Rulemaking

Overview

Under Powers and duties of State Board of Elections. N.C.G.S. § 163-22, the State Board of Elections has general supervision over the primaries and elections in North Carolina. It also may make rules regarding elections and campaign finance provided they do not contradict the law. When rules are proposed, a public comment period and a public hearing about the rule takes place.

The Rules Review Commission reviews rules that the State Board adopts for compliance with the requirements in Chapter 150B. For more about the Rules Review Commission, including a list of date of their upcoming meetings, visit NC Office of Administrative Hearings.

Two ways to be added to the list of interested parties for rule-making conducted by the State Board of Elections:

  1. Email: legal@ncsbe.gov
  2. Mail: PO Box 27255 Raleigh NC 27611-7255

Proposed Temporary Election Observer Rules

The State Board of Elections proposes three temporary rules: two governing challenges and appeals regarding political party-appointed election observers, and one addressing the requirement for observers to wear identification at the polls, so voters and election officials know the role of observers.

Section 7(b) of Session Law 2023-140 (Senate Bill 747), which becomes effective January 1, 2024, rewrites existing law governing election observers. This new law requires the State Board to issue rules to address the following items: how to handle challenges to the appointment of observers brought by those who are authorized in statute to issue such challenges, how to handle appeals of those challenge decisions, how to handle appeals from a chief judge’s decision to remove an observer from service, and whether to require observers to wear identification badges so that voters and poll workers can identify them and their purpose at the polls. The three proposed rules would address these items. 

This rulemaking must be done as “temporary rulemaking,” because there is not enough time before the start of early voting in the 2024 primary—February 15—to complete the permanent rulemaking process.

Text of the proposed rules are available at the three links below:

  1. Challenge to the Appointment of an Observer (08 NCAC 20 .0101)(PDF) describes the process for county boards of elections to hear challenges to an observer for good cause, and for appeals of those challenge decisions.
  2. Appeal of Removal of an Observer from a Voting Site (08 NCAC 20 .0102)(PDF) describes the process for the party that appointed an observer to appeal the removal of an observer from a voting site.
  3. Identification of Observers (08 NCAC 20 .0103)(PDF) requires every observer serving at a voting site to wear an identification tag to inform voters and election officials of the observers’ role in the voting place.

Comment on the Proposed Temporary Election Observer Rules

Members of the public may comment on the rules in any of the following ways from Nov. 29, 2023, through Dec. 20, 2023.

Proposed Permanent Photo ID Rules

The State Board of Elections proposes two permanent rules to implement the photo ID requirement for in-person and absentee-by-mail voters in North Carolina. These rules are necessary to ensure uniform implementation of the photo ID requirement by all 100 county boards of elections and in all 3,000-plus polling locations.

To avoid any misunderstanding about what rules should be followed by election officials and the public, the Board also proposes to repeal previous photo ID rules adopted under a different law that is now obsolete.

Text of the proposed rules are available at the two links below:

  1. Verification of Photo Identification During In-Person Voting 08 NCAC 17 .0101 (PDF) describes how election officials must determine whether the photograph on the ID reasonably resembles the voter and whether the name is the same as or substantially equivalent to the voter’s name in their registration record. It also addresses voting options for voters who are unable to present photo identification.
  2. Photo Identification for Absentee-By-Mail Ballots 08 NCAC 17 .0109 (PDF) provides details about the requirement for absentee-by-mail voters to provide a copy of an acceptable photo ID with their ballot return envelope or complete a photo ID exception form. It also describes the process county boards of elections must take in reviewing copies of IDs or exception forms returned with absentee ballots.

The State Board also proposes the temporary repeal of four existing rules: View the text of the four rules proposed for temporary repeal (PDF).

Comment on the Proposed Permanent Photo ID Rules

Members of the public may comment on the rules in any of the following ways from Nov. 15, 2023, through Jan. 16, 2024.

An in-person public hearing on the proposed rules will be held at 11 a.m. Dec. 13, 2023, in the State Board of Elections Office, Third Floor, Dobbs Building, 430 N. Salisbury St., Raleigh, NC 27603.

Proposed Rules for Approval of Electronic Poll Books

The State Board proposes two rules that will establish the standards and procedures for an electronic poll book certification program in North Carolina. An electronic poll book is a system used to check the registration of voters who appear to vote in person, to assign voters their correct ballots, and to record the voters’ check-in and acceptance of ballots. Pursuant to Voting systems: powers and duties of State Board. N.C.G.S. § 163-165.7(c), the only electronic poll books permitted for use in elections in North Carolina, other than those which have been developed or maintained by the State Board, are those which have been certified by the State Board in accordance with procedures and subject to standards adopted by the State Board.

The first proposed rule, 08 NCAC 04 .0401, contains the standards that must be met by the electronic poll book and vendor to qualify for certification and to maintain the electronic poll book’s certified status.

Rule Text: Standards for Certification of Electronic Poll Books 08 NCAC 04 .0401 (PDF)

The second proposed rule, 08 NCAC 04 .0402, contains the procedures that must be followed by the State Board when certifying an electronic poll book and when reviewing changes to, decertifying, or temporarily suspending the use of a certified electronic poll book.

Rule Text: Procedures for Certification of Electronic Poll Books 08 NCAC 04 .0402 (PDF)

Comment on the Proposed Electronic Poll Book Rules

The State Board accepted written comments on the proposed rules from Sept. 15 through Nov. 14, 2023, and held a virtual public hearing to receive oral comments on Oct. 2, 2023. The State Board will review and consider all public comments received in connection with the proposed rules prior to adopting the rules at a public meeting.

Proposed Rule for Review of Voting System Proprietary Information

The State Board of Elections proposes an administrative rule about the process by which a person, authorized by Voting systems: powers and duties of State Board. N.C.G.S. § 163-165.7, may access, review, and examine information that voting system vendors place in escrow as part of the state certification of their voting systems. This escrowed information includes proprietary and highly sensitive information of voting systems, including the source code for voting machines and election management systems and their software.

The proposed rule is designed to ensure that authorized individuals may review this information without risking the disclosure of proprietary or competitive information belonging to voting system vendors or the disclosure of features of voting systems that could be exploited by malicious actors.

The U.S. Department of Homeland Security has designated elections infrastructure, including voting systems, as critical national infrastructure. Because North Carolina is one of many states that use the same or similar voting systems, the access that the state provides through this process has implications for the security and integrity of elections nationwide.

Rule Text: Authorized Access to Voting System Information in Escrow 08 NCAC 04 .0308 (PDF).

Comment on the Proposed Voting System Information Rule

The State Board accepted written comments on the proposed rule from July 3 through Sept. 1, 2023, and held a virtual public hearing to receive oral comments on July 20, 2023. The State Board will review and consider all public comments received in connection with the proposed rule prior to adopting the rule at a public meeting.

Procedure for Subjecting a Proposed Rule to Legislative Review

If an objection is not resolved prior to the adoption of the rule, a person may also submit written objections to the Rules Review Commission after the adoption of the Rule. If the Rules Review Commission receives written and signed objections after the adoption of the Rule in accordance with Effective date of rules. N.C.G.S. § 150B-21.3(b2) from 10 or more persons clearly requesting review by the legislature and the Rules Review Commission approves the rule, the rule will become effective as provided in Effective date of rules. N.C.G.S. § 150B-21.3(b1). The Commission will receive written objections until 5 p.m. on the day following the day the Commission approves the rule. The Commission will receive those objections by mail, delivery service, hand delivery, or facsimile transmission. If you have any further questions concerning the submission of objections to the Commission, please call a Commission staff attorney at (984) 236-1850.