Response from Henderson Board of Elections Member, Linda Rebuck, To the False Accusations by the North Carolina State Board of Electionsl This is a first amendment issue and witch hunt by the out-of-control board.
From: "Bell, Karen B" <Karen.Bell@ncsbe.gov>Sent: Sunday, August 25, 2024 5:04pm Cc: "SBOE_Grp - Legal" <Legal@ncsbe.gov>, "Gannon, Patrick" <Patrick.Gannon@ncsbe.gov>Subject: Your recent letter
Ms. Rebuck, (bcc: State Board Members and county election directors)
KBB: We write to express concern about a letter that you wrote that was forwarded to us by the elections director in another county, who received it from a state legislator asking her to respond. Your letter has been forwarded to a wide audience, and unfortunately, it contains false and misleading statements, and partisan remarks.
Linda: My letter was not sent to you. It was sent to state legislators in response to false and misleading information from the North Carolina State Board of Elections (NCSBE) contained in the procedures and guidance regarding registration and voting in North Carolina pursuant to the Uniformed and Overseas Citizens Absentee Voting Act (UOCAVA).
We are forwarding your letter and our response to the five members of the State Board of Elections and to all county directors so they can respond as necessary if they receive inquiries. This has required State Board staff to spend our limited resources drafting this letter and researching and providing the facts.
Then you should be aware that the information from your office is contrary to state and federal law.
KBB: We are always available to county board members with questions or concerns about election administration, and we hope that in the future you will reach out to us should you need clarification to avoid the potential spread of false or misleading information, which undermines our common goals of administering elections according to the law and promoting confidence in our elections.
Linda: “I am a member of the Henderson County Board of Elections and have served on the Board for over 6 years. I am frankly very discouraged about the upcoming election. I want to strongly state my belief that if you do not intervene immediately either legislatively or legally, we are going to lose NC to the Dems in November which will likely mean we lose the country. The responsibility will be yours, one way or the other.”
KBB: Given the partisan statements in the above, we remind you of the requirements of Article 4A of Chapter 163 of the North Carolina General Statutes. Whether or not the statements violate these provisions, it undermines the public’s confidence in the fair administration of elections if their elections officials are widely communicating their desire for a particular outcome in an election they oversee.
Linda: The statutes you cite are directed at public statements, or statements intended for public dissemination, that support or oppose a clearly identified candidate for office. My communications to a group of legislators of my political party were intended for them, not for public communication or dissemination and there is no support or opposition to any clearly identified candidate for office. Accordingly, your effort to intimidate me for the exercise of my First Amendment rights to petition the members of the North Carolina General Assembly regarding problems and issues in terms of your agency’s failure to properly enforce the laws of the State of North Carolina and the United States Code are not appreciated and, further, are legally incorrect. My communications with the legislators at no time referenced in any way a clearly identified candidate for office, nor did my communications support of oppose any such candidate.
Linda: “I am aware that Henderson County has recently received hundreds of new UNOCAVA (Overseas Civilian) applications.” There is NO requirement to verify these people AND they do NOT have to provide ID when sending back their vote (by mail or email).”
UOCAVA, which stands for Uniformed and Overseas Citizens Absentee Voting Act, is a federal law prescribing specific procedures for military and overseas citizens to be allowed to vote in federal elections. Our state has adopted laws under Article 21A of Chapter 163 to carry out these procedures. When military and overseas citizens register to vote under these procedures, they typically provide either their Social Security Number or driver’s license on the prescribed federal form. When county officials input those values into the statewide database, the statewide database automatically attempts to validate those numbers with the DMV and Social Security Administration. For civilian voters, if a number does not validate, state law requires the voter to provide an alternative form of ID before they vote for the first time. UOCAVA voters are expressly exempt from this requirement by state statute and have been for nearly 20 years. GS 163-166.12(f)(3).
When a military or overseas citizen voter submits their ballot, neither federal nor state law requires them to provide ID when returning their ballot.
The problem that I called to the attention of the legislators is the failure of the NCSBE to provide the forms and procedures necessary to comply with both federal and state law under UOCAVA for registration, not voting by mail. The NCSBE’s guidance provides that "Unlike civilian voters, North Carolina law expressly exempts UOCAVA voters from the requirement to provide HAVA ID if the number fails to match across agency databases. See GS 163-166.12(f)(3)." However, that provision of the statute (GS 163-166.12) only references what is required to be submitted WITH the absentee ballot when returned, and does not exempt a UOCAVA voter from the provisions of federal and state law requiring verification, using the DL or SSN. Those are two separate sections of the law.
