February 27, 2018 The Joint Legislative Elections
Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0755 Fax: (919) 715-0135
February 27, 2018 The Joint Legislative Elections Oversight Committee c/o Representative David R. Lewis, Co-Chair Senator Ralph Hise, Co-Chair Dear Co-Chairs: Much has transpired since the Department of Homeland Security designated the elections sector as critical infrastructure in January 2017. We, along with the nation, have gained a disturbing but more accurate understanding of the threats confronting systems that administer elections. It became clearer too that North Carolina is at the forefront of this national challenge, coordinating often with Homeland Security and other federal intelligence partners to secure our elections against foreign threats. Vulnerabilities are not all external, however, and our agency’s investigation into two cases of criminal misconduct by elections officials in different counties (each has pleaded guilty) have highlighted the need for stronger internal safeguards. In 2016, we implemented integrity audits that have strengthened the accuracy and integrity of the elections, both by detecting criminal violations and by ensuring that every ballot cast by a qualified voter is counted by the county board. Last spring, our agency’s Post-Election Audit Report documented many of our auditing processes. Meanwhile, the State Board unanimously adopted an Elections System Certification Program that aims to ensure only the most secure voting equipment is allowed to operate in North Carolina. These and other efforts exemplify our agency’s commitment to earning the confidence of the public by fortifying the integrity of our process. North Carolina is on the right track, but the Committee’s involvement is needed to meet the evolving challenges of election security. While our agency has always sought to keep budget requests to a minimum, I stated to the Committee in January that our agency respectfully requests the addition of a Chief Information Security Officer, whose cybersecurity expertise would enhance our team’s ability to implement Homeland Security recommendations and develop a more robust security protocol. Additionally, county boards of elections face the specter of replacing aging voting equipment without assistance of the type proposed last year in House Bill 655. Lastly, a decade of technological change has outpaced the security and efficiency of our Statewide Elections Information Management System (SEIMS), the network that manages all registration and elections in our state. Modernizing SEIMS has been a major endeavor in recent years, but security concerns highlighted during the 2016 cycle have required extensive reevaluation and new system requirements. Without financial assistance, our agency will be unable to implement important changes before the 2020 General Election. Separate from the above requests, the civil staff of the State Board have prepared recommended statutory revisions that will help the agency and the county boards address security challenges that have surfaced since 2016. As ever, we appreciate your consideration, and I am available to answer any questions.
Sincerely,
Kim Westbrook Strach Executive Director Encl.: Recommended Statutory Revisions
02.27.2018
In addition to the financial submitted to the Joint Legislative Elections Oversight Committee, the civil staff of the State Board of Elections & Ethics Enforcement recommends that the Committee consider statutory revisions in the following areas: (1) Non-Networked Voting Systems; (2) Electronic Poll Books; (3) Secure Balloting; (4) Efficient Information-Sharing; (5) Personally Identifiable Information; (6) Emergency Continuity of Operations; (7) Background Checks. ___________________
Voting systems, including tabulators, should not connect to any network during operation. Nearly all North Carolina counties already adhere to this important security standard. [§ 163A-1115] (j)
No voting system component used in any election in this State shall be connected to a network, and any feature allowing connection to a network shall be disabled. Prohibited network connections include the Internet, intranet, fax, telephone line, networks established via modem, or any other wired or wireless connection. The State Board shall adopt technical standards for the enforcement of this Section.
[§ 163A-1115(a)] (5)
With respect to DRE voting systems, that the entire paper record ballot generated by the system be viewable byphysically provided to the voter, and that the voter be given the opportunity to view the paper ballot and correct any errors before the vote is cast electronically, and that the system permit the voter to correct any discrepancy between the electronic vote and the paper record before the vote is cast. [Subject to the same Note appearing at S.L. 2016-109, § 9.(b)]
Voter check-in software (so-called “electronic poll books”) perform sensitive election tasks. System failures can throw a precinct into disarray and pose substantial security risk. North Carolina should strengthen electronic poll book requirements and empower the State Board to better secure against failure. [§ 163A-1115] (c)
Only electronic poll books or ballot duplication systems that have been certified by the State Board in accordance with procedures and subject to standards adopted by the State Board, or which have been developed or maintained by the State Board, shall be permitted for use in elections in this State. Among other requirements as set by the State Board, the certification requirements shall require 1
02.27.2018 at least that a vendor meet the elements set out in subdivisions (1), (6), (7) and (8) of subsection (a) of this section. ... (h)
Neither certification of electronic poll books nor of voting systems under this section shall constitute a license under Chapter 150B of the General Statutes.
(i)
The State Board in writing may decertify or otherwise halt the use of electronic poll books in North Carolina. Any such action is appealable only to the Superior Court of Wake County.
[§ 150B-45] (c)
Judicial Review for State Board of Elections and Ethics Enforcement. – For a stay entered pursuant to G.S. 150B-33(b)(6), the State Board of Elections and Ethics Enforcement may obtain judicial review of the temporary restraining order or preliminary injunction in the superior court of the county designated in subsection (a) of this section.
