Rules commission to review proposed voting system access restrictions | Eastern North Carolina Now

    Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is CJ Staff.

    The N.C. Rules Review Commission will consider Thursday two proposals to restrict access to information about voting systems in North Carolina. RRC staff have recommended that the commission reject both rules from the State Board of Elections.

    The first rule spells out a process for people to review vendors' information about certified voting systems used in N.C. elections. The second rule would require people reviewing that information to sign a nondisclosure agreement.

    A staff opinion issued Monday urges RRC to object to the first rule, based on "lack of statutory authority," "unclear or ambiguous" language, and "failure to comply with the Administrative Procedures Act." APA spells out state government's rule-making process.

    The unsigned memo raises a particular objection to part of the rule that would subject people to physical searches in connection with their review of voting systems.

    "A requirement that a person consent to a bodily search, or a search of their personal effects, could not have been reasonably expected based upon the proposed text of the rule," according to the memo. "The proposed rule was devoid of any reference to such intrusive searches. While the proposed rule stated that persons entering and/or leaving the facility 'may' be subject to 'inspection,' this term was undefined at publication in the North Carolina Registry."

    Another section of the proposed rule also attracted RRC staff's attention. "[T]he rule limits the Chairs of each political party to review and examine a voting system to once every two years," according to the memo. "The statute is silent on the issue of how many times an examination may be made."

    Elections officials defended the proposal. "Given how disruptive, time-consuming, and resource-intensive continuous management of these requests would be to the conduct of primaries and elections, a limitation on the number of requests is a reasonable procedure," according to a document from state elections officials. "A reasonable limit on request frequency, corresponding with the length of a general election cycle, does not materially diminish the right to access items placed in escrow by voting system vendors."

    RRC staff rebutted that argument. "The Board's response conflates the necessity or reasonableness of the rule with its authority to adopt the language," according to the RRC memo. "While the Board has authority to adopt 'procedures,' it is unclear whether a limitation on the number of times a party Chair may examine the voting system is a 'procedure.'"

    In a memo dated Wednesday, RRC counsel William Peaslee explained the staff's objection to the second rule on nondisclosure agreements. Once again, the memo cited a "lack of statutory authority," "unclear or unambiguous language," and a "failure to comply" with the APA.

    "Requiring authorized persons to enter into a contractual agreement and expose themselves to a potential cause of action and liability appears to exceed the Board's authority to establish procedures," according to the memo. "If the rule creates a cause of action to which the State is not a party, this rule well exceeds the authority granted to the Board.

    "[T]he authorized person would be contractually bound to submit copies of any notes taken during the authorized person's examination of materials. The recipient of the notes is ambiguous," Peaslee wrote.

    RRC records also show one formal letter opposing both proposed election rules. Raleigh businessman Jim Anthony notes in a letter dated Tuesday his "personal objection" to the rules dealing with "election data, ballot, and records access."

    "I contend that the public needs and deserves access to any data surrounding any election in order to independently verify any and all elections results through any means necessary and within reasonable periods of time following elections," wrote Anthony, a board member of the John Locke Foundation, which oversees Carolina Journal. "The proposed rule changes will unreasonably restrict public[] access to records that support the veracity and validity of elections."

    Gov. Roy Cooper recently dropped a two-year-old lawsuit against the Rules Review Commission. Cooper, a Democrat, objected in 2020 to the commission appointed by the Republican-led General Assembly. The governor offered no reason for his decision to abandon his lawsuit in October.

    The RRC meets at 9 a.m. Thursday in Raleigh.