Absentee voting begins this week, and early voting isn’t far off. But North Carolina voters won’t have to worry about recently proposed changes to absentee voting, photo ID exception forms or voting site conduct rules until next year because of a quirk in the law.
The State Board of Elections spent the summer drafting, reviewing and approving 15 sets of rules that would impact which absentee ballots are counted, how election officials deal with photo ID exception forms and what level of noise is allowed outside voting sites, among other issues.
Last week, the Rules Review Commission approved those rules, but in each case, more than 10 people formally requested legislative review. When that happens, there’s a delay in implementation to give state lawmakers time to review and potentially reject the rule changes.
Since lawmakers are unlikely to return to Raleigh before the election, most of the new rules will have to wait until the 2027 election cycle to go into effect.
However, State Board spokesperson Jason Tyson said the board might take an alternative path during its next meeting to implement a few of the less controversial, more administrative rules specifically for the upcoming election.
From numbered memos to permanent rules
The State Board regularly issues guidance about how to implement or interpret election law to county election boards through Numbered Memos.
These memos might tell election officials how to adapt to mid-election natural disasters, explain recount procedures or direct county boards on which ballots should or shouldn’t be counted.
But while Numbered Memos are policy guidance, they aren’t law or official administrative rules themselves. That’s created a gray area where election officials can sometimes get away with not following instructions in memos.
Also, some older memos aren’t relevant anymore. Navigating through them all can prove difficult for election officials.
“The way you run a recount is not going to change,” State Board chief of staff Brian LiVecchi said at the time. “We should have that. We should not have to provide that guidance to the counties every time it rears its head. They should have that in rule somewhere.”
So, the board decided to organize the memos. They created a page to preserve outdated and rescinded memos, and began putting other guidance through the permanent rule process. That process entails public hearings, comment periods and formal review by the Rules Review Commission. If approved, those rules have greater enforceability than numbered memos.
Throughout the summer, the board presented 15 proposed rules. They dealt with recounts, voting sites, photo ID exception forms and absentee ballots.
Most rules aligned very closely with current guidance, or only included small tweaks. But a few included more substantial changes to election administration.
Voters objected to all of them, which means they won’t go into effect in time for the upcoming election.
Voting site regulations
One proposed rule would limit noise outside voting sites.
To avoid disrupting voters, State Board Republicans voted to allow chief judges to enforce volume levels. If the judge can hear noise from outside while inside the voting enclosure, and that noise either lasts for over a minute or happens repeatedly, they can tell the noise-maker to lower the volume. The rule also bans sound amplification devices like speakers and megaphones.
State Board Democrat Jeff Carmon said he understood the desire to keep voting enclosures quiet, but thought banning speakers was “overregulating.”
He was concerned about “dampening excitement,” particularly among younger voters who may be encouraged to turnout by events like Party at the Polls.
Fellow Democrat Siobhan Millen said the rule would be difficult to enforce, and could be a First Amendment violation.
“If some voters are bothered by music from DJs at the polls, we should listen to that,” she said. “But I think these rules are an overreaction to a few people's complaints.”
During the Rules Review Commission meeting, Democracy Out Loud member Bob Rodriguez said the rule wasn’t clear enough. He suggested defining decibel levels, duration and distance in the rules.
Under state law, every voting site has a buffer zone and an electioneering zone. The buffer zone must be an area between 25 and 50 feet from the entrance of the voting place. Electioneers passing out campaign literature, advertising or doing other election-related activities must stay outside that zone to give voters space.
The proposed rules require chief judges to consider walkways voters may use to get inside the voting site when determining where the buffer zone should be. They also allow judges to move buffer and electioneering zones if weather conditions, safety concerns, construction activity or access disruptions warrant it.
North Carolina Election Integrity Team President Jim Womack said the rules could limit free speech.
He said election officials cannot regulate speech on public sidewalks or public parking lots, since they are free speech areas. The Supreme Court and appellate courts have repeatedly rejected "impermissible burdens” like that, he added.