The procedures for registering and voting under UOCAVA apply to ‘an otherwise eligible voter’ … which means that in order for the UOCAVA procedures to be in effect, there must first be a voter eligible under state law to vote in the state. UOCAVA states:
52 U.S. Code § 20302 - State responsibilities
(a) In general Each State shall—
(1)
permit absent uniformed services voters and overseas voters to use absentee registration procedures and to vote by absentee ballot in general, special, primary, and runoff elections for Federal office;
(2)
accept and process, with respect to any election for Federal office, any otherwise valid voter registration application and absentee ballot application from an absent uniformed services voter or overseas voter,…” See 52 U.S.C. §20302.
The responsibility for ensuring that a UOCAVA registration is a ‘valid voter registration’ under North Carolina’s UOCAVA law rests with the NCSBE, and it is apparent from your website, guidance, and the response to my communications with legislators that you are not complying with and enforcing North Carolina’s UOCAVA law.
Under the Help America Vote Act and North Carolina law, in order to be a valid registration, an applicant must provide a DL or SSN, and the numbers must be verified.
Article 7A. Registration of Voters. § 163‑82.1. General principles of voter registration. (a) Prerequisite to Voting. – No person shall be permitted to vote who has not been registered under the provisions of this Article or registered as previously provided by law.
G.S. § 163‑82.4 (a)(11) describes the contents of the voter registration application form which includes a drivers license or social security number.
NCSBE is conflating two separate things. Registration and returning a ballot.
UOCAVA voters who vote the first time by mail are not required to include a photocopy of their ID with their ballot. That is the ONLY exemption for UOCAVA eligible voters but before that exemption applies—they must first establish identity and eligibility to determine if they are eligible for the UOCAVA privileges in the first place.
We are not asking to have the UOCAVA voters include a copy of ID with the ballot when they return it. We want NC to follow the law to determine if the voter registration application and absentee ballot application are valid which is required in order to determine IF the applicant is entitled to UOCAVA privileges.
The Election Assistance Commission guidance of minimum HAVA verification requirements says that states should,
“Make every effort to ensure that a voter registration application is not rejected as unverifiable until the State has given the individual an opportunity to correct the information at issue and attempted to validate the accuracy of the government information contained in its databases. This does not mean that States should accept or add unverified registration applications to the statewide list. Rather, it means only that election officials should make certain efforts before an application is determined to be unverifiable and finally rejected.”
U.S. ELECTION ASSISTANCE COMMISSION Voluntary Guidance on Implementation of Statewide Voter Registration Lists, July 2005, p. 10. See https://www.eac.gov/sites/default/files/eac_assets/1/1/Implementing%20Statewide%20Voter%20Registration%20Lists.pdf
In my email to legislators, I was referring to the verification of identity and eligibility to determine if the person qualifies for the UOCAVA privileges.
Further, a ‘valid registration’ under NC’s UOCAVA law requires either a past or current residence in the state of NC, either by the applicant or the applicant’s parents or legal guardian, and that the applicant has not registered previously in another state. That is from the NC statute and it is totally ignored by your office’s procedures and guidance.
Article 21A.
Uniform Military and Overseas Voters Act.
Part 1. Uniform Military and Overseas Voters Act.
§ 163-258.1. Short title.
This Article may be cited as the Uniform Military and Overseas Voters Act. (2011-182, s. 1; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)
§ 163-258.2. Definitions.
As used in this Article:
(1) "Covered voter" means any of the following:
a. A uniformed-service voter or an overseas voter who is registered to vote in this State.
b. A uniformed-service voter defined in subdivision (7) of this section whose voting residence is in this State and who otherwise satisfies this State's voter eligibility requirements.
c. An overseas voter who, before leaving the United States, was last eligible to vote in this State and, except for a State residency requirement, otherwise satisfies this State's voter eligibility requirements.
d. An overseas voter who, before leaving the United States, would have been last eligible to vote in this State had the voter then been of voting age and, except for a State residency requirement, otherwise satisfies this State's voter eligibility requirements.
e. An overseas voter who was born outside the United States, is not described in sub-subdivision c. or d. of this subdivision, and, except for a State residency requirement, otherwise satisfies this State's voter eligibility requirements, if:
1. The last place where a parent or legal guardian of the voter was, or under this Article would have been, eligible to vote before leaving the United States is within this State; and
2. The voter has not previously registered to vote in any other state.
The NCSBE is charged with responsibility for implementing the federal and state UOCAVA procedures, including the verification of eligibility to invoke the UOCAVA procedures.
§ 163-258.4. Role of State Board of Elections.
(e) The State Board of Elections shall prescribe the form and content of a declaration for use by a covered voter to swear or affirm specific representations pertaining to the voter's identity, eligibility to vote, status as a covered voter, and timely and proper completion of an overseas-military ballot. The declaration shall be based on the declaration prescribed to accompany a federal write-in absentee ballot under the Uniformed and Overseas Citizens Absentee Voting Act, section 103, 42 U.S.C. § 1973ff-2, as modified to be consistent with this Article. The State Board of Elections shall ensure that a form for the execution of the declaration, including an indication of the date of execution of the declaration, is a prominent part of all balloting materials for which the declaration is required. (2011-182, s. 1; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)
The NCSBE through its guidance and procedures utterly disregards the verification of identity required under HAVA and NC law for voter registration.
