1. Observers 2014 August 2014 SBE Training Don Wright, General Counsel

2. Who Can be an Observer? An Observer: must be a registered voter of the county must be of good moral character cannot be a candidate on the ballot of the election under observation. may be a political party official. There is a difference between a monitor and observer. Monitors are appointed by court order, government action or by treaty.

3. GS 163-45 N.C.G.S. 163-45 sets forth allowable activities for observers: An observer shall do no electioneering at the voting place. An observer shall in no manner impede the voting process. An observer shall in no manner interfere or communicate with or observe any voter in casting a ballot. The chief judge or judges shall permit observer to make observations and take notes, including collecting lists of voters who have cast ballots. Basically an observer shall OBSERVE AND NOTE!

4. 8 NCAC 10B.0103 Political parties may collect the lists of voters by using a runner. Runners may pick up the lists at 10:00 am, 2:00 pm and 4:00 pm (8 NCAC 10B.0103) Runners are not allowed to remain inside the voting enclosure to prepare a list or to remain after the list has been collected. An observer is NOT a “precinct official.” 8NCAC 10B.0101(a) They take no oath of office ( GS 163-45).

5. The Reality of Having Observers Exactly how many observers are actually appointed by the respective political parties prior to primaries? Prior to general elections? Appointment is by 10 am on the 5 th day prior to the day the person is to observe. (It may be helpful to remind the political parties several times before this date.) Which is better -- a party filling its precinct officials quota or having observers?

6. Where are Observers Allowed? Partisan Elections and Primaries, even partisan municipal elections/primaries. ABC Referendums. GS 18B-601(i) Unaffiliated candidates on the ballot have the right to appoint two observers for each precinct.

7. Newly Amended GS 163-45(b) Creating At-Large Observers (b) Individuals authorized to appoint observers must submit in writing to the chief judge of each precinct a signed list of the observers appointed for that precinct, except that the list of at- large observers authorized in subsection (a) of this section shall be submitted to the county director of elections. Individuals authorized to appoint observers must, prior to 10:00 A.M. on the fifth day prior to any primary or general election, submit in writing to the chair of the county board of elections two signed copies of a list of observers appointed by them, designating the precinct or at-large status for which each observer is appointed. Before the opening of the voting place on the day of a primary or general election, the chair shall deliver one copy of the list to the chief judge for each affected precinct, except that the list of at-large observers shall be provided by the county director of elections to the chief judge. The chair shall retain the other copy. The chair, or the chief judge and judges for each affected precinct, may for good cause reject any appointee and require that another be appointed. The names of any persons appointed in place of those persons rejected shall be furnished in writing to the chief judge of each affected precinct no later than the time for opening the voting place on the day of any primary or general election, either by the chair of the county board of elections or the person making the substitute appointment. If party chairs appoint observers at one-stop sites under G.S. 163-227.2, those party chairs shall provide a list of the observers appointed before 10:00 A.M. on the fifth day before the observer is to observe. At-large observers may serve at any one-stop site.

8. Is an at-large Observer subject to a minimum 4 hour shift? No. The provision in GS 163-45(a) that covers at-large observers was added after the statutory language as to the 4 hour minimum. (a) The chair of each political party in the county shall have the right to designate two observers to attend each voting place at each primary and election and such observers may, at the option of the designating party chair, be relieved during the day of the primary or election after serving no less than four hours and provided the list required by this section to be filed by each chair contains the names of all persons authorized to represent such chair's political party. The chair of each political party in the county shall have the right to designate 10 additional at- large observers who are residents of that county who may attend any voting place in that county. The list submitted by the chair of the political party may be amended between the one-stop period under G.S. 163-227.2 and general election day to substitute one or all at-large observers for election day. Not more than two observers from the same political party shall be permitted in the voting enclosure at any time, except that in addition one of the at-large observers from each party may also be in the voting enclosure. This right shall not extend to the chair of a political party during a primary unless that party is participating in the primary. In any election in which an unaffiliated candidate is named on the ballot, the candidate or the candidate's campaign manager shall have the right to appoint two observers for each voting place consistent with the provisions specified herein. Persons appointed as observers must be registered voters of the county for which appointed and must have good moral character. No person who is a candidate on the ballot in a primary or election may serve as an observer or runner in that primary or election. Observers shall take no oath of office.

9. How many at-large observers in a precinct are allowed at one time? Only ONE additional at-large observer is allowed in a precinct at one time. (a) The chair of each political party in the county shall have the right to designate two observers to attend each voting place at each primary and election and such observers may, at the option of the designating party chair, be relieved during the day of the primary or election after serving no less than four hours and provided the list required by this section to be filed by each chair contains the names of all persons authorized to represent such chair's political party. The chair of each political party in the county shall have the right to designate 10 additional at-large observers who are residents of that county who may attend any voting place in that county. The list submitted by the chair of the political party may be amended between the one-stop period under G.S. 163-227.2 and general election day to substitute one or all at-large observers for election day. Not more than two observers from the same political party shall be permitted in the voting enclosure at any time, except that in addition one of the at-large observers from each party may also be in the voting enclosure.

