Court filing
Democracy NC Evidentiary Hearing Transcript, Vol. 2 (Exhibit 5 to complaint) — Moore v. Circosta (M.D.N.C. No. 5:20-cv-00507)
Filed September 26, 2020 in Moore v. Circosta; one of 20 filings from this case.
Record facts
| Court | U.S. District Court for the Middle District of North Carolina |
|---|---|
| Filed | 2020-09-26 |
U.S. District Court for the Middle District of North Carolina · No. 1:20-cv-00911-WO-JLW · Doc. 1-6 · 2020-09-26 · Docket on CourtListener
Full text
EXHIBIT 5
Case 1:20-cv-00911-WO-JLW Document 1-6 Filed 09/26/20 Page 1 of 139
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IN THE UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF NORTH CAROLINA
DEMOCRACY NORTH CAROLINA,
Greensboro, North Carolina
)
THE LEAGUE OF WOMEN VOTERS July 21, 2020
)
OF NORTH CAROLINA,
9:05 a.m.
)
DONNA PERMAR, JOHN P. CLARK,
)
MARGARET B. CATES,
)
LELIA BENTLEY, REGINA WHITNEY
)
EDWARDS, ROBERT K. PRIDDY II, File No. 1:20CV457
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SUSAN SCHAFFER, and
)
WALTER HUTCHINS,
)
)
Plaintiffs,
)
v.
)
)
THE NORTH CAROLINA STATE BOARD OF TRANSCRIPT OF
)
ELECTIONS, DAMON CIRCOSTA, in his EVIDENTIARY HEARING
)
official capacity as CHAIR OF THE Volume 2 of 3
)
STATE BOARD OF ELECTIONS, STELLA )
ANDERSON, in her official
BEFORE THE HONORABLE
)
capacity as SECRETARY OF THE
WILLIAM L. OSTEEN, JR.
)
STATE BOARD OF ELECTIONS, KEN U.S. DISTRICT JUDGE
)
RAYMOND, in his official capacity )
as MEMBER OF THE STATE BOARD OF )
ELECTIONS, JEFF CARMON III, in
)
his official capacity as MEMBER )
OF THE STATE BOARD OF ELECTIONS, )
DAVID C. BLACK, in his official )
capacity as MEMBER OF THE STATE )
BOARD OF ELECTIONS, KAREN BRINSON )
BELL, in her official capacity as )
EXECUTIVE DIRECTOR OF THE STATE )
BOARD OF ELECTIONS, THE NORTH
)
CAROLINA DEPARTMENT OF
)
TRANSPORTATION, J. ERIC BOYETTE, )
in his official capacity as
)
TRANSPORTATION SECRETARY,
)
THE NORTH CAROLINA DEPARTMENT OF )
HEALTH AND HUMAN SERVICES,
)
and MANDY COHEN, in her official )
capacity as SECRETARY OF HEALTH )
AND HUMAN SERVICES,
)
COURT REPORTER:
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Defendants.
Joseph B. Armstrong, FCRR
)
324 W. Market, Room 101
)
and
Greensboro, NC 27401
)
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PHILIP E. BERGER, in his
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official capacity as
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PRESIDENT PRO TEMPORE OF THE
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NORTH CAROLINA SENATE, and
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TIMOTHY K. MOORE, in his
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official capacity as SPEAKER
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OF THE NORTH CAROLINA HOUSE
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OF REPRESENTATIVES,
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Defendant-Intervenors.
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__________________________________ )
IN COURT APPEARANCES:
FOR THE PLAINTIFFS:
HILARY H. KLEIN
SOUTHERN COALITION FOR SOCIAL JUSTICE
1415 W. HWY. 54, STE. 101
DURHAM, NC 27707
ALLISON JEAN RIGGS
SOUTHERN COALITION FOR SOCIAL JUSTICE
1415 W. HWY. 54, STE. 101
DURHAM, NC 27707
FOR THE DEFENDANTS:
ALEXANDER MCCLURE PETERS
N.C. DEPARTMENT OF JUSTICE
POB 629
RALEIGH, NC 27602-0629
FOR THE INTERVENORS:
NICOLE JO MOSS
COOPER & KIRK, PLLC
1523 NEW HAMPSHIRE AVE., NW
DAVID H. THOMPSON
COOPER & KIRK, PLLC
1523 NEW HAMPSHIRE AVE., NW
WASHINGTON, DC 20036
PETER A. PATTERSON
COOPER & KIRK, PLLC
1523 NEW HAMPSHIRE AVE., NW
WASHINGTON, DC 20036
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I N D E X
WITNESSES FOR THE PLAINTIFF: PAGE
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Video testimony of Marshall Tutor, Continued
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Video testimony of Paul Gronke, Ph.D
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Video testimony of Theodore Plush, D.O.
WITNESSES FOR THE DEFENDANT:
KAREN BRINSON BELL
Direct Examination By Mr. Peters
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Direct Examination By Ms. Moss
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Cross-Examination By Ms. Riggs
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Redirect Examination By Ms. Moss
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Redirect Examination By Mr. Peters
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Recross-Examination By Ms. Riggs
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P R O C E E D I N G S
(At 9:05 a.m., proceedings commenced.)
THE COURT: Is Ms. Bell an attorney?
MR. PETERS: She is not, Your Honor.
THE COURT: She's still going to have to sign one of
those forms.
MR. PETERS: We have alerted her to that, and I think
she was going to print it off and bring it signed and
everything, so I think we're straight on that.
THE COURT: Sounds good.
MR. PETERS: Thank you so much.
THE COURT: All right. Everyone is back, and we're
ready to continue this proceeding. So where were we? We were
getting ready for Mr. Peters's cross-examination of
Mr. Bartlett. Ms. Klein, you can start playing when you're
ready.
MS. KLEIN: Yes. Thank you, Your Honor. I'm sorry,
Your Honor. I realize that I'm a little bit off with the
timestamp, so we might hear a little bit of testimony that was
heard yesterday. I apologize for that.
THE COURT: That's all right.
(At 9:07 a.m, video testimony continued.)
(At 9:22 a.m. video testimony concluded).
MS. MOSS: Your Honor, I would just like to make
clear, early on, I had an objection to Mr. Bartlett offering an
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opinion related to the uniform hours requirements following --
THE COURT: The MATS addition, and since we were
getting toward the end, is there -- I understand the basis of
the opinion, and -- I mean the objection. I think it's the
same for both. Is there anything you want to add to that
objection?
MS. MOSS: The only thing I would say is Ms. Klein
suggests that it only goes to weight. I certainly agree it
establishes that no weight should be given to these opinions.
I think it also goes to whether the opinion should be allowed
in the first instance.
It would be the equivalent of a doctor who, you know,
may be qualified by their medical licensure to offer an
opinion; but if they haven't examined the records of the
patient, if they haven't reviewed anything to bring them
up-to-date on the current situation, they haven't spoken to
anybody, then they're just offering opinions that have no
basis. And the point of opinion testimony is that it is an
expert who has brought his expertise to bear, and Mr. Bartlett
has not established that he has that expertise with respect to
either uniform hours or his speculations about how the MATS
would function given that he did no research and admits that he
has no personal knowledge about that situation or how they're
going to be ruled out or anything else related to that.
THE COURT: All right.
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MS. MOSS: So that's --
THE COURT: Anything you want to add?
MS. KLEIN: I do, Your Honor, and I'll be brief. I
won't repeat myself from yesterday. But as far as the uniform
hours, it's very relevant, you know, what impacts flexibility
had on county boards of election when they have flexibility in
hours. That is directly relevant to how -- what county boards
will do if given that flexibility again. So, you know, that's
the patient.
THE COURT: So your question to Mr. Bartlett was the
downtime has expenses, labor, and that's -- labor is the single
largest expense. You then asked Mr. Bartlett if they didn't
have that labor expense associated with downtime as a result of
uniform hours, would that then allow the county boards to have
more polling places? I mean, how does he say that, just out of
curiosity?
MS. KLEIN: I think it's -- I mean --
THE COURT: Isn't that -- let me ask it more
specifically. Isn't that a function of how much money would be
saved, how much money it would cost to have additional polling
places, and what decision the county board of elections made
with respect to any savings from flexibility?
MS. KLEIN: I think the opinion and the principle
that he is speaking to, Your Honor, is a lot more basic than
that. It's just the connection between -- the point is that
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when counties manage their budgets, they have limited
resources. The uniform hours requirement require them to spend
money during downtime when voters in a particular area are not
likely to be able to come, right, because of work schedules or
geographically specific schedules and then that drain on
resources naturally prevents counties from spending their
resources on other things, one of which is offering other
voting sites.