North Carolina will transition fully to paper balloting by December 2019. Until then, it remains important for counties using direct record electronic (DRE) machines to ensure the statutory sample hand-to-eye audit continues in a manner that meaningfully audits equipment. Additionally, greater risks posed by so-called “spear phishing” campaigns require new measures to defend against the introduction of malware through emails posing as ballots from overseas voters. [§ 163A-1166(b)] (1)
Provide for a sample hand-to-eye count of the paper ballots, or of the voterverified paper record produced by a direct record electronic (DRE) machine, of a statewide ballot item in every county. The presidential ballot item shall be the subject of the sampling in a presidential election. If there is no statewide ballot item, the State Board shall provide a process for selecting district or local ballot items to adequately sample the electorate. The State Board shall approve in an open meeting the procedure for randomly selecting the sample precincts for each election. The random selection of precincts for any county shall be done publicly after the initial count of election returns for that county is publicly released or 24 hours after the polls close on election day, whichever is earlier. The sample chosen by the State Board shall be of one or more full precincts, full counts of mailed absentee ballots, full counts of one or more one-stop early voting sites, or a combination. The size of the sample of each category shall be chosen to produce a statistically significant result and shall be chosen after consultation with a statistician. The actual units shall be chosen at random. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count, the hand-to-eye count shall control, except where paper ballots or voter-verified paper record have been lost or destroyed or where there is another reasonable basis to conclude that the 2
02.27.2018 hand-to-eye count is not the true count. If such a reasonable basis is not found and the discrepancy between the hand-to-eye count and the mechanical or electronic count is significant, a complete hand-to-eye count shall be conducted. [§163A-1338] (c)
The State Board shall establish an electronic transmission system through which covered voters may apply for and receive voter registration materials, militaryoverseas ballots, and other information under this Part. The system shall be secured with the assistance of the Department of Information Technology if requested by the State Board.
County boards oversee local employees and maintain critical information that affects election security and investigations. The State must be able to readily obtain information, records, and equipment necessary to appropriately investigate elections matters. [§ 163A-741] (j1)
Notwithstanding G.S. 153A-98 or any other provision of law, all officers, employees, and agents of a county board of elections are required to give to the State Board, upon request, all information, documents, and data within their possession, or ascertainable from their records, including any internal investigation or personnel documentation; and are required to make available, upon request pursuant to an investigation under subsection (d) of this section, any county board employee for interview and to produce any equipment, hardware, or software for inspection. These requirements are mandatory and shall be timely complied with as specified in the request made by any two members of the State Board.
[153A-98] (c5)
Notwithstanding the requirements of this section, information shall be provided to the State Board of Elections and Ethics Enforcement from employee personnel records as provided in G.S. 163A-741.
Voter registration data includes Social Security numbers, dates of birth, and driver license numbers. Citizens must be allowed to exercise the franchise without compromising their personal data security. Registration forms should not be copied by voter drive volunteers, and new protections should be available to vulnerable populations. [§163A-1388(a)] Class 2 Misdemeanors.--Any person who shall, in connection with any primary or election in this State, do any of the acts and things declared in this subsection to be unlawful, shall be guilty of a Class 2 misdemeanor. It shall be unlawful: ... 3
(15)
02.27.2018 For any person who is not an elections official or who is not otherwise authorized by law to duplicate any form described in G.S. 163A-862 or to otherwise record from that form a registrant's signature, full or partial social security number, date of birth, the identity of the public agency at which the registrant registered under G.S. 163A-884, any electronic mail address submitted under Part 2 of Article 17 of this Chapter, or driver license number.
[§ 15C-2] The following definitions apply in this Chapter: ... (2) Address Confidentiality Program or Program. - A program in the Office of the Attorney General to protect the confidentiality of the address of qualifying individuals to prevent identification a relocated victim of domestic violence, sexual offense, or stalking to prevent the victim's assailants or potential assailants from finding the victim through public records. [§ 15C-3] The General Assembly establishes the Address Confidentiality Program in the Office of the Attorney General to protect the confidentiality of the address of a relocated victim of domestic violence, sexual offense, stalking, or human trafficking, or those in witness protection programs, engaged in law enforcement or judicial service, or whose public activities place at risk either their personal security or that of their family members to prevent the victim's assailants or potential assailants from finding the victim through public records. Under this Program, the Attorney General shall designate a substitute address for a program participant and act as the agent of the program participant for purposes of service of process and receiving and forwarding first-class mail or certified or registered mail. The Attorney General shall not be required to forward any mail other than first-class mail or certified or registered mail to the program participant. The Attorney General shall not be required to track or otherwise maintain records of any mail received on behalf of a program participant unless the mail is certified or registered mail. The immediate family members of any qualifying individual may be admitted to the Program. The Office of the Attorney General shall adopt standards and procedures for the uniform administration of the Program.
The State Board should designate personnel authorized to act temporarily in an emergency during which the Executive Director is physically unable to do so. [§ 163A-750] (d)
The State Board shall designate a member of agency staff who shall temporarily exercise emergency powers of the Executive Director under this Section in the case of the Executive Director’s death, incapacity, or unavailability.
