Draft MEETING AGENDA Date: November 20, 2020 Time: 10:00 AM Location: Board of Elections Type: Special Scheduled Attendees: Thomas C. Pollard, Chair Rae Hunter-Havens, Elections Director Evelyn D. Adger, Secretary Joan Geiszler-Ludlum, Administrative Technician Jonathan W. Washburn, Member Caroline Dawkins, Elections Program & Outreach Derrick R. Miller, Member Coordinator Russ C. Bryan, Member Visitor(s): Sheryl Kelly, Assistant County Manager AGENDA ITEMS 1. Meeting Opening a. Call to Order b. Pledge of Allegiance c. Approval of Agenda 2. Public Comment and Questions Public Comment (2-minute limit) 3. General Discussion Other Elections-Related Matters 4. New Business a. Preliminary Consideration Hearing on Election Protest b. Recount of the NC Supreme Court Chief Justice Seat 01 5. Adjournment *Agenda packets are sent via email in advance of meetings. Draft Item # 1c Special Meeting New Hanover County Board of Elections November 20, 2020 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Draft ItemItem ## 22 Special Meeting New Hanover County Board of Elections November 20, 2020 Subject: Public Comment Summary: This is an opportunity for members of the public to provide comment on elections-related matters. Each commenter will be limited to two minutes. Board Action Required: Discuss as necessary Draft Item # 3 Special Meeting New Hanover County Board of Elections November 20, 2020 Subject: General Discussion Summary: This is an opportunity for discussion on other elections-related matters not included in the meeting agenda. Board Action Required: Discuss as necessary Draft Item # 43a Special Meeting New Hanover County Board of Elections November 20, 2020 Subject: Preliminary Consideration Hearing on Election Protest Applicable Statutes and/or Rules N.C. Gen. Stats §§ 163-182.9 and 163-182.10; 08 NCAC 02 .0110; 08 NCAC 02 .0114(a) Summary: On November 17, 2020, the New Hanover County Board of Elections, and 89 other counties, received an election protest regarding vote count and tabulation, and violation of election law or irregularity, consistent with N.C. Gen. Stat. §§ 163-182.9(b)(4)(a) and 163-182.9(b)(4)(c). Per N.C. Gen Stat. §163- 182.10(a), the Board must conduct a preliminary hearing to determine whether or not the protest substantially complies with N.C. Gen. Stat. §163-182.9 and establishes probable cause as to a violation of election law or irregularity or misconduct. The board should consider the complaint as filed at the preliminary hearing and will not take any evidence. It will determine at this meeting whether the protest substantially complies with the form requirement and whether it establishes probable cause of an outcome-determinative violation. Per 08 NCAC 02 .0114(a), the county board of elections shall dismiss an election protest if one of the following applies: (1) The matter fails to contest the manner in which votes were counted or results tabulated, or fails to allege a violation of election law or irregularity or misconduct sufficient to cast doubt on the results of the election; (2) The individual submitting the matter was neither a registered voter eligible to participate in the protested contest within the county nor a candidate for nomination or election in the protested contest; (3) The matter was not filed in accordance with G.S. 163-182.9 or was not filed on the form prescribed in 08 NCAC 02 .0111; (4) The protest is duplicative or was made for the purpose of delay; (5) The protest filing, taking into account the totality of the circumstances, fails to include evidence which, if true, substantiates the probable occurrence of an outcome-determinative defect in the manner in which votes were counted or results tabulated, or the probable occurrence of an outcome- determinative violation of election law, irregularity, or misconduct; or (6) The matter, including the initial filing and all subsequent oral or written submissions, fails to allege facts sufficient to constitute substantial evidence of the occurrence of an outcome-determinative violation of election law, irregularity, or misconduct. If the Board determines statutory compliance and probable cause following the preliminary hearing, the Board must set a date for a full hearing no later than 10 business days following the preliminary hearing. Notice must be provided, via written means established by the County Board of Elections, at least three business days prior to the date of the hearing (N.C. Gen. Stat. §163-182.10(b)(1) and 8 NCAC 2.0110). Document/s Included: Election Protest; Election Protest Procedures Guide Board Action Required: Discuss as necessary and action required Draft Draft Draft Draft Draft NEW HANOVER COUNTY FACTUAL BASIS & LEGAL ARGUMENT 6. Provide all factual allegations in support of your protest. If any fact you allege is outside the scope of your personal knowledge, you may attach affidavits from those who have personal knowledge of that fact. All facts you allege in