Publisher's Note: This post appears here courtesy of the Carolina Journal. The author of this post is Theresa Opeka.
At their meeting on Wednesday, the North Carolina State Board of Elections (NCSBE) voted unanimously to hold a public comment period and meeting on proposed permanent rules for non-citizen list maintenance.
The four rules would establish how county boards would handle the information once they receive it from the state election board.
The board voted 3-2, along party lines, at their Nov. 25 meeting in favor of using a federal immigration-verification system to help identify non-citizens on the state's voter rolls.
Systematic Alien Verification for Entitlements (SAVE) is administered by the Department of Homeland Security (DHS) and is used by federal, state, territorial, tribal, and local government agencies to verify the immigration status and US citizenship of applicants seeking benefits, like Medicaid, or licenses.
Adam Steele, associate general counsel for the board, said at Wednesday's meeting that there are already two processes that trigger those identity questions and challenge processes. This includes the felon removal process and the jury excusal process, where if anybody informs a court when they've been called for jury duty that they shouldn't have to serve because they're not a citizen, that would be referred to the NCSBE.
While the new rules track the statutes that are already in place, they also expand on them.
"So, what these rules do essentially kind of flesh that out," Steele said.
"This is an administrative process to start, rather than one that's coming from the county board. It's different than the voter-initiated challenge process, but it would essentially be in terms of how the challenge gets entered. But after that, it would follow the same processes that are already in state statute. So this kind of expands on that."
Steele explained that the rules would be codified as a new chapter, Chapter 23, in Title 8 of the North Carolina Administrative Code.
The first rule, Rule 101, is a definitions rule that spells out certain terms used throughout the rules.
The second rule, Rule 102, covers the initiation of the process at the county board level. It states that within five business days after receiving the notice of non-citizenship from the state board, which received information from a government source, the county board will initiate the challenge process. The county then notifies the voter, and then they will have to set a hearing.
Steele said it is possible that the county boards already have records of US citizenship. For example, if someone is registering for the first time and their driver's license or Social Security number can't be validated, they could show something like a US passport, which would serve as a form of identification under the Help America Vote Act (HAVA), which county boards would record. Then, the challenge process would not proceed.
Rule 103 would cover the preliminary hearing where the challenger has the burden of proof to challenge information the county board received from government records from the state board. If the challenge voter does provide information, then the county board needs to take that into account and track it in accordance with the list maintenance statute.
He added that for the jury excusal part, it specifically says that the voter can provide information there, even at that first hearing, where normally it wouldn't be until the evidentiary hearing that they would provide their evidence. Then, if the county board moves the matter to an evidentiary hearing, the voter is again notified, and voters are being notified multiple times and given the opportunity multiple times to provide the information.
Rule 104 applies to the actual evidentiary hearing or the challenge hearing at the conclusion of the process. The voter is informed of the qualifications required to vote. They are asked to provide all the information they may have in their testimony, and then the county board would administer a final oath, where they essentially affirm they are a citizen.
Steele said that anyone, including the voter, can request that a subpoena be issued to require the challenge hearing to be recorded by a court reporter or just via video recording. This is because voter challenges can be appealed to the Superior Court in the county where they're heard.
The county board would have to provide the voter with all of the information that was sent in the first mailing again, just to make sure that they have all the information available to them as part of the process. It also requires that the county board continue the challenge hearing to a later date if the voter requests that.
"It's certainly possible that the voter may need more time to procure the document or have their status updated in the system," he said.
Other areas of the rule include if the challenge voter doesn't show up for the hearing, or if they don't have the physical document showing their citizenship.
"Even if they don't have an actual physical document showing their citizenship, the county board cannot dismiss that just completely out of hand," Steele said.
"They still have to take into account any other evidence or testimony that the voter may provide, and so then it just requires that the decision be entered and points to the statutes for the appeal process."
Board member Siobhan Millen asked what government information would be used to trigger the process, to which Steele replied that the jury excusal process and the SAVE system would be used.
She asked which information SAVE would use: Social Security Administration information, which she said is
"notoriously out of date and unreliable;" or US Citizenship and Immigration Services (USCIS) data, which she said,
"may or may not be accurate."
Steele said both and noted that the Memorandum of Agreement (MOA) with the SAVE program is in the process of being finalized.
"I do think these rules are necessary to proceed with now, especially because we do have our jury recusal program up and running, and we need rules to know how we're going to implement that," board member and Secretary Stacy
"Four" Eggers IV said, before making the motion to put out the rules for comment and setting a hearing date.
The public comment period will take place between Jan. 15 and March 16, 2026, and a public hearing is scheduled for Feb. 2 at 10am at the state board's offices in downtown Raleigh.
The earliest the rules could become effective is May 1.
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