4
02.27.2018
Sensitive elections systems are accessed daily by an array of employees at the state and county levels. Measures should be authorized to screen those working within elections administration to ensure staff and vendors are not compromised or place systems at risk. [§ 143B-968] (a)
(b)
As used in this section, the term: (1) "Current or prospective employee" means any of the following: a. A current or prospective permanent or temporary employee of the State Board or a current or prospective county elections director. b. A current or prospective contractor with the State Board of Elections and Ethics Enforcement. c. An employee or agent of a current or prospective contractor with the State Board of Elections and Ethics Enforcement. d. Any other individual otherwise engaged by the State Board of Elections and Ethics Enforcement who has or will have access to elections systems or confidential elections or ethics data. (2) "State Board" means the State Board of Elections and Ethics Enforcement. The Department of Public Safety may provide to the Executive Director of the State Board a current or prospective employee's criminal history from the State and National Repositories of Criminal Histories. The Executive Director shall provide to the Department of Public Safety, along with the request, the fingerprints of the current or prospective employee, a form signed by the current or prospective employee consenting to the criminal record check and use of fingerprints and other identifying information required by the State and National Repositories, and any additional information required by the Department of Public Safety. The fingerprints of the current or prospective employee shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check.
(c)
The Department of Public Safety may charge a fee to offset the cost incurred by it to conduct a criminal record check under this section. The fee shall not exceed the actual cost of locating, editing, researching, and retrieving the information.
(d)
The criminal history report shall be provided to the Executive Director of the State Board, who shall keep all information obtained pursuant to this section confidential to the State Board. A criminal history report obtained as provided in this section is not a public record under Chapter 132 of the General Statutes.
[§ 143B-969] (a)
As used in this section, the term: (1) "Current or prospective employee" means a current or prospective permanent or temporary employee of a county board of elections. (2) "State Board" means the State Board of Elections and Ethics Enforcement. 5
(b)
02.27.2018 The Department of Public Safety may provide to the director of a county board of elections a current or prospective employee's criminal history from the State and National Repositories of Criminal Histories. The Executive Director of the State Board shall provide to the Department of Public Safety, along with the request, the fingerprints of the current or prospective employee, a form signed by the current or prospective employee consenting to the criminal record check and use of fingerprints and other identifying information required by the State and National Repositories, and any additional information required by the Department of Public Safety. The fingerprints of the current or prospective employee shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check.
(c)
The Department of Public Safety may charge a fee to offset the cost incurred by it to conduct a criminal record check under this section. The fee shall not exceed the actual cost of locating, editing, researching, and retrieving the information.
(d)
The criminal history report shall be provided to the director of the county board of elections, who shall keep all information obtained pursuant to this section confidential to the county board of elections, the State Board of Elections and Ethics Enforcement, and the Executive Director of the State Board. A criminal history report obtained as provided in this section is not a public record under Chapter 132 of the General Statutes.
[§ 163A-7] (a)
As used in this section, the term: (1) "Current or prospective employee" means any of the following: a. A current or prospective permanent or temporary employee of the State Board or a current or prospective county elections director. b. An employee or agent of a current or prospective contractor with the State Board. c. Any other individual otherwise engaged by the State Board who has or will have access to elections systems or confidential elections or ethics data. (2) "Criminal history" means a State or federal history of conviction of a crime, whether a misdemeanor or felony, that bears upon a current or prospective employee's fitness for employment in the State Board. The crimes include, but are not limited to, criminal offenses as set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7B, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 6
02.27.2018 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct ,in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots, Civil Disorders, and Emergencies; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 59, Public Intoxication; and Article 60, Computer-Related Crime. The crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol-related offenses, such as sale to underage persons in violation of G.S. 18B-302, or driving while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5. (b)
A criminal history record check shall be required of all current or prospective permanent or temporary employee of the State Board and all current or prospective county elections directors, which shall be conducted by the Department of Public Safety as provided in G.S. 143B-968. The criminal history report shall be provided to the Executive Director and may not be disclosed outside of the State Board. The criminal history report shall be kept confidential as provided in G.S. 143B-968(d) and is not a public record under Chapter 132 of the General Statutes.
(c)
If the current or prospective employee's verified criminal history record check reveals one or more convictions listed in subdivision (2) of subsection (a) of this section, the conviction shall constitute just cause for not selecting the person for employment, or for dismissing the person from current employment. The conviction shall not automatically prohibit employment; however, the following factors shall be considered, if readily ascertainable, in determining whether employment shall be denied or the employee shall be dismissed: (1) The level and seriousness of the crime. (2) The date of the crime. (3) The age of the current or prospective employee at the time of the conviction. (4) The circumstances surrounding the commission of the crime, if known. (5) The nexus between the criminal conduct of the current or prospective employee and job duties of the employee. (6) The prison, jail, probation, parole, rehabilitation, and employment records of the current or prospective employee since the date the crime was committed. (7) The current or prospective employee's candor in disclosing the circumstances surrounding the conviction. (8) The subsequent commission by the current or prospective employee of a crime listed in subdivision (2) of subsection (a) of this section. A prospective employee may be denied employment or current an employee may be dismissed who refuses to consent to a criminal history record check or to submit fingerprints or to provide other identifying information required by the State or National Repositories of Criminal Histories. Any such refusal shall constitute just cause for the employment
(d)
7
02.27.2018 denial or the dismissal from employment. (e)
A conditional offer of employment or appointment pending the results of a criminal history record check authorized by this section may be extended.