Absentee voting rules
When a voter requests an absentee ballot, they get two envelopes: a container-return envelope to put their ballot inside, and an outer envelope to put the container-returned envelope and a photocopy of their photo ID or exception form inside. Both envelopes are supposed to be sealed, and not reopened.
For years, there’s been confusion — and lawsuits — over what to do when a voter doesn’t follow the instructions exactly right. A set of rules looks to clarify what election officials should do in these kinds of scenarios.
If the container-return envelope is unsealed, or appears to have been opened and resealed, and it does not come with an outer envelope or that is also unsealed, then election officials must spoil the ballot. If there are still more than three days before Election Day, they mail out a new absentee ballot package, but if not, they let the voter know they’ll have to vote in person.
Durham County voter Trey Kennedy told commissioners that three-day timeline placed an “undue burden on voters.”
“Postal mail within three days is commonly known to be unreliable anywhere, including locally,” he said.
If the container-return envelope is sealed properly but the outer envelope isn’t, then the ballot will count. If the container-return envelope is unsealed but the voter seals it in front of an election official while delivering it in person, it’s also good to go.
However, if the outer envelope is sealed, but the container-return envelope is unsealed or appears to have been opened and resealed, that’s marked as an irregularity. Then, election staff will let the voter know within a day of noticing the issue, and ask them to attest in writing whether they sealed the container-return envelope.
If the voter says they sent out the absentee ballot package the way it was received, county boards cannot reject their ballot solely based on the envelope issue. But if the voters says they did seal envelopes differently than the way they were received, their ballot is spoiled.
The Southern Coalition for Social Justice sent a letter objecting to these rules. They said they “unnecessarily increase burdens on election administrators and voters,” don’t serve the public interest and are not “reasonably necessary.”
Photo ID rules
Under the proposed rules, voters who do not present their photo ID would have to undergo additional steps to have their ballot counted.
They would have to fill out a photo ID exception form indicating why they don’t have an ID. Acceptable reasons include a lost or stolen ID, religious objection to being photographed, natural disaster or another reasonable impediment, like a lack of transportation, disability or illness keeping a voter from obtaining a photo ID.
Under current rules, county election boards may only reject ballots based on a lack of photo ID if they unanimously find that the exception form is false. The proposed rules would lower that unanimous threshold to a majority vote of county board members.
Opponents of the change say they are concerned it could lead to partisan decision-making.
Republican State Board member Angela Hawkins said she reviewed hundreds of exception forms during her years as a Wake County election board member. They were rarely able to prove that what a voter said on their form was false, she said. Since state law does not allow board members to use speculation in their decision whether to count ballots, Hawkins said the rule wouldn’t change much.
A Southern Coalition for Social Justice objection letter alleged that some county board members have gone past the falsity standard in the past, and instead voted based on “reasonableness” standards or speculation. Several Democracy Out Loud members shared a similar concern during the commission meeting.
There’s no objective, evidentiary standard for what is considered a falsehood, Wake County voter Deb Oronzio said.
“State law explicitly requires that exception forms be construed liberally in favor of the voter,” she said. “That's what we want, right? Lowering the rejection standard from a unanimous board decision down to a bare three-to-two simple majority vote strips away this statutory safeguard without legislative authorization.”
Recount changes and what’s next
After Senate Leader Phil Berger, R-Rockingham, narrowly lost his primary to Rockingham Sheriff Sam Page, there were a series of recounts.
Three proposed rules clarify the recount process in light of that recent experience. They explain how officials should conduct recounts in greater detail, add an extra day for election boards to start a secondary hand-to-eye recount if requested and allow county boards to approve use of unaffiliated voters to be part of bipartisan teams conducting recounts.
These rules barely got enough objections to delay implementation.
Tyson said a few of the 15 rules presented to the commission could apply to the 2026 election, depending on what the State Board decides in its Sept. 2 meeting. The board can still use Numbered Memos to provide temporary guidance to county election officials on how to conduct elections.
But they will steer clear from the hot-button issues while the longer rulemaking process plays out, Tyson said.
This article first appeared on Carolina Public Press and is republished here under a Creative Commons Attribution-NoDerivatives 4.0 International License.