In North Carolina, a provisional ballot is used in two circumstances: (1) when there are questions about a voter’s eligibility to vote, and (2) when a voter does not or cannot produce an acceptable form of photo identification when voting in person. N.C. Gen. Stat. § 163-166.11; Numbered Memo 2023-04, 10/12/2023 at 3*.* County Boards of Election use different processes to review eligibility-based provisional ballots and identification-based provisional ballots. *Numbered Memo 2023-04, 10/12/2023* at 3*.* For both types of provisional ballots, after the review process the County Board of Elections counts the verified ballots and includes them in the county canvass. *Numbered Memo 2023-04, 10/12/2023* at 3*.*
At the close of polls, the election officials at each voting place transmit the provisional ballots cast at that location to the County Board of Elections. N.C. Gen. Stat. § 163-166.11(5). After Election Day, the County Board of Elections conducts a verification process for the provisional ballots. N.C. Gen. Stat. § 163-166.11(5). No later than noon on the second day after the close of polls, the County Board of Elections is required to publish the number of provisional ballots cast at each voting place. N.C. Gen. Stat. § 163-166.11(5).
The County Board of Elections must meet between Election Day and the canvass to make a determination on each provisional ballot. *Numbered Memo 2023-04, 10/12/2023* at 23. A provisional ballot may not be opened or tabulated before the County Board of Elections has made an official determination on the ballot. *Numbered Memo 2023-04, 10/12/2023 at 23. The County Board of Elections makes its determination based on research conducted by staff and additional inquiries as needed. *Numbered Memo 2023-04, 10/12/2023 at 23.
The County Board of Elections reviews each type of provisional ballot using different verification processes. All ballots determined to be valid after the review process are counted and included in the canvass.
For provisional ballots voted based on questions about the voter’s eligibility to vote, the County Board of Elections staff conducts research on the voter’s eligibility to vote, including on the voter’s residence and voter registration status. *Numbered Memo 2023-04, 10/12/2023* at 3. The research takes place after Election Day during the canvass period. *Numbered Memo 2023-04, 10/12/2023 at 3. Based on their findings, the staff makes a recommendation as to whether the County Board of Elections should approve or disapprove each provisional ballot. *Numbered Memo 2023-04, 10/12/2023 at 3.
For voters who cast a provisional ballot because they were not found on the registered voter list, staff researches whether the voters registered or attempted to register to vote. *Numbered Memo 2023-04, 10/12/2023* at 9. If staff determines that the voter did in fact properly register to vote, the provisional ballot must be approved. *Numbered Memo 2023-04, 10/12/2023 at 9.* If staff is able to determine before the canvass begins that a voter attempted to register to vote but was missing information required to complete registration, staff must attempt to contact the voter. *Numbered Memo 2023-04, 10/12/2023* at 9*.* If the voter provides the missing information to the County Board of Elections by 5 p.m. on the day before the canvass, the voter’s provisional ballot is approved to be counted. *Numbered Memo 2023-04, 10/12/2023* at 9.
If a voter submitted a provisional ballot because the pollbook indicated that the voter had already voted, the staff must determine whether the voter had in fact already voted in the election in question. *Numbered Memo 2023-04, 10/12/2023* at 12*.* Any instances of “double voting” must be reported immediately to the State Board of Elections for further review. *Numbered Memo 2023-04, 10/12/2023* at 12*.*
Ultimately, based on the research and recommendations of staff, the County Board of Elections decides whether the provisional voter was properly registered and eligible to vote in the election. *Numbered Memo 2023-04, 10/12/2023* at 3*.* The County Board of Elections’ final determinations on provisional ballots must take place at a meeting that is open to the public. *Numbered Memo 2023-04, 10/12/2023* at 3*.*
A voter who cast a provisional ballot due to lack of identification may bring photo identification to the County Board of Elections no later than 5 p.m. on the business day before the county canvass. *Numbered Memo 2023-04, 10/12/2023* at 15*.* A staff member of the County Board of Elections verifies the identification in the same manner as an election official at a voting site would — by determining whether the identification is an acceptable type, whether the photo bears resemblance to the voter, and whether the name on the identification is substantially the same as the voter’s name on the voter list. *Numbered Memo 2023-04, 10/12/2023* at 15*.*
If the voter timely presents photo identification that the staff determines to be acceptable, the staff member receiving the identification must recommend approval of the provisional ballot. *Numbered Memo 2023-04, 10/12/2023* at 15. If the voter is otherwise eligible to vote, the County Board of Elections must count the provisional ballot. *Numbered Memo 2023-04, 10/12/2023* at 15.
If the County Board of Elections staff member finds the voter’s identification does not satisfy the requirements, the employee must recommend disapproval of the provisional ballot. *Numbered Memo 2023-04, 10/12/2023* at 15*.* The employee must inform the voter of the reason the identification is unsatisfactory and that the County Board of Elections will review and consider the voter’s ballot. *Numbered Memo 2023-04, 10/12/2023* at 15. The voter may appear at the meeting of the County Board of Elections and present an argument for why the identification should be accepted. *Numbered Memo 2023-04, 10/12/2023* at 15.
Some voters who cast provisional ballots due to a lack of photo identification also complete a Photo ID Exception Form, claiming an exemption to the identification requirement. *Numbered Memo 2023-04, 10/12/2023* at 13. County Board of Elections staff are required to recommend approval of ballots that are accompanied by this type of form. *Numbered Memo 2023-04, 10/12/2023 at 13. In turn, the County Board of Elections is required to count the ballot, unless it unanimously finds that the Photo ID Exception Form is false. *Numbered Memo 2023-04, 10/12/2023 at 13. Before the County Board of Elections makes a final determination that a form is false, the voter must be given notice and the opportunity to address the County Board of Elections on the issue. *Numbered Memo 2023-04, 10/12/2023* at 13*.* Staff should prioritize the review of this type of provisional ballot as early as possible in the canvass period, so that there is appropriate time for the notice and opportunity process. *Numbered Memo 2023-04, 10/12/2023* at 14.
Once the County Board of Elections has made a final determination on the provisional ballots, the ballots that have been approved are tabulated. *Numbered Memo 2023-04, 10/12/2023* at 25. The results of the tabulation are signed by the County Board of Elections members or election officials who participated in the count. *Numbered Memo 2023-04, 10/12/2023 at 25. This process happens before the canvass. N.C. Gen. Stat. § 163-182.2(4); Numbered Memo 2023-04, 10/12/2023 at 25.* The counted provisional ballots are retained and included for review at the official county canvass. N.C. Gen. Stat. § 163-182.2.5(b); Numbered Memo 2023-04, 10/12/2023 at 25.