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North Carolina is joining a group of Republican-led states that are imposing new restrictions on voting and exerting legislative control over elections boards.
Republican senators passed controversial bills that would make it harder for people who vote by mail or sign up to vote during early registration periods and have their ballots count.
They seek to restructure the state Board of Elections so the legislature would appoint members rather than the governor. Republican and Democratic legislative leaders would each appoint two members to the state board, for a total of eight, and one to each county board, for a total of four.
If an evenly divided elections board fails to pick a state director or chairman, the Senate leader or the House Speaker would make the appointment.
These moves in North Carolina follow Georgia’s 2021 law restricting voter access and exerting more control over that state’s elections board. Texas passed a law last month targeting elections administration in Harris County, home to Houston and the state’s biggest pool of Democratic voters.
The Brennan Center for Justice counted at least 11 states with 13 new restrictive laws passed from the beginning of this year through May. They make it harder to vote by mail or increase photo ID requirements for in-person voting or registration. Florida has a law that puts more restrictions and requirements on organizations that hold voter registration drives.
“What we’re seeing in North Carolina is what we’re seeing across the United States, especially in the South,” said Jeff Loperfido, interim chief counsel for voting rights at the Southern Coalition for Social Justice.
The changes are built on the myth of widespread voter fraud, said Robyn Sanders, counsel with the Democracy Program at the Brennan Center for Justice.
“Extensive research shows fraud is very rare,” she said. “Most allegations are baseless.”
Lies about voter fraud are used to convince the electorate there are problems that need to be fixed, she said. “This is not anything other than making it harder for people to vote.”
In North Carolina, Republicans want to shorten the window for timely return of mailed absentee ballots and require signature verification and two-factor authentication for those ballots.
North Carolina now requires two witness signatures or the signature of a notary public for absentee ballots. If the law passes, North Carolina would be the only state to require both signature verification and witness signatures, according to the National Conference of State Legislatures.
Trump ally wants to restrict college student voting in North Carolina
News outlets, including WRAL and WUNC, reported in early June that Republican Sen. Ralph Hise met with Cleta Mitchell, a lawyer who helped former President Donald Trump try to overturn the 2020 election. Hise is one of the election bills’ sponsors. Mitchell leads the Election Integrity Network, which works to impose voting restrictions and trains people to challenge elections.
Mitchell was recorded telling Republican National Committee donors in April that the states needed to crack down on college student voting. North Carolina was one of her targets, the Michigan Advance reported.
Independent journalist Lauren Windsor posted the recording online.
“I think we can fix a few things in North Carolina,” Mitchell said at the RNC retreat. “We now have a legislature controlled by the Republicans. If we can persuade the new Republican member to vote with us.” Mitchell was likely referring to Rep. Tricia Cotham, who was elected as a Democrat in November but switched parties in April. Her party switch gave House Republicans a veto-proof majority.
Senate Democrats have argued that Republicans’ proposed identification requirements for people who register during the early voting period would freeze out many college students living in dorms who don’t have documents, such as utility bills, that list an address.
Members of the North Carolina Election Integrity Team, the state chapter of Mitchell’s group, have spoken at Senate committee hearings, listing items in the Republicans’ elections bill that match the group’s priorities.
But they said they wanted more, including House Bill 772.
Partisan poll watchers push for greater access
After sitting dormant since it was filed in April, a House Judiciary committee debated and approved House Bill 772 on Wednesday. Cotham sits on the committee and voted for the bill, though she said she had “concerns and questions about the legislation” and issues she wanted to discuss.
The House bill is a grab bag of provisions sought by conservative poll watchers. Among other things, it would:
- Allow partisan poll watchers to move freely around polling places,
- Permit them to record inside polling places as long as they don’t photograph voters,
- Allow poll watchers to follow elections officials as they drive ballot boxes from polling locations to secure locations after polls close, and
- Make it harder to remove poll watchers who break the rules. An elections official who restricts a poll watcher in violation of the bill’s provisions could be charged with a high-level misdemeanor.
When asked in April about the bill, Patrick Gannon, spokesman for the state Board of Elections, said in an email that it would be difficult to enforce, and would create conflicts between voters and the poll watchers following them.
“Some voters may be uncomfortable with having an observer in close proximity, especially when marking their ballot,” he wrote. Making it a criminal offense for poll workers to restrict poll watcher access would create problems, he wrote.
“So not only will it be difficult to know where the line is for enforcement, but if a poll worker crosses that line (knowingly or not), they can be prosecuted. That kind of criminal provision sends a certain message to poll workers that may make it difficult to recruit and retain them.”
Texas passed a sweeping elections bill in 2021 that also included criminal penalties for people who work at the polls if they are said to have interfered with poll watchers’ movements.
The Brennan Center sued Texas over that bill.
“What’s happening in North Carolina, the legislation being proposed, is very reflective of national trends we’re seeing in some states,” said Sean Morales-Doyle, director of the voting rights program at the Brennan Center. “It’s reflective of the agenda of many in the election denialist movement, and it’s troubling.”