(f)
A county board of elections shall require a criminal history record check of all current or prospective permanent or temporary employees of the county board of elections who have or will have access to the statewide computerized voter registration system maintained under G.S. 163A-874 and for any additional position or function as the State Board may designate
[§ 163A-778] (a)
As used in this section, the term: (1) "Current or prospective employee" means any of the following: a. A current or prospective permanent or temporary employee of a county board of elections. (2) "Criminal history" means a State or federal history of conviction of a crime, whether a misdemeanor or felony, that bears upon a current or prospective employee's fitness for employment in the State Board. The crimes include, but are not limited to, criminal offenses as set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7B, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct ,in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots, Civil Disorders, and Emergencies; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 59, Public Intoxication; and Article 60, Computer-Related Crime. The crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol-related offenses, such as sale to underage persons in violation of G.S. 18B-302, or driving while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5.
(b)
The director of a county board of elections shall require a criminal history record check of all current or prospective permanent or temporary employees, as provided in G.S. 163A-7(e), which shall be conducted by the Department of Public Safety as provided in G.S. 143B-969. A county board of elections shall provide the criminal history record of all current or 8
02.27.2018 prospective permanent or temporary employees to the Executive Director and the State Board The criminal history report shall be kept confidential as provided in G.S. 143B-969(d) and is not a public record under Chapter 132 of the General Statutes. (c)
If the current or prospective employee's verified criminal history record check reveals one or more convictions listed in subdivision (2) of subsection (a) of this section, the conviction shall constitute just cause for not selecting the person for employment, or for dismissing the person from current employment. The conviction shall not automatically prohibit employment; however, the following factors shall be considered, if readily ascertainable, in determining whether employment shall be denied or the employee shall be dismissed: (1) The level and seriousness of the crime. (2) The date of the crime. (3) The age of the current or prospective employee at the time of the conviction. (4) The circumstances surrounding the commission of the crime, if known. (5) The nexus between the criminal conduct of the current or prospective employee and job duties of the employee. (6) The prison, jail, probation, parole, rehabilitation, and employment records of the current or prospective employee since the date the crime was committed. (7) The current or prospective employee's candor in disclosing the circumstances surrounding the conviction. (8) The subsequent commission by the current or prospective employee of a crime listed in subdivision (2) of subsection (a) of this section.
(d)
The county board of elections may deny employment to or dismiss a current or prospective employee who refuses to consent to a criminal history record check or to submit fingerprints or to provide other identifying information required by the State or National Repositories of Criminal Histories. Any such refusal shall constitute just cause for the employment denial or the dismissal from employment.
(e)
The county board of elections may extend a conditional offer of employment or appointment pending the results of a criminal history record check authorized by this section.
[§ 163A-774(b)] (b) Appointment, Duties; Termination. – Upon receipt of a nomination from the county board of elections stating that the nominee for director of elections is submitted for appointment upon majority selection by the county board of elections the Executive Director shall issue a letter of appointment of such nominee to the chairman of the county board of elections within 10 days after receipt of the nomination.nomination, unless good cause exists to decline the appointment. The Executive Director may delay the issuance of appointment for a reasonable time if necessary to obtain a criminal history records check sought under 9
02.27.2018 G.S. 143B-968. The Executive Director shall apply the standards provided in G.S. 163A-7 in determining whether a nominee with a criminal history shall be selected. If the Executive Director determines a nominee shall not be selected and does not issue a letter of appointment, the decision of the Executive Director of the State Board shall be final unless the decision is, within ten days from the official date on which it was made, deferred by the State Board. If the State Board defers the decision, then the State Board shall make a final decision on appointment of the executive director and may direct the Executive Director to issue a letter of appointment. Thereafter,If an Executive Director issues a letter of appointment, the county board of elections shall enter in its official minutes the specified duties, responsibilities and designated authority assigned to the director by the county board of elections. The specified duties and responsibilities shall include adherence to the duties delegated to the county board of elections pursuant to G.S. 163A-769. A copy of the specified duties, responsibilities and designated authority assigned to the director shall be filed with the State Board. In the event the Executive Director is recused due to an actual or apparent conflict of interest from rendering a decision under this section, the chair and vice-chair of the State Board shall designate a member of staff to fulfill those duties.