THE COURT: So what is his expertise that allows him
to say if the county has more money available, then they might
spend it on polling places? They might spend it on salaries
for the election board members. They might -- I mean, what
expertise does he bring to the table to suggest the correlation
between any potential sales, whatever that number might be, a
hundred bucks, a thousand dollars, ten thousand dollars,
whatever that number might be in polling places?
MS. KLEIN: His expertise comes from having oversight
over early voting plans, reviewing early voting plans in five
presidential elections, having the post hoc meetings with
county boards taking the surveys. He has oversight -- we
established this more on the direct, but he had oversight and a
common view, right, of -- an overall view that I don't think
anybody else in this case --
THE COURT: I mean, I have a common view. We all in
this room, anybody who wants to pick up the documents,
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understands the budget process. What makes his expertise any
more valuable on the question of how might extra money be spent
on a budget than any person sitting in here who's a voter?
MS. KLEIN: Because he reviewed -- specifically,
during his time, he reviewed county board of elections' early
voting plans and saw how they managed their budgets together,
which I -- you know, nobody else that I'm aware of has reviewed
that for five --
THE COURT: Did he ever participate in the budget
process? Does he have any idea how much money might be saved
if the uniform voting hours plan is not in effect? Any idea at
all?
MS. KLEIN: Again, he's providing a qualitative
analysis on how -- what he observed how county boards are using
the resources that they have.
I would also note that early voting plans are still
in process here, like that that data -- that specific data is
not yet available, and, therefore, his overview and opinion of
how county boards allocate resources is relevant and useful to
the Court. And it is a qualitative opinion. It's not
quantitative. We plan to elicit testimony the Court will hear
that's more of a quantitative analysis, but his --
THE COURT: The expert opinion doesn't have to be a
quantitative analysis, not in the least, but there still has to
be some basis within the expertise to offer the opinion. In
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terms of management of elections, he certainly has that
expertise.
It seems to me in terms of his own budget, the budget
that the North Carolina Legislature from what, '93 to 2013, 20
years, I'm assuming he had participated in that process because
he talks about the honorables down in Raleigh, and he talks
about how money is spent, but I don't hear him saying -- and
he's clearly familiar with county commissions. But in terms of
the budget process and whether any excess money, whatever
amount that might be, that might be generated from any savings
from abandoning the uniform hours process, I mean, they're
expenditures, and the honorables who sit within the county
commissions and within the local boards of election are the
ones who get to make the decision -- it seems to me, maybe I'm
wrong about this -- in terms of how money is spent.
And for him to say if this, then that will occur, if
savings, then more polling places, I just -- in the absence of
some information as to how he reaches that conclusion, the
amounts of saving, the cost of additional polling places, why
county boards might be incentivized in some fashion to create
these polling places, how that county board budget -- how those
decisions are made, anything -- some basis to say here's why
I'm an expert.
But having said those things, I hear your response in
terms of this is a quantitative thing. As I've done before,
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I'm going to take it under advisement. I'll make a
determination of whether I think it's admissible in terms of
his particular expertise; and then, if so, how much weight to
apply to that particular testimony. So I'll takes it under
advisement.
MS. KLEIN: Thank you. May I address MATS very
briefly?
THE COURT: The what?
MS. KLEIN: The Multi --
THE COURT: Yes.
MS. KLEIN: I just want to highlight for the Court
that his experience with MAT teams during his service is
relevant and useful to the Court's analysis because this would
be a very different situation if Mr. Bartlett were to come and
say we have robust, long-standing MATS, never had any issues,
no disparities in any county, and that's been a long-standing
tradition in North Carolina. And it's very relevant to the
Court's analysis that that is absolutely not the case, and that
that's his observations.
So, again, consistent with uniform hours, even if
that one isolated opinion, you know, the Court, you know,
decides whether or not to assign expert weight to that one
isolated opinion, all of the testimony that Mr. Bartlett in his
declarations and in the video gave regarding his experience
with those and his experience overseeing the flexibility of --
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when the uniform hours requirement was not in effect, the
underlying information, I believe, is very relevant to the
Court's analysis, and I hope that the Court would take that
into consideration, notwithstanding any weight assigned to the
final opinion.
THE COURT: I will.
MS. KLEIN: Thank you.
THE COURT: You may continue.
MS. KLEIN: Your Honor, Plaintiffs call by video
testimony Professor Paul Gronke.
MS. RIGGS: Your Honor, may I approach with the
transcript?
THE COURT: You may. Thank you. You may proceed.
(At 9:34 a.m, video testimony begins.)
THE COURT: Can you pause it just a second. Let me
ask. Is anybody using the big television screen? The way I'm
set up, it's easier for me to look at that than this one, and I
think the picture is little better. I'm going to turn it a
little if nobody is using it. All right. You can continue
playing.
(At 9:35 a.m, video testimony continued.)
(At 9:46 a.m., video testimony paused.)
THE COURT: You want to address this?
MR. PATTERSON: Yes, Your Honor. This has to do, I
think you'll recall, with Dr. Gronke's reply declaration
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addressing in-county poll worker requirement that is now the
rule after HB11769, we would object to that, and you had
indicated that you were going to strike those portions of his
declarations from the record. My understanding was that then
he could not come and give testimony and speak on this issue,
and it will be sharpened a little on the redirect, I believe.
In the answer I believe he gives here, he speaks more in
generalities about the effects of poll worker shortages and
things of that nature. I don't have an objection to that. But
the objection is to any specific commentary on the in-county
poll worker requirement. He could have put in a new
declaration when Plaintiffs submitted their amended preliminary
injunction motion to address those if you wish to address those
topics.
THE COURT: Ms. Klein?
MS. KLEIN: Thank you, Your Honor. First of all, I
would note there's no objection to any discussion of Georgia
and what happened in the Georgia election, so I think that that
stays in regardless.
As far as this county versus -- I'm so sorry. I keep
on forgetting to take off my mask. I'm sorry, Your Honor.
So the Georgia election information, I believe, stays
in, and he discusses -- he discusses that, and other witnesses
will discuss those as well.
Additionally, Your Honor, as far as the county
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requirement or precinct requirement, these are two sides of the
same coin. The underlying issue is a restriction on who can
serve as a poll worker, and the original relief requested was
to lift that requirement entirely, and the -- what he discussed
in his original declaration was about poll worker shortages,
generally --
THE COURT: Which related specifically to the
requirement that poll workers come from the precinct, right?
MS. KLEIN: Yes, Your Honor.
THE COURT: And 1169 changed that.
MS. KLEIN: It did, Your Honor, but --
THE COURT: It allowed poll workers to come from the
county, and he did not submit a new declaration addressing that
particular issue. Right?
MS. KLEIN: He did not. It was included --
THE COURT: And his declaration didn't provide any
context to his opinion about the requirement that the poll
workers come from the precinct. It just said that requirement
needs to be lifted. Otherwise, you're going to have a problem
with poll workers, right?
MS. KLEIN: Yes, Your Honor, and --
THE COURT: And that requirement was lifted rendering
his opinion moot, didn't it?
MS. KLEIN: No, Your Honor --
THE COURT: It has no effect in the case.
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MS. KLEIN: I would contend that it was modified, not
lifted, right? It's the --
THE COURT: Okay. We'll go with "modified" then. It
was modified to again critique the change in the law that had
taken place addressing his opinion in the first instance. He
didn't say anything in his original declaration about, oh, you
know, countywide won't be sufficient or statewide won't be
sufficient or countrywide won't be sufficient. He just said in
his original declaration that that precinct -- the requirement
that the poll workers come from the precinct needs to be
lifted. He didn't say how much or by what. And then he came
back in the reply affidavit and said it -- countywide won't
work. I mean, so what will exactly?
MS. KLEIN: I would say two things to that. The
underlying evaluations he has about poll worker shortages and
that there will be poll worker shortages, that remains, I
believe, admissible and relevant to the Court's opinion -- or
to the Court's consideration rather, generally.
The second -- the second thing I would say is that,
again, referring back to Federal Rule of Civil Procedure 57 --
THE COURT: Let me refer you back to something. In
the consented-to motion where the parties agree that a modified
preliminary injunction motion would be filed, in that
particular motion the parties agreed to a briefing schedule,
and the Plaintiffs represented then that they would stand on
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the original brief and the original affidavits, right?
MS. KLEIN: Yes, Your Honor.
THE COURT: And they didn't say anything in that
about filing affidavits in support of the reply, only that they
would address the changes in the reply. Right?
MS. KLEIN: Yes, Your Honor, that we would address
within the scope of the reply. And we -- and just to be clear,
we respect the Court's opinion and accepted the Court's opinion
to strike those from his declaration. What I'm referring to
here is the testimony, and here I would contend --
THE COURT: What notice did they have in this process
that this particular witness would come in and say a
requirement that poll workers have to come from the county, or
can come from the county, would so severely restrict the
ability to recruit poll workers that they couldn't get enough?
