Election registration system may have skirted the law
Posted March 1, 2013
Updated March 7, 2013
Raleigh, N.C. — Two members of the North Carolina State Board of Elections and the chairman of the state House Elections Committee say a program used by the Obama campaign to register North Carolina voters violated the spirit, if not the letter, of the state's election laws.
The system allowed users to fill out and remotely sign a voter registration application using their phone or tablet computer. By signing the device's screen, a user would control a remote pen that applied their signature to paper.
"This particular method has at least the appearance of an attempt to skirt the current law," said Rep. David Lewis, R-Harnett, chairman of the House Elections Committee. The state currently forbids online voter registration.
Gary Bartlett, director of the elections board, said the process met all the requirements for a "wet" signature laid down by North Carolina law. The forms are not submitted electronically but mailed to county boards of election.
"We had legal counsel inside and outside research it, and they came back with the same answer," Bartlett said.
Four of the five current members of the State Board of Elections say they were never informed of the program.
"I think the staff mistakenly interpreted the law. They should have passed it by the State Board of Elections before approving it unilaterally," said Charles Winfree, a Republican lawyer from Greensboro and longtime board of elections member.
Asked if the current board would have approved the program, Winfree said, "No, we would not have approved it, I don't think."
Larry Leake, a Mars Hill Democrat, lawyer and the current chairman of the board, said he did not know about the program until Winfree called him this week.
"Had we been having this conversation 24 hours ago, I would not have known what you were talking about," Leake said. "We're certainly looking into it."
Number of users is unclear
The appeal of a completely automated system is clear. Voters become registered without having to print or mail a form. For those trying to ensure that as many like-minded people are registered as possible, the process removes the obstacles that voters used to paying taxes and water bills online may see as unreasonable.
But critics say it could open the state to voter fraud, allowing those who want to stack voter rolls with fake names to do so from the comfort of home.
Roughly 11,000 of North Carolina's 6.4 million voters – less than 0.2 percent – may have used the system, designed by Allpoint Voter Services in Oakland, Calif., according to the Civitas Institute, a conservative think tank that recently raised questions about system.
"That would be the highest number it possibly could be," Bartlett said.
Once counties receive a voter registration application, nothing marks the source of that application, election staffers said. So there is no notation in the statewide election database that would indicate how many registrations came in through the system.
Leake, Winfree and fellow elections board member Robert Cordle, a Charlotte Democrat, all served in 2011 and 2012 when Bartlett and his staff approved the signature program. The three say they were never told about it, although Cordle said it appeared the staff had proper legal opinions indicating the registration system was valid.
That said, Cordle added, "I think we'd have all liked to have known about it."
Jay Hemphill, a Republican member of the board from Raleigh who was appointed in 2012, said he was also uncomfortable with the system.
"I'm learning more about it, but what I know I'm not comfortable with," he said.
North Carolina law generally prohibits online voter registration systems like those used in states such as Oregon and Utah. In most cases, state law requires voters to sign a physical document that is then delivered to a local board of election.
Veronica Degraffenreid, elections liaison with the State Board of Elections, said staff reviewed the system in 2011 and tested it in 2012. It was her understanding that the remote pen was applying the signature at the same time the user signed the phone, not storing it and applying it to paper later.
"There would be no basis for not processing that signature under the law," Degraffenreid said.
A spokesman for Allpoint could not be reached Friday.
Winfree said that, regardless of whether the signature is applied instantly or there is a time lag, it is clearly being transmitted electronically and the form is being completed online.
"That to me is a distinction without a difference," he said.
System was not well known
Elections board members are not the only ones who said they didn't know this remote signature process existed.
"We would have used it," said Dallas Woodhouse, state director for Americans for Prosperity. His group was active during the election, encouraging voters to vote early by mail through a service that facilitated obtaining and submitting the forms.
Woodhouse said that the board did not advertise that the remote signature system was legal.
"They didn't tell anyone else other than the Obama people," he said, calling that "a moral failure" on the part of the board of elections.
Allpoint received payments, including $25,000 in August 2012, from the Obama campaign, according to Federal Election Commission records.
The Republican National Committee has also paid Allpoint for its voter registration service.
"It's one thing for the DMV or some other government agency to collect these applications. I do have a concern about a vendor that may have a close relationship with a campaign do it," Winfree said.
Bartlett brushes aside this criticism, saying that the board wasn't approving anything they viewed as legally new.
"All this conspiracy stuff is just ludicrous," Bartlett said. "We did not know who Allpoint was working for."
News of the system was reported during the election. A story by The Associated Press ran in The Charlotte Observer and news websites throughout the state. The political and technology news website Tech President also wrote about the system more than once.
Scott Laster, a lobbyist who was executive director of the North Carolina Republican Party, wrote to the board in September asking about the program. Don Wright, a lawyer for the board, replied with a legal memo that outlined how the remote signature program worked. Laster replied "Thank you for the information and for the clarification."
In an interview this week, Laster said he still had questions about the system
"It felt like there was more conversation to be had," he said, but at the time, he was too busy to pursue the matter further.
That pursuit may come this spring. Lewis said the House Elections Committee may hold hearings about the matter, and Leake and Winfree said it is possible the state board may discuss the issue.
Program touches a political and practical nerves
Bartlett said Friday that he still thinks the Allpoint program complies with current law. That said, he added that, had he known that board members and lawmakers would be upset, he would have informed them.
Barlett's job often straddles the worlds of practical, nonpartisan administration and political reality. In 2009, he asked Susan Nichols, a special deputy attorney general who consults on election matters, for an opinion as to whether online voter registration programs would be legal. Such voter registration systems would not have used "remote signatures" but rather an all-electronic process.
Bartlett said he withdrew the request after consulting with Nichols and other staff members. As he recalled, online registration may be legal but would have provoked a political firestorm.
Two years later, when Allpoint asked about whether its system would be legal, Bartlett said his staff decided it conformed to current law. Nichols was once again consulted on the legal opinion drafted by Wright and has never indicated she disagreed with it, but she has never formally or legally "concurred" with it.
The issue is wrapped into the politically sensitive topics of voter fraud and voter identification. Republicans have long argued that North Carolina does not do enough to secure the ballot, and GOP legislators are expected to soon move legislation requiring voters to show a photo ID when they go to the polls.
The Board of Elections will soon see turnover. Board members' terms will expire in April, and the board now split between three Democrats and two Republicans will flip to GOP control. That new board will be responsible for reordering the election staff.
As for those who registered with the service, anyone who showed up to the polls would have had to show ID as a first-time voter. It is unclear at this point how many of those who registered through Allpoint's system showed up to vote or have since been placed on "inactive" status because local boards of election could not verify their status.
Winfree said his immediate concerns about the Allpoint program are more practical. For example, he said, when someone fills out a conventional voter application, they are subject to perjury charges if they provide false information. It is unclear, he said, whether someone who signs through this electronic process would be subject to the same sanctions.
"If we do it, we need to be really careful with it," Winfree said. "I don't want to do anything that's going to undermine the integrity of the election. It would have to be airtight before I would support it."