Additionally, there is nothing in the form, procedures or guidance from the NCSBE that even touches on the requirements of the NC UOCAVA statute that a ‘covered person’ for purposes of registering and voting under UOCAVA in North Carolina must either be a registered voter in NC, a formerly registered voter in North Carolina, formerly eligible to vote in North Carolina but for age, or that North Carolina is the last place where a parent or legal guardian of the voter was, or under this Article would have been, eligible to vote before leaving the United States is within this State; and the voter has not previously registered to vote in any other state. That is the statutory requirement for attachment to North Carolina, as described in North Carolina law.
But there is NOTHING in the NCSBE’s registration form, the procedures of the NCSBE, the guidance to the counties regarding UOCAVA registration that applications for a UOCAVA registration must meet the basic requirements for voter registration under both state and federal law, PLUS must include a statement or evidence that the applicant is eligible under the statutory qualifications. Clearly, the NC law requires a prior relationship by the applicant with the state of North Carolina, either as a prior registered voter, a person who was eligible but wasn’t old enough to register or that the parents or legal guardian was registered to vote in North Carolina, and that the applicant has not registered to vote in another state -- together with a verification of any kind that both statements are true!
So while you are attacking me for ‘misinformation’, my question to you, Ms. Brinson-Bell, is why are you ignoring and not following the law insofar as UOCAVA registration is concerned? (my bold)
“I believe this is a concerted effort to turn Henderson County blue. However, I believe that if you check with other counties, you will see that the numbers have grown substantially in every county. I have heard numbers as high as 300,000 statewide so far. I believe that there is a statewide effort under way to undermine the election.”
KBB: Again, we caution you about statements favoring or opposing particular outcomes in the elections you oversee.
Linda: May I remind you that I am the appointee of the Republican Party of Henderson County on the county board of elections. There is no prohibition in the statute about my making statements privately or in conversations with elected officials about a ‘particular outcome’ as long as I am not supporting or opposing a clearly identified candidate in a statement intended for public dissemination. Do not threaten me with inaccurate statements that are not grounded in the law.
KBB: We spoke with the Henderson County director, and she confirmed on August 23 that Henderson had received fewer than 150 UOCAVA requests. In 2020, according to State Board data, Henderson County received 347 requests for absentee ballots from military and Henderson County voters living abroad at the time. So, the number of requests is not necessarily high in 2024 as you suggest. Ballots go out in two weeks.
It is also possible that advocacy groups and others are encouraging military and overseas voters who are U.S. citizens to request their ballots. There is nothing wrong with that and, in fact, that is activity protected by the First Amendment of the U.S. Constitution.
Until ballot styles are finalized, we do not know how many UOCAVA requests have come in statewide. However, the State Board has no evidence of a “statewide effort underway to undermine the election.” If you have actual evidence of such, please provide it to the State Board or to the law enforcement agency of your choice. Otherwise, your statements are sensationalistic and inflammatory and will undermine voter confidence with no facts to back them up.
Linda: My comments are certainly not more harmful to voter confidence that the procedures of the NCSBE that are contrary to state and federal law. Failure to follow the law in the election process inflicts the greatest harm to the confidence of voters in our elections.
Linda: “Additionally, Henderson County has received numerous new voter applications that do not have HAVA required information to register (missing Driver's License and/or last 4 of SS or those numbers were not validated). The State BOE has instructed Counties to go ahead a register them without verification.”
KBB: This is false. The State Board, both in emails and in a statewide Huddle training session, have instructed county boards as follows:
· If a new voter does not provide their driver’s license number or last four digits of their Social Security number and does not check the box to indicate that they do not have either of these numbers, then the voter will not be registered and will be sent an incomplete letter seeking the missing information.
· If an applicant provides a driver’s license number or last four of their Social Security number but that number does not validate, then their registration should be processed but they must be sent a “request for identification letter.” If the voter subsequently provides the ID information, their profile is updated. If they do not, they must provide an alternative ID proving their identity (so-called “HAVA ID”) before voting, or vote provisionally. See GS 163-166.12(c). See the Request for Identification Information letter.
· If a new voter checks the box to indicate they do not have either identification number, then they will be sent a “request for identification” letter and be required to show a HAVA ID before they vote.
Linda: “There have been over 10,000 voters registered state-wide in the last 3 months with unverified or no Dr License or last 4 of SS numbers and therefore HAVE NOT BEEN VERIFIED. So even though the information provided does not match (validated) the application is automatically approved. This is just common sense-the identity of the voter should be verified before entering them on the voter rolls. This is an open invitation for missing or unvalidated applications to be approved and entered into the system.”