10
February 27, 2018 The Joint Legislative Elections Oversight Committee c/o Representative David R. Lewis, Co-Chair Senator Ralph Hise, Co-Chair Dear Co-Chairs: Much has transpired since the Department of Homeland Security designated the elections sector as critical infrastructure in January 2017. We, along with the nation, have gained a disturbing but more accurate understanding of the threats confronting systems that administer elections. It became clearer too that North Carolina is at the forefront of this national challenge, coordinating often with Homeland Security and other federal intelligence partners to secure our elections against foreign threats. Vulnerabilities are not all external, however, and our agency’s investigation into two cases of criminal misconduct by elections officials in different counties (each has pleaded guilty) have highlighted the need for stronger internal safeguards. In 2016, we implemented integrity audits that have strengthened the accuracy and integrity of the elections, both by detecting criminal violations and by ensuring that every ballot cast by a qualified voter is counted by the county board. Last spring, our agency’s Post-Election Audit Report documented many of our auditing processes. Meanwhile, the State Board unanimously adopted an Elections System Certification Program that aims to ensure only the most secure voting equipment is allowed to operate in North Carolina. These and other efforts exemplify our agency’s commitment to earning the confidence of the public by fortifying the integrity of our process. North Carolina is on the right track, but the Committee’s involvement is needed to meet the evolving challenges of election security. While our agency has always sought to keep budget requests to a minimum, I stated to the Committee in January that our agency respectfully requests the addition of a Chief Information Security Officer, whose cybersecurity expertise would enhance our team’s ability to implement Homeland Security recommendations and develop a more robust security protocol. Additionally, county boards of elections face the specter of replacing aging voting equipment without assistance of the type proposed last year in House Bill 655. Lastly, a decade of technological change has outpaced the security and efficiency of our Statewide Elections Information Management System (SEIMS), the network that manages all registration and elections in our state. Modernizing SEIMS has been a major endeavor in recent years, but security concerns highlighted during the 2016 cycle have required extensive reevaluation and new system requirements. Without financial assistance, our agency will be unable to implement important changes before the 2020 General Election. Separate from the above requests, the civil staff of the State Board have prepared recommended statutory revisions that will help the agency and the county boards address security challenges that have surfaced since 2016. As ever, we appreciate your consideration, and I am available to answer any questions.
Sincerely,
Kim Westbrook Strach Executive Director Encl.: Recommended Statutory Revisions
02.27.2018
In addition to the financial submitted to the Joint Legislative Elections Oversight Committee, the civil staff of the State Board of Elections & Ethics Enforcement recommends that the Committee consider statutory revisions in the following areas: (1) Non-Networked Voting Systems; (2) Electronic Poll Books; (3) Secure Balloting; (4) Efficient Information-Sharing; (5) Personally Identifiable Information; (6) Emergency Continuity of Operations; (7) Background Checks. ___________________
Voting systems, including tabulators, should not connect to any network during operation. Nearly all North Carolina counties already adhere to this important security standard. [§ 163A-1115] (j)
No voting system component used in any election in this State shall be connected to a network, and any feature allowing connection to a network shall be disabled. Prohibited network connections include the Internet, intranet, fax, telephone line, networks established via modem, or any other wired or wireless connection. The State Board shall adopt technical standards for the enforcement of this Section.
[§ 163A-1115(a)] (5)
With respect to DRE voting systems, that the entire paper record ballot generated by the system be viewable byphysically provided to the voter, and that the voter be given the opportunity to view the paper ballot and correct any errors before the vote is cast electronically, and that the system permit the voter to correct any discrepancy between the electronic vote and the paper record before the vote is cast. [Subject to the same Note appearing at S.L. 2016-109, § 9.(b)]
Voter check-in software (so-called “electronic poll books”) perform sensitive election tasks. System failures can throw a precinct into disarray and pose substantial security risk. North Carolina should strengthen electronic poll book requirements and empower the State Board to better secure against failure. [§ 163A-1115] (c)
Only electronic poll books or ballot duplication systems that have been certified by the State Board in accordance with procedures and subject to standards adopted by the State Board, or which have been developed or maintained by the State Board, shall be permitted for use in elections in this State. Among other requirements as set by the State Board, the certification requirements shall require 1
02.27.2018 at least that a vendor meet the elements set out in subdivisions (1), (6), (7) and (8) of subsection (a) of this section. ... (h)
Neither certification of electronic poll books nor of voting systems under this section shall constitute a license under Chapter 150B of the General Statutes.
(i)
The State Board in writing may decertify or otherwise halt the use of electronic poll books in North Carolina. Any such action is appealable only to the Superior Court of Wake County.
[§ 150B-45] (c)
Judicial Review for State Board of Elections and Ethics Enforcement. – For a stay entered pursuant to G.S. 150B-33(b)(6), the State Board of Elections and Ethics Enforcement may obtain judicial review of the temporary restraining order or preliminary injunction in the superior court of the county designated in subsection (a) of this section.