Proposal for elections boards compared to ‘dysfunctional’ federal commission
The Republican Senate’s restructuring calls for an even number of members on the state and county boards of election. Legislative leaders from both parties would have equal appointments. As it is now, the state Board of Elections has five members, with three from the governor’s party.
Several times in the past week Republican Sen. Paul Newton, one of the bill’s sponsors, compared the proposed new structure to the Federal Elections Commission. The FEC is responsible for civil enforcement of federal campaign finance law. By law, no more than three members of the six-member FEC can be from one party.
“Because this structure has worked at the federal level, we believe it can work at the state level,” Newton said as he introduced the proposal for 4-4 state Elections Board membership at a news conference.
However, a former FEC employee and one of its former chairs said in interviews last week that the structure hasn’t worked. Persistent 3-3 tie votes on the FEC render it unable to do significant work, they said.
“The FEC should never be a model for anything other than dysfunction,” said Kevin P. Hancock, director for strategic litigation at the nonprofit Campaign Legal Center in Washington, D.C. “If dysfunction is what they’re going for, the FEC is a perfect template.”
Hancock worked for the FEC in various capacities from 2010 to 2019. He and four of his colleagues at the Campaign Legal Center who are also former FEC staffers wrote in “Why the FEC is ineffective” that the need for four votes to take meaningful action has rendered it unable to enforce campaign finance laws.
The FEC was formed to have three members from each party to force bipartisan compromise and prevent partisan enforcement of the law, Hancock said. Compromise on significant issues is all but impossible in today’s politically polarized environment. “The deadlock it creates, given today’s environment, the agency might as well not exist,” Hancock said. “In effect, it is completely dysfunctional and gridlocked.”
Ann Ravel, a former FEC chairwoman, wrote a 2017 report which documented a sharp decline in assessed civil fines between 2006 and 2016, and an increase in deadlocked votes that prevented the commission from investigating complaints of campaign finance violations. Republicans decided to vote as a bloc to stymie action, which meant little work could be done, Ravel said.
“The way that it’s composed of 3-3 and requiring four votes is essentially a recipe for a stalemate,” she said in an interview.
Ravel was on the commission from October 2013 through March 2017. She was chair in 2015.
The environment was hard for FEC lawyers whose job it was to recommend investigations, she said.
“They were attacked by the three who did not agree with their positions,” she said. “They were attacked by negative comments, disparaging statements. It was really problematic at the agency.”
Still, Newton said last week that equal numbers on the election boards will foster bipartisan cooperation. “I’d rather have gridlock than partisan policy being rammed through over the minority party, ” he said. “But I’m not going to concede that that will happen here. If people don’t like what the process is if gridlock occurs, it forces a conversation. It forces people to work together and that’s what we’re trying to do.”
Voting rights groups have warned of scenarios where deadlocks on both county and state boards would result in early voting cut to the bare minimum, with one county election site open during weekday working hours and on one Saturday.
The bill does not say what would happen if elections officials deadlocked on routine duties or on the certification of elections.
“The restructuring legislation can have major and devastating consequences,” Sanders said. “It is silent as it relates to deadlock or stalemate. That’s deeply troubling and problematic.”
Sanders pointed to a News & Observer article that quoted Senate leader Phil Berger saying that deadlocked election certifications would go to the courts. Election results don’t become official until boards certify them.
“It would be my understanding — just like any other issues that are out there — if they’re unable to reach that sort of an accommodation, then there would be litigation that would follow,” Berger was quoted saying.
Sanders called the prospect of election certifications going to the state Supreme Court “alarming.” The state’s high court “seems pretty inhospitable to voting rights in general,” she said.
The Republican majority on the state Supreme Court so far has shown it is eager to side with Republican legislators in cases involving election laws.
The state Supreme Court took the unusual step of rehearing cases on partisan gerrymandering and voter ID this year that were first decided late last year by a Democratic court majority. Republicans on the court used their new majority to reverse last year’s decisions and hand victories to Republican legislators.
During Senate debate on the bill Wednesday, Newton said that if election boards cannot reach majority agreements on policy changes, those changes won’t move forward.
“North Carolinians are better off if the intent was to promote partisan policy in elections administration,” he said.
Many people have warned, as Democratic Senate leader Dan Blue did Wednesday, that having legislators appoint elections board members violates the separation of powers doctrine and amounts to the legislative branch improperly gathering more power for itself.
“This move is dangerous and it’s antithetical to the integrity of our elections and it’s totally opposite to the principles upon which this country was founded,” Blue said. “It undermines our uniquely American system of checks and balances.”
Newton said he expected a lawsuit over the bill.
“The bill will end up in litigation and the chips will fall where they may,” Newton said.
Democratic Gov. Roy Cooper had been able to use his veto stamp to hold off restrictive voting bills passed in previous sessions. From 2019 through 2022, the Republican-led legislature had not been able to muster the votes to overcome those vetoes. This year, with Republican veto-proof majorities in place in both the House and Senate, none of Cooper’s vetoes have been upheld so far.
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