What notice did anybody have of that?
MS. KLEIN: They had notice in the second amended
complaint when those allegations were added in the amended
motion --
THE COURT: In the affidavits. In the affidavits.
MS. KLEIN: And in the affidavits, they had notice
because he talked about poll worker shortage --
THE COURT: As it related to the precinct
requirement, right?
MS. KLEIN: As it related --
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THE COURT: -- specifically.
MS. KLEIN: -- to the precinct requirement, which is,
again, you know, this two sides of the same coin --
THE COURT: They are not two -- we're talking about
something different, and here's why we're talking about
something different. It's not two sides of the same coin.
It's an expert opinion that changes only after all the
responses have been filed. I mean, the point -- the whole
point of filing affidavits in support of the motion is to give
the other side notice of what's coming so they can prepare to
respond, and this changed. There's no doubt in my mind it
changed. Is there any doubt in your mind that it changed?
MS. KLEIN: It was modified certainly. I would agree
with that, Your Honor.
THE COURT: And so they then -- there's a couple of
things they could do in response. Let me explain it real
carefully. So they can sit on the affidavit and go, you know
what? This opinion is irrelevant because the requirement is
county, not precinct. So that would be a fair response. Do
you agree with that?
MS. KLEIN: I would say the unique --
THE COURT: No, do you agree with that? Would that
be a fair response on their part?
MS. KLEIN: I don't agree because of the unique
circumstances of this matter, the fact that depositions were
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taken. So they had notice --
THE COURT: Those unique circumstances do not excuse
not filing your expert's opinion at the start, but modifying it
in the reply, in my mind.
MS. KLEIN: Okay. I understand that, Your Honor. I
would just point out to the Court that he was examined on this
in his deposition. He was examined thoroughly on the --
THE COURT: All right. So what witness can they call
at this particular juncture? Let's go back to last week when
we were lining up all this discovery. Which of their witnesses
can they call in response to Gronke's opinion that countywide
requirement is insufficient to allow recruitment of poll
workers?
MS. KLEIN: Well, they've had the opportunity, Your
Honor, to cross-examine him in a deposition and --
THE COURT: No, what witness would they call in
response to that opinion?
MS. KLEIN: If I'm recalling correctly, their witness
Callahan perhaps talked about --
THE COURT: Did he put in his opinion about
countywide?
MS. KLEIN: I would have to look back at the specific
record, but I'm not -- I'm not certain that no one -- no
witness would be able to talk about this. So I'm not
certain -- I would have to look back at the record to answer
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that question, Your Honor.
THE COURT: Do you understand how if an expert
witness offers an opinion, the other side responds, makes
decisions about how to respond in light of the expert's
opinion, and the expert's opinion is different from what the
facts are --
MS. KLEIN: I understand --
THE COURT: -- then that leads people to do things in
reliance on what the opinion is. And if you come back in a
reply and withdraw the first opinion and put a new opinion in,
everything's changed for the parties responding.
MS. KLEIN: I understand, and I do appreciate that,
Your Honor. I would just point out a couple of things. He --
it's not as if he never talked about anything related to poll
worker shortages at all. He did talk about poll worker
shortages generally, and so this is more of a supplement.
The second thing I would say is that here they have
had -- they did have some sort of notice in the amended
complaint, they had notice in the amended PI motion, and then
they also had the opportunity to depose before the --
THE COURT: What notice did they have that this
witness would modify his opinion to expand it to say that a
countywide requirement was not sufficient to permit recruitment
of poll workers? What notice?
MS. KLEIN: The fact that he talked about the poll
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worker requirement at the beginning, and they came back with a
response saying that it was completely alleviated by the county
requirement and his reply was responsive to that.
But I again want to reiterate that we accept that the
Court has struck those from his declaration, and I'm not
arguing for those. What I'm --
THE COURT: You're arguing for him to be allowed to
offer his opinion here after I've struck it in a declaration,
aren't you?
MS. KLEIN: Yes, Your Honor, and that's because under
Federal Rule of Civil Procedure 37(c)(1), there are exceptions,
specific exceptions to when new information can be considered
by the Court for an expert opinion, and those are if the
nondisclosure was either harmless or substantially justified.
And here, and I understand that the Court might not
consider that substantially justified for the reasons that
we've discussed, but the harmless and the relevance to the
Court's analysis and the fact that it was harmless in that this
was -- they have been since given the chance to depose this
expert. They have been given the chance to -- they already had
notice of poll worker shortages being an issue and having an
expert testify to that. Again, I would have to check the
record, but an expert could be called to testify about that
now. We've had depositions --
THE COURT: Suppose they stood up today and said,
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Judge, if you're going to let this in, then we want to
supplement our record with a new expert to explain why the
countywide requirement is sufficient. Are you going to agree
to that? Is that okay with you?
MS. KLEIN: It would depend on if it was going to
substantially delay the Court's decision in this matter, Your
Honor.
THE COURT: Let's say they'll have it tomorrow. Is
that okay?
MS. KLEIN: In order --
THE COURT: It wouldn't be fair, would it, to you if
that happened?
MS. KLEIN: Your Honor, that -- I would strongly
consider that -- if that was the timing that was offered, I
would strongly consider -- I would have to strongly consider
that --
THE COURT: But it really wouldn't be fair because
they're being offered a chance to do something with an expert
that's new, and you wouldn't have a chance to respond. That
wouldn't really be fair, would it? Your chance passed with the
reply.
MS. KLEIN: I understand, Your Honor. I would just
say that he was -- in the deposition, he was questioned
extensively about the county requirement.
THE COURT: Well, nobody knows what's coming in and
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what's not as is clear from the objections.
MS. KLEIN: May I just say one more thing, Your
Honor?
THE COURT: Um-hum.
MS. KLEIN: And this is to the point that counsel
already made. His responses during his video testimony talk
about a variety of different issues. It's not just about the
county requirement. So I would --
THE COURT: This -- what we're dealing with now is
limited to whether the county requirement is sufficient in
terms of his expert testimony, and you all do not have the
benefit of my order. It's coming. It will explain things
further. I did consider whether or not, in light of the fact I
was allowing discovery, whether or not I should -- you can call
it "reconsider" or whether or not I should do something
different because I was allowing discovery, and, for reasons
I'll explain in that opinion, I elected not to.
One of the reasons is when you're dealing with expert
witnesses, the party who's filed the affidavit, the report,
whatever you want to call it, in support of the motion, when
that expert witness opinion is not based upon the facts as they
exist at the time the motion is filed, which was in this case
after 1169, I think parties are entitled to rely on that
opinion, and I think parties are entitled to make decisions
based on how to address that opinion based upon how -- what --
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how the opinion exists.
And here, at least in my mind, the opinion of
Dr. Gronke opened the door for two different possibilities.
One was a possibility of coming in and saying, hey, the
requirement is countywide, and here's why countywide is
sufficient. Now, that's one thing.
But, more significantly, and I'm only going off my
experience in watching these things unfold in terms of expert
witnesses, one perfectly legitimate strategy is to ignore an
expert opinion that's clearly not based on the facts of the
case, which was the case here, and then come into court and say
that expert witness' opinion is either inadmissible or entitled
to no weight, whichever one you pick, because it's not based on
the facts of the case.
So I say all that simply to say that the decisions
are made as cases go along. This is a motion for preliminary
relief. It doesn't mean that this issue is now closed for
purposes of the case. It's a question -- in my mind, it's a
question of what in fairness should be considered here, and
when a party's opportunity to respond directly and fairly to an
expert witness report is cut off because the expert witness
report is not based on facts that exist in the case at the time
the motion is filed, then in my mind, for several reasons, or
at least two reasons that will be more fully explained in my
opinion, that becomes inadmissible.
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So having said that, on this particular objection as
it relates to Dr. Gronke's opinion specifically as to whether
or not a countywide requirement would allow the recruitment of
sufficient poll workers for the November 2020 election, I've
struck that opinion from the case because that evidence was not
submitted in support of the original motion. It's just struck
for purposes of this proceeding and no other in this case. But
for purposes of this proceeding, that evidence is struck.
Now, having said that, I'm going to sustain the
objection to further opinions on that same issue in terms of
Dr. Gronke's testimony, but I'm also going to let you play it
so you can make your proffer of what the testimony would have
been. So you can proceed ahead and play the video.
MS. KLEIN: Thank you.
MR. PATTERSON: Your Honor, may I make one point
quickly, just a clarification? I believe opposing counsel said
we were not objecting to testimony about Georgia, but we are
objecting to that testimony. That was the specific state he
pointed to in his reply declaration and said they have a
similar in-county --
THE COURT: I can't remember. Was that in those
paragraphs?
