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Election in a pandemic: Bipartisan election bill promised as others fight over NC's ballot rules

Posted May 21, 2020 4:58 p.m. EDT
Updated May 22, 2020 10:32 a.m. EDT

 Election sign.

— House leaders are close to filing a bill, with bipartisan support, changing state election rules because of the pandemic.

The measure has most of what the State Board of Elections asked for two months ago when it rolled out a laundry list of requests, Rep. David Lewis, R-Harnett, said Thursday.

There are key exceptions though: The bill won't make Election Day a holiday, and it won't cover postage costs on absentee ballots, both state board requests.

The bill would forbid the board from going to an all-mail-ballot election in November, something the State Board of Elections has not requested but has been a concern for conspiracy theorists nonetheless. Mail-in ballots are already available in North Carolina to any voter who requests one, and they would remain so.

Lewis, a top House Republican on election issues, confirmed some details of the bill Thursday and said it will likely be ready Friday after weeks of conversation. He said the bill would also include "a significant amount of money" for local boards of elections.

Update: The bill was filed Friday and is available online here.House Bill 1169House Bill 1169

The measure will have bipartisan sponsors, including Rep. Pricey Harrison, D-Guilford, one of the House's more liberal members.

"I think it's been a long time since we've had a bipartisan elections bill," Harrison said Thursday. "But this has like 90 percent of what the state elections board asked for. ... It seems to be a really good basis for protecting the 2020 election."

The news comes the same day a Republican-appointed commission shot down an elections request from the State Board of Elections, which has a Democratic majority appointed by Gov. Roy Cooper, and the board's state election director. That request would have given the director more power to dictate election procedures during the ongoing COVID-19 crisis.

Instead of going through the legislature, the request went through rule-making process state agencies use to flesh out the implementation details of state law. The Rules Review Commission's vote was unanimous, though there remains some disagreement over whether the change was even needed for the director to exercise the powers.

The issue may remain a flashpoint in the state's long-standing partisan back and forth over election laws. Lt. Gov. Dan Forest, Cooper's Republican opponent in the November gubernatorial election, put out a statement before the vote, saying Cooper's appointed elections board wanted to "undermine the integrity of our elections."

There are still multiple lawsuits pending in North Carolina, and they may help shape November's elections rules. Already, a court has put the state's voter ID requirement on hold, and there are other legal challenges to the state's absentee ballot rules, which were tightened last year after a ballot harvesting operation forced a do-over election in the state's 9th Congressional District.

Lewis said the new legislation will make it easier to request absentee ballots. It will also change the state's witness requirement for ballots from two signatures to one, addressing a criticism some Democrats have levied, given the need for social distancing.

Lewis said lawmakers are still discussing key issues before the Rules Review Commission Thursday: How long to allow absentee ballots to arrive after Election Day and when to count them.

Under current law, ballots must be postmarked by Election Day, and that wouldn't change under any of the proposals. But current law also requires that they be received no later than 5 p.m. three days after the election, and that may change because of an anticipated increase in absentee voting this November and the possibility of mail delays.

State Elections Director Karen Brinson Bell has also asked that county officials be given more time to count absentee ballots. Current law says ballots received before Election Day must be counted on Election Day. Brinson Bell asked the legislature to change that, so that ballots received by the Saturday prior to Election Day are counted on Election Day and later arriving ballots are counted on the day of the canvass.

She has also asked to extend the canvass to 14 days after an election, instead of 10.

The delayed count was part of the rule change submitted Thursday morning to the Rules Review Commission, fueling concerns that operatives will know how many votes they need to swing an election and simply produce enough absentee ballots to do so.

Lewis said he doesn't "really have any heartburn" over allowing more time, as long as ballots are postmarked by Election Day. He said state leaders plan to discuss the importance of these postmarks, which the Post Office doesn't always put on ballot envelopes, with new U.S. Postmaster General Louis DeJoy, who is from Greensboro.

"As long as that's done, I think we'd actually be OK with extending the amount of time that the ballot takes to travel," Lewis said.

The rule-making process on display Thursday is a tedious and typically ignored affair, but the State Board of Elections' request generated some 25,000 public comments and drew a number of people to the Rules Review Commission's meeting – held by conference call – who were told they couldn't speak unless they'd signed up in advance.

Several spoke anyway, interrupting the meeting enough that members indicated they'd change their remote meetings platform, moving to something that allows administrators to mute the line.

At one point, commission members agreed to pause the meeting, hang up and call in again – which the public was allowed to do as well – because someone failed to mute their line and was having an unrelated conversation that made it difficult to follow the commission's intricate proceedings.

Writ large, the state elections board's rule request would clarify that the COVID-19 pandemic counts as a natural disaster, empowering the elections director to move polling places and make other decisions, much as she would after a hurricane. Already, the director used that power to move the 11th Congressional District's runoff primary from May 12 to June 23, but there is some debate as to whether the pandemic triggers the natural disasters clause in state elections law.

Brinson Bell and her legal staff hoped to make a temporary rule to address the issue, and their submission also contained language on the timeline to process absentee ballots. Regular rule-making allows the General Assembly to get involved and block new rules, but the temporary rule-making process does not.

Former state Sen. Tommy Tucker, a Rules Review Commission member, said Thursday that state elections staff either misunderstood the rule commission's purview or was trying to pull "a devious stunt" to go around the legislature.

In the end, every member of the commission, which is appointed by the General Assembly, voted against the change.

Lewis said after the vote that he didn't see bad intention behind the proposed rules.

"I kind of hate the decision came out today," he said, "because I think the news tomorrow would have been that we have a really good elections bill to roll out."

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