North Carolina will transition fully to paper balloting by December 2019. Until then, it remains important for counties using direct record electronic (DRE) machines to ensure the statutory sample hand-to-eye audit continues in a manner that meaningfully audits equipment. Additionally, greater risks posed by so-called “spear phishing” campaigns require new measures to defend against the introduction of malware through emails posing as ballots from overseas voters. [§ 163A-1166(b)] (1)
Provide for a sample hand-to-eye count of the paper ballots, or of the voterverified paper record produced by a direct record electronic (DRE) machine, of a statewide ballot item in every county. The presidential ballot item shall be the subject of the sampling in a presidential election. If there is no statewide ballot item, the State Board shall provide a process for selecting district or local ballot items to adequately sample the electorate. The State Board shall approve in an open meeting the procedure for randomly selecting the sample precincts for each election. The random selection of precincts for any county shall be done publicly after the initial count of election returns for that county is publicly released or 24 hours after the polls close on election day, whichever is earlier. The sample chosen by the State Board shall be of one or more full precincts, full counts of mailed absentee ballots, full counts of one or more one-stop early voting sites, or a combination. The size of the sample of each category shall be chosen to produce a statistically significant result and shall be chosen after consultation with a statistician. The actual units shall be chosen at random. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count, the hand-to-eye count shall control, except where paper ballots or voter-verified paper record have been lost or destroyed or where there is another reasonable basis to conclude that the 2
02.27.2018 hand-to-eye count is not the true count. If such a reasonable basis is not found and the discrepancy between the hand-to-eye count and the mechanical or electronic count is significant, a complete hand-to-eye count shall be conducted. [§163A-1338] (c)
The State Board shall establish an electronic transmission system through which covered voters may apply for and receive voter registration materials, militaryoverseas ballots, and other information under this Part. The system shall be secured with the assistance of the Department of Information Technology if requested by the State Board.
County boards oversee local employees and maintain critical information that affects election security and investigations. The State must be able to readily obtain information, records, and equipment necessary to appropriately investigate elections matters. [§ 163A-741] (j1)
Notwithstanding G.S. 153A-98 or any other provision of law, all officers, employees, and agents of a county board of elections are required to give to the State Board, upon request, all information, documents, and data within their possession, or ascertainable from their records, including any internal investigation or personnel documentation; and are required to make available, upon request pursuant to an investigation under subsection (d) of this section, any county board employee for interview and to produce any equipment, hardware, or software for inspection. These requirements are mandatory and shall be timely complied with as specified in the request made by any two members of the State Board.
[153A-98] (c5)
Notwithstanding the requirements of this section, information shall be provided to the State Board of Elections and Ethics Enforcement from employee personnel records as provided in G.S. 163A-741.
Voter registration data includes Social Security numbers, dates of birth, and driver license numbers. Citizens must be allowed to exercise the franchise without compromising their personal data security. Registration forms should not be copied by voter drive volunteers, and new protections should be available to vulnerable populations. [§163A-1388(a)] Class 2 Misdemeanors.--Any person who shall, in connection with any primary or election in this State, do any of the acts and things declared in this subsection to be unlawful, shall be guilty of a Class 2 misdemeanor. It shall be unlawful: ... 3
(15)
02.27.2018 For any person who is not an elections official or who is not otherwise authorized by law to duplicate any form described in G.S. 163A-862 or to otherwise record from that form a registrant's signature, full or partial social security number, date of birth, the identity of the public agency at which the registrant registered under G.S. 163A-884, any electronic mail address submitted under Part 2 of Article 17 of this Chapter, or driver license number.
[§ 15C-2] The following definitions apply in this Chapter: ... (2) Address Confidentiality Program or Program. - A program in the Office of the Attorney General to protect the confidentiality of the address of qualifying individuals to prevent identification a relocated victim of domestic violence, sexual offense, or stalking to prevent the victim's assailants or potential assailants from finding the victim through public records. [§ 15C-3] The General Assembly establishes the Address Confidentiality Program in the Office of the Attorney General to protect the confidentiality of the address of a relocated victim of domestic violence, sexual offense, stalking, or human trafficking, or those in witness protection programs, engaged in law enforcement or judicial service, or whose public activities place at risk either their personal security or that of their family members to prevent the victim's assailants or potential assailants from finding the victim through public records. Under this Program, the Attorney General shall designate a substitute address for a program participant and act as the agent of the program participant for purposes of service of process and receiving and forwarding first-class mail or certified or registered mail. The Attorney General shall not be required to forward any mail other than first-class mail or certified or registered mail to the program participant. The Attorney General shall not be required to track or otherwise maintain records of any mail received on behalf of a program participant unless the mail is certified or registered mail. The immediate family members of any qualifying individual may be admitted to the Program. The Office of the Attorney General shall adopt standards and procedures for the uniform administration of the Program.
The State Board should designate personnel authorized to act temporarily in an emergency during which the Executive Director is physically unable to do so. [§ 163A-750] (d)
The State Board shall designate a member of agency staff who shall temporarily exercise emergency powers of the Executive Director under this Section in the case of the Executive Director’s death, incapacity, or unavailability.
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Sensitive elections systems are accessed daily by an array of employees at the state and county levels. Measures should be authorized to screen those working within elections administration to ensure staff and vendors are not compromised or place systems at risk. [§ 143B-968] (a)
(b)
As used in this section, the term: (1) "Current or prospective employee" means any of the following: a. A current or prospective permanent or temporary employee of the State Board or a current or prospective county elections director. b. A current or prospective contractor with the State Board of Elections and Ethics Enforcement. c. An employee or agent of a current or prospective contractor with the State Board of Elections and Ethics Enforcement. d. Any other individual otherwise engaged by the State Board of Elections and Ethics Enforcement who has or will have access to elections systems or confidential elections or ethics data. (2) "State Board" means the State Board of Elections and Ethics Enforcement. The Department of Public Safety may provide to the Executive Director of the State Board a current or prospective employee's criminal history from the State and National Repositories of Criminal Histories. The Executive Director shall provide to the Department of Public Safety, along with the request, the fingerprints of the current or prospective employee, a form signed by the current or prospective employee consenting to the criminal record check and use of fingerprints and other identifying information required by the State and National Repositories, and any additional information required by the Department of Public Safety. The fingerprints of the current or prospective employee shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check.
