GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION LAW 2005-2
SENATE BILL 133
AN ACT to restate and reconfirm the intent of the general assembly with regard to provisional voting in 2004; and to seek the recommendations of the State board of elections on future administration of out-of-precinct provisional voting.
The General Assembly of North Carolina enacts:
SECTION 1. The General Assembly makes the following findings:
(1) In 2003, the General Assembly enacted S.L. 2003-226, which contained a number of changes to the State's election laws, designed in part to implement provisions of the federal Help America Vote Act of 2002 (HAVA) in such a way as to avoid having separate laws for federal and State elections and otherwise to encourage and expand the exercise of the franchise. One such enactment was codified as G.S. 163-166.11, which spells out procedures for the casting of provisional official ballots. A voter's eligibility to cast a provisional official ballot depends on being a registered voter in the jurisdiction in which the voter seeks to vote. The "jurisdiction" in which a voter in North Carolina registers to vote is the county. This is the unmistakable meaning of G.S. 163-82.1 and has not heretofore been challenged or questioned.
(2) In S.L. 2003-226, the General Assembly expressly stated its intent to "ensure that the State of North Carolina has a system for all elections that complies with the requirements for federal elections set forth in" HAVA. It was then and is now the intent of the General Assembly that the provisions of HAVA be broadly construed and that they be implemented in North Carolina in a manner to ensure a unified system of federal and State elections in compliance with HAVA.
(3) When it enacted G.S. 163-166.11, it was then and is now the intent of the General Assembly that any individual who is a registered voter in a county but whose name does not appear on the official list of registered voters at the voting place at which that voter appears be allowed to cast a provisional official ballot.
(4) When it enacted G.S. 163-166.11, it was then and is now the intent of the General Assembly that all provisional ballots be counted for all those ballot items for which a voter was eligible to vote. In enacting G.S. 163-166.11 in 2003, the General Assembly was fully mindful of and intended to reinforce the fact that prior statutory enactments in 2001 had already recognized the right of a voter to cast a provisional ballot and to have that ballot counted for all items for which that voter was eligible to vote. See G.S. 163-182.2(a)(4). Even prior to 2003, the General Statutes recognized the right of a registered voter to cast a provisional ballot and to have that ballot counted for all those items for which the voter was duly qualified to vote.
(5) When it enacted G.S. 163-166.11, it was then and is now the intent of the General Assembly that the State Board of Elections act in a manner that would result in a single system for federal and State elections, rather than one system for federal elections and another for State elections. In enacting G.S. 163-166.11 in 2003, the General Assembly was mindful of and intended to reinforce the fact that it had already provided in 2001 in G.S. 163-166.7(c)(6) that the State Board of Elections would adopt rules to ensure that voters "not clearly eligible to vote in the precinct but who seek to vote there are given proper assistance in voting a provisional official ballot or guidance to another voting place where they are eligible to vote." The possibility of out-of-precinct provisional voting was thus recognized by the General Assembly as early as 2001.
(6) The law regarding provisional ballots does not rest solely on G.S. 163-82.15(e), which addresses the narrow circumstance of "Unreported Move[s] to Another Precinct Within the County." Though that statute mentions two ways in which precinct officials may process registrants, it is not exclusive. G.S. 163-82.15(e) is part of the statutory Article on voter registration, rather than on voting, and should be read in that context. It was enacted in 1994, before provisional voting was codified in North Carolina. The enactment of G.S. 163-166.7(c)(6) in 2001 is the authority giving the State Board of Elections the duty to apply the broader laws of provisional voting, including G.S. 163-166.11. Any reading of G.S. 163-166.11 that would limit that statute's provisions to the narrower class of voting situations governed by the earlier enacted provisions of G.S. 163-82.15(e) would ignore the long-standing principle of statutory construction that statutes relating to the same subject matter should be reconciled in such a manner as to effect the scope and meaning of the later enactment and read in a manner that would tend most completely to secure the rights of all persons affected by the legislation. It was then and is now the intent of the General Assembly in enacting G.S. 163-166.11 to expand the exercise of the franchise, not to limit it or to restrict it by the terms of earlier and narrower enactments.
(7) The State Board of Elections and all county boards of elections were following the intent of the General Assembly when they administered G.S. 163-166.11 and the earlier enacted statutes in G.S. 163-182.2(a)(4) and G.S. 163-166.7(c)(6) to count in whole or in part ballots cast by registered voters in the county who voted outside their resident precincts in the July 20, 2004, Primary, the August 17, 2004, Second Primary, and the November 2, 2004, General Election.