MR. PATTERSON: Yes, there were in paragraphs 11 to
13, and he put some news articles that actually did not
attribute poll worker shortages to long lines and those sorts
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of things. But that was his opinion. He said Georgia has a
similar in-county requirement as North Carolina, so this is
evidence of what's going to happen.
THE COURT: Okay. I don't have Gronke's declaration
in front of me, and I don't have my draft opinion in front of
me. But the expert testimony as it relates to the paragraphs
previously struck, I'm going to sustain that objection,
whatever was contained in those paragraphs, as new opinion that
was not submitted in support of the original motion. That will
be further explained in an order -- I would like to say, you
know, issued soon, but it's in the process for reasons that
I'll explain in the order.
That's my ruling. I'm going to allow the proffer to
be made with the testimony. So you can go ahead and play it.
MR. PATTERSON: Thank you.
THE COURT: You can go ahead and continue the video.
MS. KLEIN: Thank you.
(At 10:05 a.m., video testimony continued.)
(At 10:08 a.m., video testimony paused.)
THE COURT: All right. Hold for a second. So on
page 16 of the deposition -- of the written transcript, which
is coming in as the court transcript, his testimony just now,
"If they do not have the flexibility, the likely outcome is
precinct salvation." I think what he said was "consolidation."
So I would -- unless somebody objects, I'm amending this to say
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"consolidation" not "salvation."
MS. KLEIN: We would agree with that, Your Honor.
MR. PATTERSON: Same here, Your Honor.
MR. PETERS: Yes.
THE COURT: Is this copy -- I've got the official
version we're going to use for exhibit?
MS. KLEIN: Your Honor, these are -- I understand
this to be the final copy. But, again, as I mentioned earlier,
the witnesses didn't have a chance to, for example, review and
sign, and it was a little rushed.
THE COURT: Understood. That's the only one I've
seen so far that I thought was a substantive issue.
So we will use these. So we have a day of arguments,
and then we will be -- today is Tuesday. Are the copies out to
the witnesses now for review?
MS. KLEIN: I believe at least some of them have been
sent out. I would have to double check that, but I'm aware
that maybe some of them may have been sent out for review.
THE COURT: All right. I'm going to say the official
record of the testimony is the videotape itself, and the
transcripts are -- how does that instruction go? To the extent
the written transcript is inconsistent with the video
testimony, the video testimony controls. All right. You may
continue.
(At 10:10 a.m, video testimony continued.)
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(At 10:48 a.m, video testimony concluded.)
THE COURT: All right. So where does that leave us
now with respect to Plaintiffs' evidence?
MS. KLEIN: Your Honor, that concludes the
Plaintiffs' evidence, obviously supplemented by the
declarations that have been accepted in the case.
THE COURT: All right. So next will be Dr. Plush?
MR. THOMPSON: Yes, Your Honor, that's correct.
THE COURT: Okay. Let's take a break, and what's his
first name?
MR. THOMPSON: Theodore.
THE COURT: So as we break, I will -- you know, being
in quarantine, you can talk to anybody you can talk to since
nobody else is in the office with you. I had a very nice time
at the birthday party last night. I thought it was a little
strange yesterday when I was talking about that that I so
hastily said "it's not my wife's birthday." I thought that
sounded kind of weird of when I said that. My brain was
obviously trying to tell me something, because I walked into
the house, and the bad news was that my wife said, "Hey,
today's our anniversary." The good news was that she said, "I
forgot." Thank God. Because I did, too. We had a nice time
anyway.
All right. We'll be in recess for 10 minutes.
(At 10:50 a.m., break taken.)
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(At 11:05 a.m., break concluded.)
THE COURT: Who is going to be playing Dr. Plush?
Will you all be handling the video?
MS. MOSS: Yes, Your Honor. Unfortunately, the
binder isn't big enough for this, but I have his transcript.
THE COURT: Just lay it right there on that yellow
tape.
(At 11:05 a.m., video testimony begins.)
THE COURT: Let me get you to hit pause for just a
second.
(At 11:07 a.m., video testimony paused.)
THE COURT: Ms. Riggs, I hate to do it to you. I
think you like wearing a mask as much as I do. But in the
gallery, because we have to clean it if you don't keep your
mask on, if you'll keep it on back there. Thank you.
(At 11:07 a.m, video testimony continued.)
(At 12:17 a.m., video testimony paused.)
THE COURT: Hold on. Back that up. I think what he
said was -- it was real quick, but it was "I believe we should
be resolved in favor of the area of prevention." Do you all
want to listen to that sentence again?
(Video played back.)
THE COURT: Didn't he say "in favor of prevention"?
You want to play it one more time?
MR. PETERS: I think it was "in favor of prevention."
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MS. MOSS: I understood him to say "in favor of
prevention within reason."
THE COURT: You want to hear it again? I think it
was "in favor of prevention."
MS. KLEIN: I would like to hear it one more time.
(Video played back.)
MS. KLEIN: Yes, Your Honor.
THE COURT: I think it's "in favor." I think "we
should be resolved in favor of prevention," not "the area of
prevention." All right. You may continue.
(At 1:02 p.m, video testimony concluded.)
THE COURT: All right. Then we'll come back, and the
last evidence will be Bell's testimony? All right. I need a
few extra minutes. What do we have, 2 1/2 hours? Is that what
you all allocated?
MR. PETERS: Yes, Your Honor.
THE COURT: Okay. I like nice round numbers like
coming back at 2:30, but I can come back a little early if you
want to start. We'll just shoot -- let's say 2:20. We'll be
in recess.
(At 1:03 p.m., break taken.)
(At 2:20 p.m., break concluded.)
THE COURT: Mr. Peters, did you have something you
want to say?
MR. PETERS: I'll put it this way, Your Honor. I've
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been waiting for the courtroom to reopen to get some exhibits
in order that I had held off numbering until I saw what
happened this morning. So I can either move about to hand up
exhibits, or if you want to give me about three minutes, I can
mark them real fast.
THE COURT: Take your three minutes.
MR. PETERS: I figured that would be easier.
MR. THOMPSON: Your Honor, while we have a moment,
may I raise a housekeeping matter?
THE COURT: You may.
MR. THOMPSON: Just want to make sure that for
tomorrow, is the lineup 2 hours for Plaintiffs, 2 1/2 hours for
us and the State Defendants, Executive Defendants, and then 30
minutes of rebuttal?
THE COURT: Are you sure you can't do it in an hour?
Is that what you all agreed to?
MS. KLEIN: I think it's what the Court in one of the
earlier status conferences indicated might be allowed.
THE COURT: I think you all might have browbeat me
into that. I'm not taking the full credit for that. If that's
what I agreed to do, then that's what it will be. So it's
2 1/2 total?
MR. THOMPSON: Yes, Your Honor.
THE COURT: So 2 hours, 2 1/2, with that 2 1/2 hours
split between argument and rebuttal.
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MR. THOMPSON: Yes, Your Honor.
THE COURT: So 4 1/2 hours tomorrow total.
MR. THOMPSON: Well, I guess that's 5, because
they'll kick off with 2, then we'll go 2 1/2, and then the
other 30 minutes in rebuttal.
THE COURT: All right. Got it.
MR. THOMPSON: And if it were possible to start at
nine, we would take it as a kindness, just I have a flight that
I would like to catch, if possible.
THE COURT: 9:00 will be fine with me if everybody
agrees.
MS. KLEIN: And we'll be addressing the Court's
specific questions just right off during that time in our
initial oral argument, or do you want us to loop that into our
oral argument?
THE COURT: Nope, I think it would be most helpful to
me if you just bang, bang, bang, bang, give your answers. I
won't even ask a question while you answer. I'll just let you
run.
MS. KLEIN: Okay, understood. Thank you, Your Honor.
THE COURT: Let me ask about this witness. So we've
got 2 1/2 hours of testimony total --
MR. THOMPSON: Yes, Your Honor.
THE COURT: -- with Ms. Bell? And is -- how is it
divided? Who's calling her? Who's direct?
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MR. PETERS: I will be calling her, and I believe the
arrangement we have is that I have 45 minutes of direct and
redirect, that the Legislative Defendants have 30 minutes, and
the Plaintiffs have an hour and 15 minutes so that it balances
out.
THE COURT: Who's timing? Is that my job?
MR. THOMPSON: We're happy to keep the time, Your
Honor.
MS. MOSS: Did you want to go before me? I can say
I'm doubtful that I will have very many questions; and if I go
after the plaintiffs, there'll likely be fewer. But I'm happy
to go in whatever order the Court and the plaintiffs want.