See the note above about the additional verification requirement for voters whose ID numbers fail to validate.
Linda: Here’s some additional important context. When a number does not match, SEIMS will not populate that field, so if we run a query in the database to see which registrations lack these identifiers, the query shows registrations where an identifier was provided but the number did not validate. To attempt to validate DLs or last-four SSNs, the SEIMS system sends a database query to DMV databases and the Social Security Administration databases, asking those databases to attempt to match specific information in records on both sides. It is not uncommon for a person’s ID to fail validation. There are a number of benign reasons this can occur, and occur regularly, which has been well documented. The DMV/SSA requires exact field matching on name, DOB, DL/SSN so there is no current way to identify possible matches. Common reasons for validation failure are: misspelling of names, variation of names (Bob vs. Robert, maiden name vs. married name, varied designation of surnames for minority ethnicities, etc.), nickname or a missing suffix missing (Jr. or Sr.), inadvertent typos like missed numbers or transposed numbers in DL or last-four SSN, typos in birthdates, and situations where a registrant listed month/day/year in the wrong order on their registration form (there could be national origin-based reasons for this). Recognizing the faults in matching between distinct databases, the General Assembly enacted the provisions in GS 163-166.12(c) which allow a registrant whose DL or SSN did not match to provide HAVA ID either before or when first voting.
The NCSBE has been sued by the North Carolina Republican Party for the very reason that the above referenced statements are inaccurate and for the failure of hundreds of thousands of registrants on North Carolina’s voter rolls to comply with the HAVA verification requirements.
Linda: “Another concern is preventing non-citizens from voting. Putting the matter on the ballot in November is too little, too late. The legislature passed SB 747 requiring clerks of superior court to provide lists of people who have been excused from jury duty indicating that they are not US citizens. However, according to the SBOE this will not take place until after the November election.”
KBB: This is false. The superior court clerks are (and have) provided such lists, and State Board staff is reviewing those and contacting any registered voters who are identified and for whom a state and federal database check does not show they have obtained citizenship. After nearly every county clerk submitted any records of jurors excused for non-citizenship, there were 9 registrants total identified through these checks statewide. While it is true that federal law (NVRA) prevents us from outright removing these records this close to a federal election, we are nonetheless going to encourage any of these identified registrants to cancel their registration if they indeed lack citizenship. After the federal election, we can resume this program and conduct removals similar to how we process felon removals, rather than the notices and invitation to cancel registration which is as much as we can do and still comply with federal law.
Linda: Again, your statements are incorrect and inaccurate, and your policies and procedures have given rise to a second lawsuit against the NCSBE for failing to ensure that only US citizens are registered to vote in North Carolina. https://www.carolinajournal.com/ncsbe-faces-second-lawsuit-from-republicans-over-alleged-hava-violations/
Linda: Both the Constitution and the statutes of North Carolina restrict eligibility to vote to citizens of the United States, but the NCSBE has taken no steps to implement the citizenship requirement. In fact, on June 28, 2024, three days before the July 1, 2024 effective date for the new statute strengthening the requirements for the courts to notify your office of persons excused from jury duty based on noncitizenship status, your general counsel sent a letter to the clerk of the courts directing the clerk to STOP sending such information ostensibly because of the NVRA’s ‘blackout’ period for general list maintenance. First, removal of specific invalid registrations due to noncitizenship is not a ‘general list maintenance’ activity and is not subject to the blackout period. Further, your request was sent more than a month prior to the commencement of the blackout period, and was clearly meant to avoid compliance with the law.
Does that sort of action undermine voter confidence in the elections?
Linda: “You have allowed the SBOE to drag its feet (I believe on purpose) on all of these matters. This must be rectified if you want to win in November. I am not asking for anything that would be unfair to anyone, I just want the laws enforced to make it fair for everyone. Frankly, the county BOEs are nothing more than a rubber stamp and we have to sit there and vote to certify without any real ability to legally object. Again, the success or failure of this election in November is on you. I implore you to either fix this legislatively or in Court.
Best wishes in November, you will need it!”
KBB: Again, we remind you of the prohibitions in the law on political activity by county board members.
We again invite you to contact us in the future to clear up your misunderstandings about election processes and the law.
Linda: I did not violate any provision of state law through my communications with legislators of my party, that were not published or intended for public dissemination, and which did not support or oppose any clearly identified candidate for office. My understandings of the law and the procedures issued by your office are correct; it is your office’s failure to comply with the law that triggered my communications with the elected officials. It would be very helpful if you and your staff would study the law and make certain that your procedures and guidance are consistent with and not contrary to the statutes.
Comments