in that it impedes the voting process. Observers may observe and, of course, may report their observations to others, but their role should end there.

3. The individuals whom parties appoint as observers are even less subject than are precinct officials to any filters that would screen out partisan zealots. If such zealots gain positions as party observers and thus access to the voting enclosure, they may use that access to disrupt unfriendly polling places with frivolous challenges. If that were to occur, many voters would likely be intimidated and effectively disenfranchised. Such tactics could turn election day into a nightmare and would reflect badly on everyone involved.

Summary

Petitioner urges the Board to initiate rule-making proceedings with respect to the three proposed rules set out in this Petition and to do so without delay. Petitioner suggests that the rules be adopted first as temporary rules. Petitioner notes that, under N.C. Gen. Stat. § 150B-21.3, if there are objections to permanent rules proposed by the Board, the effective date of the permanent rules could be delayed for many months.

Submitted, this the 18th day of December, 2013.

____________________________

William R. Gilkeson Jr.

Attorney, Bailey & Dixon LLP

434 Fayetteville Street, Raleigh NC 27601

919.828.0731

919.414.0790


CERTIFICATE OF SERVICE

The Petitioner certifies that on this day the foregoing Rule-Making Petition was served upon the State Board of Elections by depositing a copy thereof in the United States mail, postage prepaid, and addressed as follows:

PO Box 27255, Raleigh, NC 27611-7255

This the 18th day of December, 2013.

________________________________

William R. Gilkeson Jr.





[1] A petition for rule-making would also typically refer to the agency’s administrative rules that specify the procedure for submitting and considering a rule-making petition, but the Board has no such rules.

[2]G.S. 163-82.16 has long provided a procedure for voters and the election system to deal with official name changes. It protects both the integrity of the voter registration records and the voter’s right to vote, and it was not repealed in the new law.