THE COURT: Why don't you all talk about it.
Ms. Welch, did you bring your phone? Have you got a timer on
that phone?
THE CLERK: Yes.
THE COURT: I'm going to add to your courtroom
responsibility.
MS. RIGGS: Your Honor, may I go over there?
THE COURT: So it's -- so we have 45, 45. What were
those numbers again? Is any of the 45 -- well, it will be just
you. Is any of the 45 minutes subject to being reserved for
redirect examination?
MR. PETERS: Yes, Your Honor.
THE COURT: All right.
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MR. THOMPSON: Thank you. I apologize.
THE COURT: That's all right. All right. So what's
the order?
MR. THOMPSON: Well, Your Honor, the order is going
to be that Mr. Peters will do the direct, and then we will do a
short cross at that point. Then there will be a long cross.
And because we're not really sure if the witness -- whether --
you know, if there's a need to cross her, we were going to keep
a little bit of time back if we need to do a follow-up, if
that's okay, and then she'll do the redirect.
THE COURT: Okay. That's good. So it will be 45
minutes total, 30 minutes total, an hour and 15 total?
MR. THOMPSON: Yes, Your Honor.
THE COURT: All right. Ms. Welch has the timepiece.
If anybody wants to time -- have a backup timer, you're
certainly welcome to do that. I'm going to try to hold you to
it. But a minute or two either way, I'm not going to worry
about too much.
The -- I've told Ms. Welch just to yell out at the
5-minute mark. So hopefully -- the reality with timing, having
condition some swim meets and some other things, it's
occasionally difficult not to get caught up in what happens and
forget and that kind of thing. If that does, it does. The
parties will have to live with it, but we'll do the best we can
to give you a five minute alert when the time comes.
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Bell - Direct
All right. Mr. Peters, you may call your witness.
MR. PETERS: Thank you, Your Honor. The State calls
Karen Brinson Bell.
THE COURT: Ms. Bell, if you will step over right in
front of that podium; and once you step inside, unless there's
a reason to keep it on, I'll ask you to take it off.
(Witness affirmed by the Court.)
THE COURT: All right. You may take the witness
stand. You may proceed.
MR. PETERS: Thank you, Your Honor.
KAREN BRINSON BELL,
DEFENDANTS' WITNESS, SWORN AT 2:30 p.m.
DIRECT EXAMINATION
BY MR. PETERS:
Q
Could you state your name for the record, please.
A
Yes, Karen Brinson Bell.
Q
And what is your occupation, Ms. Bell?
A
I'm the Executive Director of the North Carolina State
Board of Elections.
Q
And I'm going to ask you to look at the stack of papers
there on the podium, and do you see what has been marked as
Exhibit 1?
A
Yes.
Q
And can you identify what that document is?
A
It's the declaration I provided to the Court.
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Bell - Direct
Q
Okay. So you have provided that declaration, but could
you briefly describe for the Court what your responsibilities
are as Executive Director of the State Board of Elections?
A
I'm the State's chief election official, which means that
I'm responsible for the election administration in our state as
well as campaign finance compliance and reporting. I directly
oversee the 100 county boards of election in our state and the
operations of all elections, federal down to the most local
level for our state.
Q
Okay. And what do you understand to be the interest of
the State Board and, by extension, your interest as the
Executive Director and the chief elections official in
administering elections in North Carolina?
A
Our fundamental responsibility is to ensure that any
eligible voter may do so in our state.
Q
All right. In addition to your experience as Executive
Director, do you have other experience as an elections
administrator?
A
Yes, I've worked in elections administration for 14 years.
Q
And what experience other than Executive Director do you
have?
A
From 2006 until 2011, I worked for the State Board of
Elections as a district election technician with the 12
westernmost counties of North Carolina. After that, I was a
County Elections Director in Transylvania County for four
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Bell - Direct
years. Then I worked for a software company dealing with
elections. I also was a consultant at a national level dealing
with rank choice voting and our experience administering
instant runoff voting in North Carolina, and I've also been a
precinct chief judge.
Q
Okay. What does being a precinct chief judge involve?
A
That means I'm the top -- I was the top official in
March 2016 for a precinct in Buncombe County, North Carolina.
So I was responsible for the election administration for that
precinct on that election day.
Q
So does that mean that you have acted in some capacity
administering elections at the precinct level, at the county
level, and now at the state level?
A
Yes, sir.
Q
Okay. We'll go through this in a little bit more detail;
but just for a background framework as we start, could you tell
us what some of the big picture statutory and administrative
deadlines that you and the Board are working with to prepare
for the November 3 general election?
A
So beyond November 3, we have to be prepared to start
early voting, one-stop early voting, on October the 15th. We
have to be prepared to train all the officials that are needed
for that in-person voting before we start one-stop or election
day. We also have September 4 as a deadline to administer
absentee-by-mail. That's our deadline for that to start.
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Q
All right. What about with regard to one-stop early
voting plans?
A
Yes. So the county boards are currently developing those
plans. I issued an emergency order on Friday that extended
that deadline from July 31 to August the 7th, and the State
Board is going to consider the nonunanimous plans on August the
31st.
Q
And I'll ask you to look in your stack there at what has
been marked as Exhibit 2.
A
Okay.
Q
Is that the emergency order you just referred to?
A
It is.
Q
And that was issued on Friday?
A
Yes.
Q
All right. We'll come back to that. You mentioned
absentee voting starts on September 4. What needs to happen in
order for absentee-by-mail voting to start on September 4?
A
There's considerable preparation that goes into
absentee-by-mail. We have to have all the absentee-by-mail
container envelopes prepared, the design for that, and the
printing of those envelopes, the printing of the
absentee-by-mail instructions that will go out with the
packets. Obviously, we're processing absentee-by-mail request
forms currently, and those will be -- based upon the number of
forms that have been received, the counties will assemble those
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packets and make sure that they're out the door by the deadline
of September 4.
Q
All right. And what is involved in planning and preparing
the container envelopes for absentee ballots?
A
We have undergone a redesign of the envelope, and then
with the legislative changes we've made further changes to the
design of the envelope. We do have to -- we also work with the
Postal Service to make sure that we're in compliance with the
Postal Service standards for election mail and also the
components of intelligent mail barcoding which we're
introducing this election. Then from there the counties will
coordinate to have those printed. We may also help with the
printing, but we have to get in queue with the print houses to
have those ballot envelope -- container envelopes printed.
We'll also be printing ballots themselves once the nominations
are official.
Q
You mentioned smart mail barcoding. What is that?
A
Intelligent mail barcoding is going to be applied on a
label on the front of the materials that gets sent out as well
as what gets returned on the absentee container envelope, and
that will allow the voters to track where their ballot is in
the system. We've had the ability for voters to know where it
is in the elections office, but this will be the first time
that they've been able to actually track it in the postal
system.
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Q
Okay. And you also mentioned that you had undertaken a
redesign of the container envelopes. Why did you do that?
A
If I had the old envelope to show, you would see a
considerable difference. It was very small print. It was
very -- we were finding that voters were not completing it
thoroughly, and so we worked with the Center for Civic Design
who has done usability studies about forms and documents
related to elections, and they helped us to design a more
user-friendly envelope so that the voters will better
understand and execute their ballot.
Q
And in terms of getting those envelopes printed and so
forth, where are you in that process?
A
We have -- the Postal Service had a change that they
wanted to make, so we are -- that actually is probably done
while I've been here today, and so then those counties will
have their templates. They've been in contact with printers.
We know we're on about a four-week schedule, at best, for them
to be able to turn around the envelopes, particularly with the
increased volume that we're -- we already have in absentee
requests.
Q
All right. Turning to the issue of COVID-19, which, of
course, this litigation is about -- let me ask you first. Have
you ever administered an election during a global pandemic?
A
Technically, yes, June 23.
Q
And what election was that?
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A
That was the second primary in the 11th Congressional
District Republican runoff, second primary essentially, and
then there was a new election called in the Columbus County
District 2 Republican primary.
Q
Okay. What -- in your experience both with that election
and in planning for the general election in 2020, what are you
finding -- what ways are you finding that COVID-19 has an
impact on election administration?
A
In addition to all the preparatory work that we would
normally be doing, we now have to consider public health and
social distancing, facilities that will allow for social
distancing, protective gear for both the voters and our poll
workers, securing poll workers when many of them are in the
vulnerable population, and also trying to navigate all of this
during supply chain issues that also come up because of the
protective gear.
Q
Are there any -- other than what you've just mentioned,
are there any particular impacts you have either seen or expect
for in-person election on voting day?
A
We certainly have seen an increase in absentee-by-mail
requests. Typically, we would see about a 4 to 5 percent
participation in absentee-by-mail, and right now we're tracking
from, you know -- it at least appears that we'll have
20 percent, but we're planning for up to 40 percent
participation by mail.