(8) Several hundred thousand registered North Carolina voters cast ballots outside their resident precincts during the one-stop absentee balloting ("early voting") period pursuant to G.S. 163-227.2 prior to the General Election in November 2004, during the two primaries in 2004, and then on the date of the General Election in November 2004. There is no statutory basis upon which to distinguish out-of-precinct voting that occurred on the date of the General Election in November 2004 from out-of-precinct voting that occurred during the First and Second Primaries in 2004 or that occurred during the period of one-stop absentee ("early") voting prior to the General Election of 2004.
(9) The General Assembly takes note of the fact that of those registered voters who happened to vote provisional ballots outside their resident precincts on the day of the November 2004 General Election, a disproportionately high percentage were African-American.
(10) The General Assembly notes that in addition to provisional voting on the date of the General Election pursuant to G.S. 163-166.11, the General Statutes abound with provisions that allow voters to cast votes outside their resident precincts:
a. Civilian absentee voting by mail, G.S. 163-226.
b. Military and overseas citizens absentee voting, G.S. 163-245.
c. One-stop absentee (early) voting, G.S. 163-227.2.
d. Voting in a voting place on a lot adjacent to the precinct, G.S. 163-128.
e. Temporarily voting in an adjacent precinct, G.S. 163-128.
f. Voting in a precinct outside the voting place where no suitable facility exists inside it or adjacent to it, G.S. 163-130.1.
g. Voting at a central location in the county by voters who no longer live in the precinct where their name is listed on registration lists, G.S. 163-82.15(e).
All those provisions were enacted prior to G.S. 163-166.11. Most were enacted decades before. As many as 1,000,000 people in North Carolina may have cast out-of-precinct votes using all out-of-precinct methods in 2004.
(11) It would be fundamentally unfair to discount the provisional official ballots cast by properly registered and duly qualified voters voting and acting in reliance on the statutes adopted by the General Assembly and administered by the State Board of Elections in accordance with its intent. Moreover, to subtract such ballots only from the count for the General Election of 2004 without also doing so for the First or Second Primaries of 2004 would create a bizarre result in which out-of-precinct provisional ballots are allowed to count for some elections but not others. The General Assembly did not and does not now intend to create such a system.
(12) Even if the State Board of Elections had misread the language and intent of the General Statutes concerning provisional voting, which it did not do, it has been the long-standing and hitherto unquestioned law of this State, confirmed by prior decisions of the North Carolina Supreme Court, that an innocent voter's ballot shall not be disqualified because of errors or omissions by elections officials. This fundamental principle was adopted by Justice Samuel J. Ervin Jr. in the case of Owens v. Chaplin, 228 N.C. 705 (1948) using the following language:
"We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake, or even the willful misconduct, of election officials in performing the duty cast upon them. The object of elections is to ascertain the popular will, and not to thwart it. The object of election laws is to secure the rights of duly-qualified electors, and not to defeat them."
See also Appeal of Judicial Review by Republican Candidates for Election in Clay County, 45 N.C. App. 556 (1980).
The General Assembly endorses and reaffirms this fundamental principle.
(13) It is the will of the people, as expressed through their representatives in the General Assembly, that the validity of the primaries and elections conducted in 2004 and certified by a county board of elections or the State Board of Elections, not be called into question by retroactively revisiting the propriety of provisional ballots cast by duly registered voters of a county.
(14) To avoid all doubt and remove any possible future question as to the General Assembly's plain intent with respect to the subject of provisional voting, and to avoid misinterpretation of any other statute, the General Assembly enacts Sections 2 through 5 of this act.
SECTION 2. G.S. 163-55 reads as rewritten:
Period for State Elections. - Every person born in the United States, and
every person who has been naturalized, and who shall have resided in the State
of North Carolina and in the precinct, ward, or other election district in
he the person offers to register and vote for 30
days next preceding the ensuing an election, shall, if otherwise
qualified as prescribed in this Chapter, be qualified to register and vote
in the precinct in which he resides: any election held in this State.
Provided, that removal Removal from one precinct, ward, or
other election district to another in this State shall not operate to
deprive any person of the right to vote in the precinct, ward, or other
election district from which he has removed until 30 days after his the
person's removal. The Except as provided in G.S. 163-59, the following
classes of persons shall not be allowed to register or vote in this State:
(1) Persons under 18 years of age.
(2) Any person adjudged guilty of a felony against this State or the United States, or adjudged guilty of a felony in another state that also would be a felony if it had been committed in this State, unless that person shall be first restored to the rights of citizenship in the manner prescribed by law.