(c)
The Department of Public Safety may charge a fee to offset the cost incurred by it to conduct a criminal record check under this section. The fee shall not exceed the actual cost of locating, editing, researching, and retrieving the information.
(d)
The criminal history report shall be provided to the Executive Director of the State Board, who shall keep all information obtained pursuant to this section confidential to the State Board. A criminal history report obtained as provided in this section is not a public record under Chapter 132 of the General Statutes.
[§ 143B-969] (a)
As used in this section, the term: (1) "Current or prospective employee" means a current or prospective permanent or temporary employee of a county board of elections. (2) "State Board" means the State Board of Elections and Ethics Enforcement. 5
(b)
02.27.2018 The Department of Public Safety may provide to the director of a county board of elections a current or prospective employee's criminal history from the State and National Repositories of Criminal Histories. The Executive Director of the State Board shall provide to the Department of Public Safety, along with the request, the fingerprints of the current or prospective employee, a form signed by the current or prospective employee consenting to the criminal record check and use of fingerprints and other identifying information required by the State and National Repositories, and any additional information required by the Department of Public Safety. The fingerprints of the current or prospective employee shall be forwarded to the State Bureau of Investigation for a search of the State's criminal history record file, and the State Bureau of Investigation shall forward a set of fingerprints to the Federal Bureau of Investigation for a national criminal history record check.
(c)
The Department of Public Safety may charge a fee to offset the cost incurred by it to conduct a criminal record check under this section. The fee shall not exceed the actual cost of locating, editing, researching, and retrieving the information.
(d)
The criminal history report shall be provided to the director of the county board of elections, who shall keep all information obtained pursuant to this section confidential to the county board of elections, the State Board of Elections and Ethics Enforcement, and the Executive Director of the State Board. A criminal history report obtained as provided in this section is not a public record under Chapter 132 of the General Statutes.
[§ 163A-7] (a)
As used in this section, the term: (1) "Current or prospective employee" means any of the following: a. A current or prospective permanent or temporary employee of the State Board or a current or prospective county elections director. b. An employee or agent of a current or prospective contractor with the State Board. c. Any other individual otherwise engaged by the State Board who has or will have access to elections systems or confidential elections or ethics data. (2) "Criminal history" means a State or federal history of conviction of a crime, whether a misdemeanor or felony, that bears upon a current or prospective employee's fitness for employment in the State Board. The crimes include, but are not limited to, criminal offenses as set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7B, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 6
02.27.2018 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct ,in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots, Civil Disorders, and Emergencies; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 59, Public Intoxication; and Article 60, Computer-Related Crime. The crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol-related offenses, such as sale to underage persons in violation of G.S. 18B-302, or driving while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5. (b)
A criminal history record check shall be required of all current or prospective permanent or temporary employee of the State Board and all current or prospective county elections directors, which shall be conducted by the Department of Public Safety as provided in G.S. 143B-968. The criminal history report shall be provided to the Executive Director and may not be disclosed outside of the State Board. The criminal history report shall be kept confidential as provided in G.S. 143B-968(d) and is not a public record under Chapter 132 of the General Statutes.
(c)
If the current or prospective employee's verified criminal history record check reveals one or more convictions listed in subdivision (2) of subsection (a) of this section, the conviction shall constitute just cause for not selecting the person for employment, or for dismissing the person from current employment. The conviction shall not automatically prohibit employment; however, the following factors shall be considered, if readily ascertainable, in determining whether employment shall be denied or the employee shall be dismissed: (1) The level and seriousness of the crime. (2) The date of the crime. (3) The age of the current or prospective employee at the time of the conviction. (4) The circumstances surrounding the commission of the crime, if known. (5) The nexus between the criminal conduct of the current or prospective employee and job duties of the employee. (6) The prison, jail, probation, parole, rehabilitation, and employment records of the current or prospective employee since the date the crime was committed. (7) The current or prospective employee's candor in disclosing the circumstances surrounding the conviction. (8) The subsequent commission by the current or prospective employee of a crime listed in subdivision (2) of subsection (a) of this section. A prospective employee may be denied employment or current an employee may be dismissed who refuses to consent to a criminal history record check or to submit fingerprints or to provide other identifying information required by the State or National Repositories of Criminal Histories. Any such refusal shall constitute just cause for the employment
(d)
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02.27.2018 denial or the dismissal from employment. (e)
A conditional offer of employment or appointment pending the results of a criminal history record check authorized by this section may be extended.