10. USE OF WIRELESS DEVICES FOR DATA TRANSMISSION BY OBSERVERS Use of all handheld electronic devices (cell phones, smart phones and PDAs) FOR LIVE DATA TRANSMISSION and other use (except for allowed phone calls) is prohibited while inside the voting enclosure. Use of these items by observers for making and receiving needed personal phone calls may occur, in a nonintrusive manner, in an area outside the voting enclosure designated by the chief judge. Continuous, frequent talking, personal phone calls or other communication may be considered disruptive. The chief judge shall have the authority to remove an observer from the premises for violating this prohibition.

11. USE OF COMPUTERS BY OBSERVERS When the observer wants to report to his or her respective political party, he or she may create a physical copy of the maintained voter list and deliver it to a runner as set forth in NCGS 163-45. Runners are not allowed to remain inside the voting enclosure to create a list. Runners are not allowed to remain inside the voting enclosure once the list and data have been collected. When the observer seeks to report to his or her respective political party, and no runner has been approved, he or she may leave the voting enclosure (but not the voting place) to transmit data unless the chief judge determines otherwise. A physical copy may be a printed copy or an electronic copy on a physical storage device such as a CD-ROM or a flash drive. When using a computer to take notes, turn off any video or camera feature of the device.

12. Cell Phones Use GS 163-166.3(c) No person shall photograph, videotape, or otherwise record the image of a voted official ballot for any purpose not otherwise permitted by law The most common cameras in use today are those found in cell phones. A voter using a cell phone to photograph a ballot still remains unlawful. This applies to observers. GS 163-273(a)(7) The use of cell phones by a voter as a means of getting help to mark his or her ballot is a class 2 misdemeanor. Violators are subject to arrest. 8 NCAC 10B.0107(a)(1) prohibits assistance other than in person. This would include cell phones or other electronic devices. 8 NCAC 10B.0107(f) creates a presumption of unlawful assistance when the voter operates a communication device while in the voting booth. Recent technology advances have made continuous use of electronic devices more routine. Nonetheless, county boards of election must stand firm in enforcing the current laws and regulations that address this issue.

13. Use of Cellphones Behavior that the cell phone rule prohibits is still a concern. The SBE recently received the following e-mail from a county director describing a direct violation of GS 163-166.3(c): “This email is to report that several voters were seen taking a picture with a phone of their voted ballot. I personally witnessed a voter take a picture with his phone. I approached him to let him know that is was prohibited and asked why voters were taking pictures as we have never had an issue like this before. He stated ‘Simply to show the candidate that we supported him in this election.’ My staff have been instructed to report to me immediately if this occurs again.”

14. QUESTIONS TO CLARIFY WHAT OBSERVERS CAN AND CANNOT DO Early voting staff arrives early at each site for a staff meeting, sets up the room, plugs in the M-100, unlocks and sets up the secure supplies, unlocks ballot supply cabinet, connects and logs on the laptops, turns on the printers and reviews procedures and responsibilities. It is our understanding that an observer is not allowed to enter the early voting facility until the early voting site is open for voting. Is that correct? Agree When the site is open for voting, the observer may write down the number on the public counter to verify that the number is the same as at close of site the previous night. Agree On Election Day, what is the earliest time the observer may enter the polling place? Our officials arrive at 6:00 that morning to set up the precinct in order to open the polls at 6:30 am. Agree

15. QUESTIONS TO CLARIFY WHAT OBSERVERS CAN AND CANNOT DO Observers may not stand behind the registration table because the laptop has the voter’s confidential information. Sometimes observers complain that they can’t hear the information and want to get closer. How best to handle? Ask poll workers to speak loudly and have observers who have reasonable hearing ability. In early voting sites, the voting booths are set up in rows with an aisle between the booths. Does the observer have the right to walk in the aisle between the booths where voters are making his/her ballot? Not if doing so allows the observer the chance to see how a voter marks the ballot. What may observers do at the ballot table at early voting locations? Observe the ballots being distributed and the bar scanner working to ensure the correct ballot. Are runners allowed to remain in the polling place or early voting site to prepare a list of who has voted? No, they are there only to pick up information.

16. QUESTIONS TO CLARIFY WHAT OBSERVERS CAN AND CANNOT DO Are runners allowed to remain in the polling place or early voting site to prepare a list of who has voted? No, they are there only to pick up information. When the curbside voting area is located outside the 50 –foot-no- campaigning buffer zone, may observers approach the voter's car while the workers are assisting the voter? They may not stand so close as to observe how the voter votes. When a bus or van arrives containing curbside voters and the workers enter the vehicle to assist the voters, may observers also enter the vehicle and observe the process of the voter voting the ballot? They may not stand so close as to observe how the voter votes.

17. Observing Curbside Voting The curbside voter has the same rights to assistance as do all other voters. The curbside voter has the same right to mark the ballot unobserved as a voter entering the voting enclosure. The curbside voter’s vehicle is his or her voting enclosure. Photographing or taking video of a curbside voter is prohibited.