(b) Precincts and Election Districts. - For purposes of qualification to vote in an election, a person's residence in a precinct, ward, or election district shall be determined in accordance with G.S. 163-57. When an election district encompasses more than one precinct, then for purposes of those offices to be elected from that election district a person shall also be deemed to be resident in the election district which includes the precinct in which that person resides. An election district may include a portion of a county, an entire county, a portion of the State, or the entire State. When a precinct has been divided among two or more election districts for purposes of elections to certain offices, then with respect to elections to those offices a person shall be deemed to be resident in only that election district which includes the area of the precinct in which that person resides. Qualification to vote in referenda shall be treated the same as qualification for elections to fill offices."
SECTION 3. G.S. 163-82.15(e) reads as rewritten:
"(e) Unreported Move to Another Precinct Within the County. - If a registrant has moved from an address in one precinct to an address in another precinct within the same county more than 30 days before an election and has failed to notify the county board of the change of address before the close of registration for that election, the county board shall permit that person to vote in that election. The county board shall permit the registrant described in this subsection to vote at the registrant's new precinct, upon the registrant's written affirmation of the new address, or, if the registrant prefers, at a central location in the county to be chosen by the county board. If the registrant appears at the old precinct, the precinct officials there shall send the registrant to the new precinct or, if the registrant prefers, to the central location, according to rules which shall be prescribed by the State Board of Elections. At the new precinct, the registrant shall be processed by a precinct transfer assistant, according to rules which shall be prescribed by the State Board of Elections. Any voter subject to this subsection may instead vote a provisional ballot according to the provisions of G.S. 163-166.11."
SECTION 4. G.S. 163-166.11 reads as rewritten:
"§ 163-166.11. Provisional voting requirements.
If an individual seeking to vote claims to be a registered voter in a jurisdiction as provided in G.S. 163-82.1 and though eligible to vote in the election does not appear on the official list of eligible registered voters in the voting place, that individual may cast a provisional official ballot as follows:
(1) An election official at the voting place shall notify the individual that the individual may cast a provisional official ballot in that election.
(2) The individual may cast a provisional official ballot at that voting place upon executing a written affirmation before an election official at the voting place, stating that the individual is a registered voter in the jurisdiction as provided in G.S. 163-82.1 in which the individual seeks to vote and is eligible to vote in that election.
(3) At the time the individual casts the provisional official ballot, the election officials shall provide the individual written information stating that anyone casting a provisional official ballot can ascertain whether and to what extent the ballot was counted and, if the ballot was not counted in whole or in part, the reason it was not counted. The State Board of Elections or the county board of elections shall establish a system for so informing a provisional voter. It shall make the system available to every provisional voter without charge, and it shall build into it reasonable procedures to protect the security, confidentiality, and integrity of the voter's personal information and vote.
(4) The cast provisional official ballot and the written affirmation shall be secured by election officials at the voting place according to guidelines and procedures adopted by the State Board of Elections. At the close of the polls, election officials shall transmit the provisional official ballots cast at that voting place to the county board of elections for prompt verification according to guidelines and procedures adopted by the State Board of Elections.
(5) The county board of elections shall count the individual's provisional official ballot for all ballot items on which it determines that the individual was eligible under State or federal law to vote."
SECTION 5. G.S. 163-182.2(a)(4) reads as rewritten:
"(4) Provisional official ballots shall be counted by the county board of elections before the canvass. If the county board finds that an individual voting a provisional official ballot is not eligible to vote in one or more ballot items on the official ballot, the board shall not count the official ballot in those ballot items, but shall count the official ballot in any ballot items for which the individual is eligible to vote. Eligibility shall be determined by whether the voter is registered in the county as provided in G.S. 163-82.1 and whether the voter is qualified by residency to vote in the election district as provided in G.S. 163-55 and G.S. 163-57. If a voter was properly registered to vote in the election by the county board, no mistake of an election official in giving the voter a ballot or in failing to comply with G.S. 163-82.15 or G.S. 163-166.11 shall serve to prevent the counting of the vote on any ballot item the voter was eligible by registration and qualified by residency to vote."
SECTION 6. The State Board of Elections shall make recommendations by April 15, 2005, for consideration by the 2005 General Assembly on administration of provisional voting in the future, taking into account the relevant experience in the 2004 elections in this and other states.
SECTION 7. This act is effective when it becomes law and, being declaratory of existing law, applies to all elections held after January 1, 2004, the effective date of G.S. 163-166.11.
In the General Assembly read three times and ratified this the 1st day of March, 2005.
s/ Charlie S. Dannelly
Deputy President Pro Tempore of the Senate
s/ James B. Black
Speaker of the House of Representatives
s/ Michael F. Easley
Approved 12:14 p.m. this 2nd day of March, 2005