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Q
Okay. What about the effect on either -- of any kind of
in-person voting on election day or early voting? What does
that require you to take into account?
A
Certainly, our facilities have to be able to allow for
social distancing. We have to consider whether the voting
booths, the check-in stations, where the voters will wait, if
those can be properly socially distanced. We've seen in other
states that potentially we could have poll workers not show up.
So we're having to account for that. We could potentially have
polling places that have to be closed. And any of these things
account for issues with lines, and, therefore, voters could be
standing in line and be exposed to, you know, coronavirus and
not have, you know, that ability to go elsewhere.
Q
Okay. And does that have an effect on the planning for
polling places?
A
It certainly does. We had to account for that with the
June 23 second primary and those facilities, and we're doing so
now, and part of the reason for the emergency order was to
account for one-stop early voting sites.
Q
All right. Let me ask you. Other than the emergency
order, have you or the State Board taken any action to try to
address the challenges that COVID-19 presents?
A
We've taken many actions. Even back in March -- well, we
learned the first case in North Carolina was on the March 3
primary, so that -- we were already looking at hand sanitizers
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and things like that because we didn't know what coronavirus
meant at that point. But since then we have had a task force.
I've issued an emergency order pertaining to the second primary
and to the closure of offices and to how we do our precinct
sorts and things of that nature because everything changed.
We had to start doing county board meetings in a
telephonic or some sort of teleconference format. We had to
limit the number of people who could come into the office and
sometimes limit whether the offices could even be opened, so I
issued also -- knowing that there was going to be a special
session in the legislature, I issued recommendations to them,
15 items that we thought would help us to administer the second
primary and also the November election.
We have formed a task force, if I didn't mention
that. We have also worked with our state emergency management
regarding the PPE. We've done the redesign of the absentee
envelope in regards to COVID-19. We've been holding routine
meetings, and I've talked with the counties about the steps
they'll need to take in selecting their one-stop sites and how
we plan to address precinct mergers as well. I think I may
have covered everything.
Q
Okay. Let me ask you to look in the stack you've got of
what, because I was moving quickly and things got out of order,
has been marked as Exhibit No. 6. It says at the top,
"Numbered Memo 2020-11."
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A
Yes.
Q
Can you identify what that document is?
A
Yes. So we issued this numbered memo once we knew, you
know, the governor and the president had called states of
emergency and natural disaster and so forth. This was to help
the counties be prepared to deal with their public meetings, to
deal with their canvass issues, because we had not completely
wrapped up the primary that was held on March the 3rd, just how
they would be able to operate their offices and how they would
deal with petitions and voter registration forms that would be
dropped off if they were to be closed or could not be open to
the public.
Q
All right. And you mentioned writing to the governor and
the legislature. Let me ask you to look at Exhibit Number -- I
think this one will be three.
A
Yes.
Q
Is that the letter that you mentioned writing?
A
Yes, this was the memo that we sent with our 15
recommendations.
Q
All right. Let me ask you to look on page 3 of that.
A
Okay.
Q
And do you see a heading that says "reduce or eliminate
the witness requirement"?
A
Yes.
Q
Is there a reason that you said "reduce or eliminate"?
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A
Yes. We had recognized that North Carolina up until, you
know -- at this point in time North Carolina required two
witnesses to an absentee envelope; and because of coronavirus,
we knew that would extend the exposure that someone would have,
particularly because we know that more than 70 percent of our
voters live in a one- or two-person household. So we made the
recommendation to either reduce or to eliminate with the
consideration that if they chose to eliminate that we were in a
position to consider signature verification.
Q
And what is signature verification?
A
So states generally -- there's one or two methods that
states go about. They can either have a witness, or they'll do
a signature verification to verify who the voter is in an
absentee-by-mail, similar to the way when someone votes in
person, they would state their name and address to an election
official, thereby that election official is essentially
witnessing their presence, and there's the opportunity for a
challenge. When you administer absentee-by-mail either by
witness or by signature verification, you're verifying that
individual.
Q
And you said we would have been in a position to utilize
signature verification if the General Assembly had eliminated
the witness requirement?
A
Yes, we were -- I'm aware -- we were aware at that time
that there is software that does signature checking or
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signature matching that can help with that process and is used
by most states that use signature verification.
Q
If the witness requirement were eliminated now, would you
be in a position to utilize signature verification?
A
No, we would be hard -- I don't think we could do it at
all. We don't have an exemption from the procurement process
at this point. We would not have time to properly train or
implement that system, and I would have to even inquire whether
there is a vendor who could meet the deadline because so many
other states are going through these processes as well to
address COVID-19.
Q
Okay. Let me ask you to look at what's been marked as
Exhibit No. 4, and is that one of the numbered memos you listed
earlier in the list of things you had done?
A
Yes, this is one of the numbered memos. We did this for
the June 23 second primary and election.
Q
All right. And then No. 5, Exhibit No. 5, is that also
one of the numbered memos you have issued?
A
Yes, this one is the direction we gave to all 100 counties
pertaining to their one-stop plans for this upcoming election.
Q
Okay. Can you tell us just a little bit about the
Judicial Voter Guide and how that will be utilized with
particular reference to COVID-19 this election?
A
Right. We would do -- we still have the funds available
to do a Judicial Voter Guide. So in addition to covering the
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judicial races, we'll be doing some voter education about not
only absentee-by-mail, but the steps we're taking with
in-person voting during the pandemic. We'll also include an
absentee-by-mail request form. It will be in the centerfold
for the voter to complete and return to the county board of
elections.
Q
And that is -- am I correct that that's sent to every
household in the state?
A
That's right, every household.
Q
All right. What are you doing with regard to recruiting
poll workers across the state?
A
About a month ago, we launched the Democracy Heroes
Campaign. That's our effort to -- at that point in time it was
to put an interest survey up on our website. We're promoting
that through press releases. So the media is asked and covered
that; we've done it through social media; and we are extending
that working with civic organizations, veterans groups, the
university system as a means to recruit individuals who would
be interested in serving for this election.
Q
All right. Let me just ask one question. With regard to
numbered memo 2020-13, did it have any recommendations in it
regarding how many days the one-stop locations should be
opened?
A
Yes, I "strongly encouraged," I think those are my exact
words in that memo, that they utilize all 17 days of the early
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voting period.
Q
All right. Now, let me go to a couple of specific matters
that are at issue in this case. Can you describe briefly what
is the process in getting and voting an absentee ballot?
A
So the voter can go online and print off a request form.
They can call and have one mailed to them, or they can, you
know, complete the form and mail it in themselves, fax or email
as well, but they do need to complete the state-issued absentee
request form. Once we receive that, it's processed in our
system. Currently, we can't mail the -- we can't fulfill the
request, but we will by September 4 once we have the ballots
printed. We -- did you just want to know the request part or
the entire process?
Q
If you want to run through the whole thing, just the quick
overview of it.
A
Yes. That request could also be made by their legal
guardian or near relative, I should point that out, and they
can drop it off in person before we complete the process.
So then they'll receive their packet. It gives them
instruction on having a witness present. When they do mark
their ballot, they'll sign, the witness will sign. They can
have assistance with that process, and that's notated. They
then mark their ballot, put that in the envelope, and then they
return it to us either by mail or by dropping it off at the
county board of elections or at the one-stop sites during that
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one-stop period.
Q
And are there restrictions upon who can make the request
on behalf of the voter, is that correct?
A
That's correct. It's only the voter or their near
relative or legal guardian.
Q
And are there restrictions with regard to who can deliver
the ballot on behalf of the voter?
A
It's the same individuals.
Q
Okay. Are there any restriction on who can assist the
voter with any other aspect?
A
When they're marking their ballot, they can be assisted,
but it can't be a candidate, for example, unless that's the
near relative. There's also restrictions if they're in a care
facility. It cannot be someone who is employed by that care
facility.
Q
Are those the only two restrictions on who can assist in
completing the ballot?
A
Yes.
Q
Okay. And how can a voter obtain the absentee ballot
request form?
A
It's available on our website. They can call the Board
office and have one sent to them. It's also -- we do not
restrict others from making copies of blank ballots -- or
excuse me -- ballot request forms and providing that to them,
but they do have to be blank, and they do have to be the
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State-issued form. And then we are currently in development on
an absentee portal that will be launched before September 1 or
by September 1 to allow them to complete that electronically.
That was authorized by the legislation in one of my
recommendations.
Q
All right. And how can the completed form be returned?
A
That can be faxed; emailed; if it's through the portal, it
will be electronically returned; or they can deliver it in
person or through the mail.
