Reasonable impediment, the unofficial version....or something like that.

I finally received some answers to the questions I submitted to the NC State Board of Elections regarding "Reasonable Impediment."  They come with an impediment of their own, however: the answers are not to be interpreted as an official statement from the NC State Board of Elections.  So that official policy everyone is looking for continues to be elusive.

Prior to Election Day or early vote:

Will standardized reasonable impediment affidavit forms be made available so voters may fill them out in advance and have all of their documentation ready prior to voting? I am assuming that the signature would have to take place in view of an elections official.

I am not aware of any plans to make the forms available to voters ahead of time.  I’ve attached a blank Reasonable Impediment Declaration form to this email.  It is very basic and really requires only that the voter check some boxes and sign.  Is there a reason that you think it would be helpful for these forms to be made available in advance?  I would be interested in hearing your thoughts, if so. 

(My response: it would save time on Election Day.)

Election Day or early vote:

1)  A voter without ID presents to the check-in table at the polling site and informs the election official that they do not have photo ID. I'm assuming the standard procedure will be for the election official to ask for the ID first.

Yes, the first thing that will happen is that a voter is asked to provide their photo ID.  Ideally, an election greeter at the voting place will be the first person a voter encounters and the greeter can provide information and assistance to voters without ID, getting them started in the process before the voter reaches the check-in table.

2)  What happens next? Does the election official then present them with options, or do voters need to know what they want to do? I am assuming the former.

You assume correctly, in that voters will not need to know what the next steps in the process are or ask for anything specifically.  Election officials at check-in are trained to hand off any voters who lack acceptable ID to the “Help Station,” where another election official who is able to devote their full attention to such issues will give voters all of their options in an environment which is typically more private than the check-in line.  This includes voters who present ID that might not be acceptable, such as ID’s that don’t meet expiration requirements.

3)  Assuming the voter has all the documentation they need, they then fill out and sign a reasonable impediment affidavit (or sign one they have prepared in advance, if that is an option) and vote a provisional ballot.

Maybe.  Not all voters will require (or be necessarily eligible to complete) a Reasonable Impediment Declaration just because they are a “voter without ID.”  For example, a voter who simply forgot their ID at home would not want to complete the declaration, as it requires the voter to attest that he/she has been unable to obtain one.  (Ultimately, it is up to the voter to declare his/her impediment, and it will not be questioned unless it is factually false.)  Of course, there are other options for such “voters without ID,” including presenting their ID at the county board of elections at a later time prior to canvass, or requesting an absentee ballot by mail if the deadline has not yet passed.  All of the voter’s options will be explained by the election official at the Help Station.  A voter completing a Reasonable Impediment Declaration can provide as their alternate form of ID either the last four digits of their SSN and their DOB, his/her voter registration card, or a copy of a utility bill, bank statement, paycheck, government check, or other government document bearing the voter’s current name and address to be included with his/her declaration.  If a voter is unable to provide this information or documentation at the time he/she completes the declaration and votes, the voter can do so at the county board of elections office at a later time up to 12:00 noon on the day prior to canvass.  (See, GS 163-182.1B(c).  You may have to look at the session law itself (S.L. 2015-103, section 8.(e)), in the event that the most current version of GS 163-182.1B is not yet appearing on the General Assembly’s website.  Let me know if you need help finding it.)  

4)  No election official in the polling place will make a judgment about the reasonableness of the impediment. If the voter requests this option, has the proper documentation, and fills out the affidavit and signs it, they will be given a provisional ballot to vote

Correct.  Election officials at the polling place are not a part of making any judgment whatsoever regarding a voter’s declaration.  Their task is merely to advise the voter of his/her options and assist the voter in completing the form if necessary.  As noted above, the voter will always receive a provisional ballot if the voter wants one, even if he/she does not have the alternate form of ID with them or is unable to provide his/her last four digits of SSN and DOB.  Election officials at the polling place really should not have any reason to make any kind of inquiry into the voter’s declaration at all, unless of course the voter asks questions. 

5)  No poll observers from political parties, nor anyone else in the polling site, may challenge the reasonableness of the impediment

Correct.  The only way that a Reasonable Impediment Declaration can be challenged is covered in G.S. 163-182.1B(b).  Any registered voter in the county can challenge the factual veracity of a declaration, but must do so in writing by submitting a form to the county board of elections, setting forth “clear and convincing evidence” that the declaration is factually false.  County boards of election are required by law to find a challenge invalid if it provides “only evidence regarding the reasonableness of the impediment.”  While I suppose it is possible for an observer (or any other registered voter in the county) to submit a challenge form on the day of the election, there will be no “hearing” or other proceeding on that challenge until the day of canvass, when all such challenges will be heard by the county board of elections.  It is important to note that the “reasonableness” of a voter’s impediment may never be challenged, by anyone, under the statute.