connection with this protest must be true and accurate to the best of your knowledge and brought in the sincere belief that the facts alleged form a good faith basis to protest the conduct and results of the election. Absentee Mail Ballots Commencing on September 4, 2020 each North Carolina county board of elections (“County Board”) transmitted absentee ballots and ballot applications (in the form of container-return envelopes) to registered voters who had requested them. The applicable provisions of N.C.G.S. § 163, as amended by House Bill 1169, and the Numbered Memos promulgated in accordance therewith provided certain guidance with respect to the burdens imposed on voters seeking to vote by absentee ballot. Upon receipt at each County Board, such applications were to be examined for compliance with applicable laws and guidance provided by the North Carolina State Board of Elections (“State Board”). In addition, several court orders provided additional guidance to the County Boards. The process of review and approval of absentee ballot applications resulted in the occasional wrongful denial of voter applications for absentee ballots. The protestor alleges that these wrongful denials have deprived voters of their right to cast absentee ballots, thus, casting doubt on the apparent results of the election.1 A. Wrongful Rejection of Absentee Ballots – All Required Information Democratic Party volunteers reviewed absentee ballot container-return envelopes (“absentee envelopes”) in counties throughout the state. Some counties denied the Democratic Party its right to inspect absentee envelopes under North Carolina law and Numbered Memo 2016-25, thereby denying the Party and the protestor an opportunity to identify other absentee envelopes that would have met the criteria for Exhibits A-1 and A-2. The absentee envelopes associated with the voters listed in Exhibit A-12 appear to have all required fields completed and should have been approved by the Board for counting. Based on a review of data uploaded to the State Board website (hereinafter, “SEIMS data”), these voters’ ballots were not accepted. These ballots should be approved and counted. The absentee envelopes associated with voters listed in Exhibit A-2 appear to contain all required voter and witness information, except that some of the information was entered outside the prescribed field, and some of the witness address omit city, state, and/or zip codes. 1 To the extent these denials resulted from the failure of your county board to individually review and vote on each absentee ballot recommended by staff for disapproval, that would provide an additional basis for a protest under the State Board’s directive that “the board must individually review all ballot envelopes that: (1) have been recommended for disapproval by staff ….” Numbered Memo 2020-25 at 5. 2 For ease of transmission, the Exhibits are provided in PDF format. Counsel will provide the native Excel files upon request. Draft State law does not require a container-return envelope to be deemed deficient if a voter, witness, or assistant provides information or a signature outside of the prescribed field.3 The only requirement is that the voter and witness supply the required information on the envelope itself, and that the County Board be able to identify which signature belongs to the voter and which signature belongs to the witness/assistant, respectively. Based on a review of the SEIMS data, however, these voters’ ballots were not accepted. Moreover, state law and State Board guidance are clear that if an absentee envelope is missing the witness’s city, state, or ZIP code, the County Board cannot invalidate the envelope and should, instead, determine the correct address.4 Even if both the city and ZIP code are missing, a County Board must determine whether the “correct address can be identified” before rejecting the ballot.5 Specifically, County Board staff must use a tool—such as SEIMS, a county GIS website or office, or a similar tool—to look up the witness’s or assistant’s name and partial address and find a match. These ballots, therefore, should be counted. B. Wrongful Rejection of Absentee Ballots – “Received After Deadline” Numbered Memo 2020-22 requires County Boards to “conduct research to determine whether there is information in BallotTrax that indicates the date [the ballot] was in the custody of the USPS” and, further, to “conduct research with the USPS or commercial carrier to determine the date it was in the custody of USPS or the commercial carrier.”6 Exhibit B-1 lists voters who have a BallotTrax scan on or before November 3 but are marked as “Received After Deadline.” Under Numbered Memo 2020-22, these voters’ ballots must be counted. Exhibit B-2 lists voters whose ballots were received no later than November 5, including some received by November 3, which are also marked as “Received After Deadline.” A ballot that is received by November 3 must be counted.