Q
All right. Let me ask you, are you familiar with what
happened in Congressional District 9 in the 2018 election?
A
I'm familiar. I was not Executive Director at the time,
but I'm familiar.
Q
What is your understanding of what happened?
A
A gentleman by the name of McCrae Dowless was hired by one
of the candidates in the Congressional District 9. He was
hired by the Republican candidate to essentially -- I mean, he
organized a group of individuals who went out and collected and
the voter -- excuse me -- absentee request forms. In some
cases they processed those or sent those in fraudulently. Then
with the ballots, once those folks received it, they were
witnessing, sometimes improperly, not in the presence,
sometimes the voter didn't know that it was being done, and it
was -- you know, they were being paid to do all of this.
Q
All right. And that was uncovered when?
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A
The State Board of Elections uncovered that. It was
during the State Board's canvass meeting that it was first
revealed, and then it was investigated.
Q
And canvass is what?
A
That's the certification period. There's a county canvass
and then the State Board does the final certification.
Q
Okay. Does the term "ballot harvesting" mean anything to
you as an election administrator?
A
Yes.
Q
What -- go ahead.
A
I'm sorry. So, yes, ballot harvesting -- well, in --
that's actually the phrase that we use in terms of what McCrae
Dowless was doing. He was ballot harvesting, but the issue was
he was ballot harvesting fraud. That's the issue.
Ballot harvesting, you know, is permitted, at that
point in time especially, meaning that organizations can help
voters. But he was fraudulently doing it by having people
witness who were not really witnessing by, you know, sending
them without the voter's knowledge or manipulating the process.
Q
And in contrast to ballot harvesting, what do you
understand to be voter fraud?
A
So voter fraud is typically more about when someone's
impersonating another, when a voter presents themselves or
tries to double vote or something -- presents themselves as
another or tries to double vote as themselves or another.
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Q
All right. So what happened in 2018 Congressional
District 9, if I understand you correctly, was ballot
harvesting rather than voter fraud?
A
Yes. Yes, sir.
Q
Okay. Has the Board -- State Board ever done any other
investigation into the incidence about harvesting in North
Carolina?
A
In 2017, the prior Executive Director ordered an audit.
It stemmed from some, you know, concerns that had arisen in the
2016 election due to a number of protests and things. The
audit was looking for, you know, any irregularities,
particularly, you know, determining if data illustrated, and
then there was some investigations conducted based upon that
audit.
Q
All right. And was an audit -- a report issued of that
audit?
A
There was a report issued.
Q
And is that a publicly available report?
A
It is.
Q
Have you done any investigation -- has the State Board
done any investigations into the incidence of other types of
voter fraud like double voting or voter impersonation?
A
When we receive a complaint, we consider, you know, the
merits of the situation, and our Investigations Division looks
into those situations. And I know of some circumstances from
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that audit and so forth that have occurred because of
complaints or data they received.
Q
And in the course of doing those investigations, has the
State Board found any evidence of widespread voter fraud -- in
terms of double voting or voter impersonation?
A
No, it's -- actually, nationwide, it's very, very minimal.
I believe in that particular situation, there were over
4 million voters, and the two cases of voter fraud were two
individuals.
Q
All right. I want to move to uniform hours requirement
for early voting. You stated earlier that early voting starts
on October 15?
A
That's right, Thursday, the 15th.
Q
And what needs to happen before early voting can start on
October 15?
A
The counties procure the sites; and in some ways, because
of COVID-19, they're actually looking for new facilities,
because previous facilities wouldn't be large enough to
accommodate social distancing and the spacing that's needed,
both while the voter stands in line or while they're voting.
So in some cases they're leasing commercial spaces, or they are
working with government entities or, you know, community groups
that might allow for the use of their buildings to make sure
there's no conflict and to also promote that to the public.
So mid-September, we will put out a notice of these
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sites. They will -- you know, once they identify the number of
sites, that will be how they determine how many workers they
need. Workers, because of the number of hours, generally work
in shifts, so you'll have more than one team assigned to each
site. That's also important during COVID-19 because if one
team were to have an illness due to somebody contracting
coronavirus, then we would have a backup team to come in.
They'll have to train those individuals. They'll have to
prepare all the laptops for the check-in process. They'll have
to, you know, go through, you know, just -- I mean, those are
the basic procedures and prepare for curbside voting during
that period, too.
Q
What is curbside voting?
A
That's when an individual who can't enter the polling
place due to age or disability is allowed to vote from their
car, and a precinct official or one-stop official basically
serves as their feet to and from the polling place.
Q
And you mentioned letting people know where the early
voting sites are, I think you said in mid-September, is that a
statutory deadline?
A
Yes, we're required to give notice 45 days before one-stop
begins.
Q
You've mentioned an emergency order a few times. Why did
you issue that emergency order?
A
Are you meaning the one on Friday?
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Q
Yes.
A
Okay. So in looking at the one-stop period, we -- not
only had I stressed in a previous memo that we wanted to
utilize all 17 days, the rationale behind that and then the
rationale behind the emergency order is because we have seen in
other states that if you don't have adequate spaces, if you
don't have adequate hours and opportunity, that -- you know,
and spread those opportunities, then you wind up with lines,
you wind up with closures, you wind up with people being
exposed for extended periods of time.
And so what I knew that had to be done is we're
reaching that point where, you know, if a county is going to be
able to procure a site, if they need additional sites, they
needed to know through that emergency order that we had
determined that they should have additional hours -- or minimum
is what we said -- a minimum number of hours on the weekends,
the two full weekends. The final weekend is already set by
law. That's Saturday, eight to three. But for those first two
weekends, we wanted a minimum of 10 hours for each of the sites
to be opened.
We also looked at data from previous elections and
realized the number of people who were turning out and the
median of that and then looked at the number of people who had
voted on single days, and many sites, large counties/small
counties, were having people more than 1,000, more than 1,500,
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more than 2,000 show up on a single day. And so we knew if we
didn't determine a certain ratio for them to open enough sites
that we would be risking lines.
So that was the purpose of the emergency order.
Q
I believe you mentioned in your declaration that you were
working on a process by which county boards could cure problems
with absentee ballot requests and absentee ballots. Do I
recall that correctly?
A
Yes, that's one of the items of data that we're working on
right now.
Q
So you're still working on that right now?
A
Right. We haven't issued that, but we're drafting it.
Q
What are your plans with regard to that guidance? I mean,
not necessarily the specifics of it, but in terms of relaying
it to the counties and that sort of thing.
A
The counties would already have a practice that if
someone's request form wasn't complete or if their ballot
wasn't complete, the staff reviews these before they put them
before the board, but the board has an obligation, too, to
approve them if completed properly. But they would reach out
to voters, but this will be very specific to ensure uniformity
across all 100 counties that be it the request form or be it
the actual ballot returned document that if they are not
completed properly that there will be a uniform cure.
Q
All right. And would I be correct in assuming that you
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intend to have that guidance ready in time for counties to be
able to train all their election workers on how to implement
it?
A
Yes. That guidance pertains primarily to the full-time
staff that you would see in the elections office or the
temporary staff that they would have. Like I said, it's --
I've seen some degree of a draft. We've met and talked about
it. It's just not issued yet, but it will be very shortly.
MR. PETERS: I believe that's all the questions I
have at this point. Thank you.
THE COURT: All right. Ms. Welch, did you turn the
clock off?
THE CLERK: Yes, sir.
THE COURT: How much time has he got left?
THE CLERK: 10 minutes, 23 seconds.
THE COURT: All right.
THE WITNESS: Is there anyway I can get some water?
I know we're in strange times for --
THE COURT: I'll tell you what we'll do. I left a
couple of things upstairs, so why don't we take five minutes,
and you can step down. There's water on each of the counsel
tables. I'm sure Mr. Peters will be happy to you -- have you
got water?
MR. PETERS: We have cups --
THE WITNESS: There's a water fountain outside.
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MR. PETERS: I have a bottled water that I think has
not been opened yet.
THE WITNESS: Okay. Thank you.
THE COURT: I lied to you. I'll tell you what.
There's some small bottles of water in the fridge. We'll put
six -- we'll get six of them and put them out on everybody's
table. We'll be at ease for five minutes.
(At 3:05 p.m., break taken.)
(At 3:13 p.m., break concluded.)
THE COURT: Ms. Moss?
MS. MOSS: Yes, sir.
DIRECT EXAMINATION
BY MS. MOSS:
Q
Good afternoon, Director Bell. My name is Nicole Moss.
I'm one of the attorneys representing the Legislative
Defendants. You may recall we met last year when I took your
typings?
A
I do.
Q
It's good to see you again. I have just a few quick
questions. It won't be that long.