6)  If the voter's documentation is in order, is there anything that could disqualify them from submitting a "reasonable impediment" affidavit and voting a provisional ballot

Again, a voter does not even need to have his/her “documentation in order” to be eligible to complete a Reasonable Impediment Declaration (but that would certainly make things easier for the voter).  I can’t think of anything that would “disqualify” anyone from submitting the declaration, so long as they are willing to attest to the truth of the information they are providing.

  

Post Election Day:

1)  Will "reasonable impediment" provisional ballots be kept with all other provisional ballots and be subject to the same vetting process, or will they be separated and subjected to a different process?

I’m not 100% sure, but will find out for you.  I don’t see any reason why these provisional ballots would be treated any differently than provisional ballots cast for other reasons, other than that the county board of elections will look at the declarations when deciding whether the provisional ballot should be counted.  The statute directs the county board to count the provisional ballot unless it has “grounds, including an impediment evidentiary challenge by a voter … to believe the declaration is factually false, merely denigrated the photo identification requirement, or made obviously nonsensical statements.”  G.S. 163-182.1B.  In short, unless there really was not an impediment given at all or the impediment given was not true, the provisional ballot will be counted.

2)  Absent any evidence being presented to the contrary, will the "reasonableness" of the impediment be judged during this vetting process

A challenge to a reasonable impediment stated by a voter would be invalid if it only sought to challenge the “reasonableness” of the impediment given by the voter.  For example, if a voter stated that “family responsibilities” prevented him from obtaining acceptable ID, a challenge stating that “the voter has only one child and is married, and those responsibilities should not have prevented the voter from obtaining ID” would be a challenge as to the reasonableness of the impediment, and would therefore be invalid.      

3)  If so by whom?

The county board of elections is the entity that will determine whether a provisional ballot cast in conjunction with a Reasonable Impediment Declaration should be counted, but take note of my answer to the question immediately preceding this one. 

4)  Will a list of persons who filled out a "reasonable impediment" provisional ballot be available to the public?

I do not know of any plans to “publish” any such list, but I suspect that a person could make a request under the provisions of the N.C. Public Records laws to request documents pertaining to the Reasonable Impediment Declaration process.

5)  Will members of the public be able to "challenge" the reasonableness of the impediment during the provisional ballot vetting process.

Again, no.  Only the factual veracity of the declaration is subject to challenge.

6)  How will that process work? Who will decide whether or not the evidence presented is enough to disqualify the provisional ballot?

The county board of elections will conduct a hearing into any impediment evidentiary challenges according to G.S. 163-182.1B(b).  Ultimately, the county board of elections will make the determination as to the sufficiency of any evidence presented.  

7)  Assuming the voter presented all the proper documentation at the polling site on Election Day, what, if anything, could disqualify their provisional ballot during the post-election vetting process?

The provisional ballot and the Reasonable Impediment Declaration could be challenged, which could result in the ballot being rejected and not counted, but only if the challenge has brought forth clear and convincing evidence that the declaration was not true.  Additionally, if the declaration did not really provide an impediment at all, but only nonsensical statements (“I couldn’t get an ID because purple”) or statements which merely denigrated the photo ID requirement (“I refuse to show my ID because I think this law is bad”), the provisional ballot could not be counted.  Also keep in mind that there may be other issues with a voter other than a lack of acceptable photo ID.  For example, if the voter was not registered in the county, or was not eligible for some other reason like a felony conviction, etc., then the provisional ballot might not be counted for another reason regarding the voter’s eligibility.

8)  If disqualified, will the voter be notified and be given a chance to appeal  

All voters who cast a provisional ballot receive instructions on how to check to see whether their ballot was counted.  If a voter’s provisional ballot and declaration are the subject of an impediment evidentiary challenge, the voter will be notified and he/she has the ability and right to appear before the county board of elections at the hearing into the challenge, either in person or through an authorized representative, and present evidence in support of the factual veracity of the impediment.  There is no specific statutorily-granted right to appeal the decision of a county board not to count a provisional ballot, for any reason, of which I am aware.  However, any voter who was eligible to vote in the election may file an election protest under G.S. 163-182.9 if the voter feels that some violation of election laws, misconduct, or other irregularity has occurred.  That is a whole other topic that I can discuss with you if you would like.