(f)
A county board of elections shall require a criminal history record check of all current or prospective permanent or temporary employees of the county board of elections who have or will have access to the statewide computerized voter registration system maintained under G.S. 163A-874 and for any additional position or function as the State Board may designate
[§ 163A-778] (a)
As used in this section, the term: (1) "Current or prospective employee" means any of the following: a. A current or prospective permanent or temporary employee of a county board of elections. (2) "Criminal history" means a State or federal history of conviction of a crime, whether a misdemeanor or felony, that bears upon a current or prospective employee's fitness for employment in the State Board. The crimes include, but are not limited to, criminal offenses as set forth in any of the following Articles of Chapter 14 of the General Statutes: Article 5, Counterfeiting and Issuing Monetary Substitutes; Article 5A, Endangering Executive and Legislative Officers; Article 6, Homicide; Article 7B, Rape and Other Sex Offenses; Article 8, Assaults; Article 10, Kidnapping and Abduction; Article 13, Malicious Injury or Damage by Use of Explosive or Incendiary Device or Material; Article 14, Burglary and Other Housebreakings; Article 15, Arson and Other Burnings; Article 16, Larceny; Article 17, Robbery; Article 18, Embezzlement; Article 19, False Pretenses and Cheats; Article 19A, Obtaining Property or Services by False or Fraudulent Use of Credit Device or Other Means; Article 19B, Financial Transaction Card Crime Act; Article 20, Frauds; Article 21, Forgery; Article 26, Offenses Against Public Morality and Decency; Article 26A, Adult Establishments; Article 27, Prostitution; Article 28, Perjury; Article 29, Bribery; Article 31, Misconduct ,in Public Office; Article 35, Offenses Against the Public Peace; Article 36A, Riots, Civil Disorders, and Emergencies; Article 39, Protection of Minors; Article 40, Protection of the Family; Article 59, Public Intoxication; and Article 60, Computer-Related Crime. The crimes also include possession or sale of drugs in violation of the North Carolina Controlled Substances Act, Article 5 of Chapter 90 of the General Statutes, and alcohol-related offenses, such as sale to underage persons in violation of G.S. 18B-302, or driving while impaired in violation of G.S. 20-138.1 through G.S. 20-138.5.
(b)
The director of a county board of elections shall require a criminal history record check of all current or prospective permanent or temporary employees, as provided in G.S. 163A-7(e), which shall be conducted by the Department of Public Safety as provided in G.S. 143B-969. A county board of elections shall provide the criminal history record of all current or 8
02.27.2018 prospective permanent or temporary employees to the Executive Director and the State Board The criminal history report shall be kept confidential as provided in G.S. 143B-969(d) and is not a public record under Chapter 132 of the General Statutes. (c)
If the current or prospective employee's verified criminal history record check reveals one or more convictions listed in subdivision (2) of subsection (a) of this section, the conviction shall constitute just cause for not selecting the person for employment, or for dismissing the person from current employment. The conviction shall not automatically prohibit employment; however, the following factors shall be considered, if readily ascertainable, in determining whether employment shall be denied or the employee shall be dismissed: (1) The level and seriousness of the crime. (2) The date of the crime. (3) The age of the current or prospective employee at the time of the conviction. (4) The circumstances surrounding the commission of the crime, if known. (5) The nexus between the criminal conduct of the current or prospective employee and job duties of the employee. (6) The prison, jail, probation, parole, rehabilitation, and employment records of the current or prospective employee since the date the crime was committed. (7) The current or prospective employee's candor in disclosing the circumstances surrounding the conviction. (8) The subsequent commission by the current or prospective employee of a crime listed in subdivision (2) of subsection (a) of this section.
(d)
The county board of elections may deny employment to or dismiss a current or prospective employee who refuses to consent to a criminal history record check or to submit fingerprints or to provide other identifying information required by the State or National Repositories of Criminal Histories. Any such refusal shall constitute just cause for the employment denial or the dismissal from employment.
(e)
The county board of elections may extend a conditional offer of employment or appointment pending the results of a criminal history record check authorized by this section.
[§ 163A-774(b)] (b) Appointment, Duties; Termination. – Upon receipt of a nomination from the county board of elections stating that the nominee for director of elections is submitted for appointment upon majority selection by the county board of elections the Executive Director shall issue a letter of appointment of such nominee to the chairman of the county board of elections within 10 days after receipt of the nomination.nomination, unless good cause exists to decline the appointment. The Executive Director may delay the issuance of appointment for a reasonable time if necessary to obtain a criminal history records check sought under 9
02.27.2018 G.S. 143B-968. The Executive Director shall apply the standards provided in G.S. 163A-7 in determining whether a nominee with a criminal history shall be selected. If the Executive Director determines a nominee shall not be selected and does not issue a letter of appointment, the decision of the Executive Director of the State Board shall be final unless the decision is, within ten days from the official date on which it was made, deferred by the State Board. If the State Board defers the decision, then the State Board shall make a final decision on appointment of the executive director and may direct the Executive Director to issue a letter of appointment. Thereafter,If an Executive Director issues a letter of appointment, the county board of elections shall enter in its official minutes the specified duties, responsibilities and designated authority assigned to the director by the county board of elections. The specified duties and responsibilities shall include adherence to the duties delegated to the county board of elections pursuant to G.S. 163A-769. A copy of the specified duties, responsibilities and designated authority assigned to the director shall be filed with the State Board. In the event the Executive Director is recused due to an actual or apparent conflict of interest from rendering a decision under this section, the chair and vice-chair of the State Board shall designate a member of staff to fulfill those duties.
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