The North Carolina State Board of Elections (SBE) adopted several rule changes on July 16. The most controversial was a change from a requirement that county elections boards need a unanimous vote of board members who find grounds for a photo ID exception form to be false to a majority vote.
The new rule better aligns with the text of state law and allows for a full hearing to determine whether the exception form is false and whether the related ballot is legal.
The revised rule better follows state law
As I noted in a June 9 public comment to the SBE on the proposed rule change, the board had made a mistake in 2024 when it added a unanimity requirement for finding grounds to believe a voter ID exception form was false:
The State Board of Elections erred when it added the unanimity requirements in 2024. Those unanimity requirements are not found in the relevant statute. 163‑166.16(f) states, “the county board of elections shall find that the provisional ballot is valid unless the county board has grounds to believe the affidavit is false.”
Compare that to 163‑166.16.(b), which does require a unanimous vote, “A voter shall be permitted to vote unless the judges of election present unanimously agree that the photo identification presented does not bear a reasonable resemblance to that voter.”
While the State Board is not specifically prohibited from setting different voting requirements, when the General Assembly wishes to require unanimity in election procedures, it will enact it into law. The full context of the statute makes clear that the legislature did not intend for a unanimous vote to be required for county boards to find “grounds to believe the affidavit [for not having an ID] is false.”
Here is my 2023 post on why the unanimity requirement was a mistake. The board approved it early in 2024.
The affidavit falsehood finding is part of a larger process
So, the revised rule better follows state law, but is it a better policy?
It is.
North Carolina requires a photo ID to vote. If a prospective voter does not present an ID, they can cast a provisional ballot and either return with their ID or submit an ID exception form (affidavit).
In cases in which the county board, by a majority vote, found that they have grounds to believe the ID affidavit is false, the result is not an automatic rejection of the ballot, but an opportunity for the prospective voter to address the board’s preliminary finding. Here is part of that process, as stated in the rules (08 NCAC 17 .0101(e)(2)):
If the voter has completed the affidavit as required in G.S. 163-166.16(d) and is otherwise eligible to vote, the county board shall count the provisional ballot unless the county board finds by majority vote that the affidavit is false. The county board shall substantiate any finding of falsity with grounds recorded in a written decision, and those grounds shall be based only on facts and not speculation. Before disapproving a voter’s provisional ballot because of a finding of falsity, the county board shall provide the voter advance notice and an opportunity to address the county board on any grounds that the county board is considering regarding the falsity of the affidavit at the meeting at which the voter’s provisional ballot will be reviewed and considered by the county board. The notice shall identify the specific reasons the county board is considering the affidavit to be potentially false and inform the voter how the voter may address the reasons for potential falsity, which shall include the options to provide a written explanation or documentation or to address the board at a meeting in person.
The new rules strike a better balance between voting access and election security.
