Ballot Harvesting "Legalized" by the NC State Board of Elections - TribPapers

Ballot Harvesting “Legalized” by the NC State Board of Elections

Photo by Georg Arthur Pflueger.

Asheville – September 9, 2022 is the beginning of mail-in voting for the November 8 election in North Carolina, one of the battleground states in this election cycle, and probably in 2024 as well. It is expected that certain of the races will be hotly contested and that the winner’s margin of victory may be slim.

On this backdrop, the US District Court for the Eastern District of North Carolina and the Democrat-controlled North Carolina State Board of Elections (NCSBOE) have, as of August 29, changed the rules as to how a “disabled person” may submit a mail-in ballot in this and all future elections. Specifically, they have changed who may provide “assistance” to a disabled person in requesting, filling out, signing, and submitting a mail-in ballot.

Now, “any person” who the disabled voter requests assistance from may carry out all of the above steps for the voter. For voters living in nursing homes and similar facilities, the person rendering assistance can even be “an elected official, political party officeholder, or candidate.”

Prior to this change, North Carolina law limited the people who could assist a disabled voter to a “near relative,” the voter’s guardian, or a MAT (Multipartisan Assistance Team), comprised of members of more than one political party. Through these limitations, disabled voters who might be vulnerable to undue influence were protected from such influence on their votes. These laws also prohibited ballot harvesting by partisan operatives.

On September 9, 2021, Disability Rights North Carolina (DRNC) filed suit in the Eastern District Court of North Carolina against the NCSBOE, contending that North Carolina’s rules for assistance to disabled voters deprived them of their right to the voting assistant of their choice. DRNC relied on Section 208 of the Voting Rights Act of 1965, which “gives voters who require assistance to vote because of blindness, disability, or inability to read or write the right to assistance by a person of the voter’s choice,” so long as that person is not an agent of the voter’s employer or of the voter’s union. After an initial motion to dismiss the suit was denied, DRNC and the NCSBOE agreed on an expedited resolution of DRNC’s motion for summary judgment, which resulted in Judge Boyle’s order of July 10, 2022, finding that North Carolina’s provisions violated the Voting Rights Act.

On August 29, 2022, less than two weeks before the start of mail-in voting, the NCSBOE issued Numbered Memo 2022-11 implementing Judge Boyle’s ruling.  NCBSOE Numbered Memos are the means by which the NCSBOE promulgates the voting rules which must be followed by each of the 100 county boards of election in conducting elections. Memo 2022-11 provides detailed rules for assistance to disabled voters.  These rules apply to persons in nursing homes and similar facilities, but also to all disabled persons, wherever they may reside.

The rules are as follows:

While blindness and inability to read or write are clearly-defined causes of the need for assistance, “disability” is defined broadly as a “substantial limitation on the ability to perform everyday things-such as seeing, hearing, walking, standing, speaking, reading, concentrating, thinking, and writing-” But after setting forth this broad definition, and noting that “All of the examples of everyday activities listed above could (emphasis added) pertain to some aspect of the absentee voting process.”, the memo states, “It is not for the county board to inquire into the specifics of a voter’s attested-to disability that renders the voter in need of assistance.  If the assistance portion of an otherwise valid request form or envelope is properly completed, the county board shall approve it. ” So, no one can examine the bona fides of a claim of disability for purposes of assisted voting. And implicit in this rule is that the county board should also not inquire into whether the disabled voter ever asked for assistance. But these are the two pre-requisites for Judge Boyle’s ruling under the Voting Rights Act that assistance by “any person” can be provided.

Worse, if a disabled voter’s near relative is concerned about undue influence on their disabled relative’s vote, and contacts the county board to warn them, the county board is advised to “refer them to the State Board’s Investigations Division”.  This remedy does not affect the counting of the questioned vote, and is unlikely to be pursued by the near relative.  It is doubtful that the NCSBOE has the manpower to timely investigate the large number of complaints that could arise. 

The result of these rules changes is to permit partisan “vote assistors” to approach any North Carolina voter to offer their “assistance” with obtaining and completing the voter’s ballot.  If the voter agrees (in return for what, exactly), and the assistor properly completes the ballot application, NO ONE can question the voter’s disability to vote or his request for assistance. Even if his relative has concerns of undue influence, the local board can do nothing.  

The NCSBOE has just legalized ballot harvesting of the very sort they prosecuted three years ago in the Leslie McCrae Dowless case in North Carolina’s 9th congressional district. Nothing in their new rules would bar a party from hiring vote assistors to approach “disabled” voters, or from paying them on a per vote obtained basis.