In terms of your projections of the number of
absentee ballots by mail that you're going to get this year,
you originally thought it would be 30 or 40 percent. Am I
recalling that correctly?
A
That's correct.
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Q
What is your current estimation of the number of
absentee-by-mail ballots you expect to get?
A
We're still working on that number if for no other reason
but to be sufficiently prepared, but we're now -- we're
figuring that it will be anywhere from 20 percent might be the
low to 30 percent. Probably going to be tracking for about
30 percent participation by mail.
Q
And in terms of planning for the various polling sites for
early voting, are there reasons other than poll worker shortage
that may cause a county to not use a site that it's used in
past years?
A
Yes. We -- this happened in the June 23 primary, for
example. There are some facilities that are so small. I think
of one in Madison County that is about 150 square feet, so that
doesn't allow for social distancing of the precinct officials,
much less of the voters and the voting booths. It also does
not have running water which we find in some of our more rural
locations.
Q
Were there polling sites that have been traditionally used
for early voting that are located in or near nursing
facilities?
A
Generally, our early voting sites are not in care
facilities or retirement communities, but you might find that
for an election day site.
Q
And you're aware that one of the requirements that is
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being challenged in this case is what's known as the uniform
hours requirement. Are you familiar with that --
A
Yes, I am.
Q
-- challenge? In your emergency order that you discussed
with Mr. Peters, did you make any provisions that would
allow -- or require, I should say -- counties to offer certain
number of early voting sites?
A
State your question again, please.
Q
Sure. Did your emergency order have any requirements for
counties to offer a certain number of early voting sites?
A
We did instruct them that we wanted there to be -- if a
county had fewer than 20,000 registered voters, then they could
have simply one site, but that one site should have an
alternate in case that facility had to be shut down. We wanted
to know that there was a backup staffing and backup site in
that circumstance.
For counties above 20,000 for, you know, even if
they're 21,000 registered voters, that would then say they
would have two sites for each 20,000 registered voters or
portion of. They can request a waiver if they can demonstrate
that there's adequate social distancing, that they can reduce
the wait time, and things of that nature.
Q
Just to make sure I understand. It's one site per 20,000
registered voters, unless they get an exception?
A
Or portion of, so, yes. If a county has 21,000 registered
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voters, we still suggest -- you know, ordering that they would
have two sites or request a waiver.
Q
When you review the one-stop plans that the counties, I
guess, now have to submit by August 7, does the number of sites
that they offer come into consideration in determining whether
to approve the plan or not?
A
The -- if a county board is unanimous and is complying
with the emergency order, then that would move forward. There
would be no reason to not allow for that. If they are
nonunanimous, then that goes before the state board.
Q
And when it goes before the state board, do you take into
account -- or will you consider the number of hours that are
being made available to voters to go to the early voting sites
in that county?
A
That has traditionally been one of the factors.
Q
Is one of the factors the number of sites that will be
made available for voters?
A
They do consider that as well.
Q
And can the state board not approve a plan if it doesn't
believe either of those things is sufficient?
A
They have sort of -- in the past, they have at times
issued their own plan, not choosing the minority or majority
plan if they felt like there was -- if neither plan provided
for the factors that they were considering or the quality of
cites that they felt like were needed in the counties.
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Q
One last area I want to talk to you about, and that's the
assistance that may be provided to individuals in nursing
facilities or other similar congregate care facilities and
filling out their absentee ballots. I believe you told
Mr. Peters that there are restrictions on who can assist a
resident, for example, in nursing facilities, is that right?
A
Yes.
Q
And are you aware of why the restriction is in place to
prevent staff from assisting residents of nursing facilities
from filling out absentee ballots?
A
Though I didn't write the statute that prohibits it, my,
you know, understanding is that it's to ensure there's not, you
know, any nefarious acts towards that voter by the care
facility person, you know, either mismarking their ballot or
misrepresenting that ballot.
Q
Is there a concern that the staff may be able to exercise
undue influence over the residents?
A
Again, I didn't write the statute, but that could be part
of the reasoning.
THE COURT: All right. Let's turn the clocks off.
All right. So at present, as you're aware, nursing
facilities are on lockdown.
THE WITNESS: Yes, sir.
THE COURT: Limited entrance and exit.
THE WITNESS: Or no entrance or exit.
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THE COURT: Or no entrance or exit. So a nursing --
when we're talking about nursing care facilities, we're not
talking about independent living retirement homes exclusively.
We're talking about nursing facilities, and in my mind those
are two different things. Is that your understanding as well?
THE WITNESS: They could be variations of those. It
could be a hospital, a Hospice center, a rehab center.
THE COURT: Okay. So let's take an extreme example.
A facility where people are in various states of lucidity,
physical ability, physical strength, and other things. So if
that's a locked down facility, walk me through how someone who
wants to do an absentee ballot perhaps requiring assistance is
going to be able to vote, at least in your review of the plan
that's coming to fruition.
THE WITNESS: Right, yeah, and I should have stated
earlier that a Multipartisan Assistance Team can assist. I
simply said the voter or the near relative or legal guardian.
But, yes, so if there's a voter within a facility, there can be
a request made to the county board of elections by the voter by
someone in that facility. That's not a problem if they contact
the county board and say that there's a need for a
Multipartisan Assistance Team to come out. They can help with
the request form and that process, or they can help with
witnessing or assisting the voter in their -- you know, with
their ballot. They --
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THE COURT: Okay, so -- go ahead.
THE WITNESS: No, go ahead with your question. I
might can clarify it.
THE COURT: So I understand that there are these
services available, but how do they get in?
THE WITNESS: I mean, traditionally, they would
just -- you know, they would have coordinated with the care
facility. They would know that they were coming. They
could -- you know, if it's multiple people in the facility,
they could set up in their cafeteria or something like that.
They can go from room to room --
THE COURT: But, I mean, is -- I don't want to press
you too much, but you're the Executive Director and going to be
responsible for this. If the facility is on lockdown, how
does -- how do I get in?
THE WITNESS: No, I totally understand. This was --
it was one of my recommendations. It's the one that's probably
weighed on me the most that I actually issued another memo to
the legislature saying, you know, if you -- the reason I'm
wanting this is because we don't know. If they're not even
allowing family members to go visit someone, how do I send in a
Multipartisan Assistance Team, not expose them, not expose the
residents when we see the outbreaks.
And so what I proposed to the legislature is what is
done in some other states like Indiana where two officials --
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two employees are designated. It's known. It's on record.
They can be of different political parties. They can go
through training, and they work with the county board of
elections to administer. That's the recommendation that I made
to the legislature, but they did not take action to that.
And so now we're working with Health and Human
Services to develop some sort of guidelines to give a report
back to the legislature, but those guidelines have to go into
effect now, you know, or soon by August 1, and it's at a time
when they're even trying to determine, well, can they let those
residents come out in to, say, the courtyard or the front porch
or something like that to visit with their family.
THE COURT: If we go back to a Hospice facility, the
likelihood of somebody being able to get up and walk outside --
THE WITNESS: Is very slim.
THE COURT: -- is very slim.
THE WITNESS: Yeah.
THE COURT: So if -- let's say if I were to enjoin
that statute and say this limitation that's been put in place
that prohibits nursing -- we're going to say employees of the
nursing home.
THE WITNESS: Um-hum.
THE COURT: I get that there can be varying degrees
of concern about undue influence. But if I were to say enjoin
the part of the statute that says the director -- no, excuse
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me -- enjoin the part of the statute that would prohibit an
employee -- we'll leave the prohibition in place as to a
director or assistant director or other levels of the
statute -- what then in the absence of a statute happens in
terms of how those ballots will be administered by the State
Board? Are you going to issue -- would you then have to issue
guidance to the local boards to say this part of the statute's
been enjoined so they can use an employee of the facility to
witness or assist in filling out the ballot? Is that what
would happen then?
THE WITNESS: That's what we would do, and I think at
that point what I envision is if a care facility were not
already identified and have the employee identified or
employees that we could also -- you know, if they contact us,
we could at that point say they need to complete training
before we would issue the materials, but we have training for
our Multipartisan Assistance Teams so we would utilize that
training and just apply it to those employees. Then we could
even go so far as to deliver -- we would still use
Multipartisan Assistance Teams to deliver the materials there,
you know, but we can coordinate that. That is what I was
recommending.
I also just, for your knowledge, will say that not
only did they not go towards the recommendation I made, but
they expanded what the Multipartisan Assistance Teams can do,
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and now we're supposed to provide guidance on how someone,
anyone, can request a Multipartisan Assistance Team, which also
causes us pause, because now if someone requests it, we have to
send them to their home not knowing whether they have
coronavirus, or, you know, if it's -- I mean, candidly, a
domestic violence situation, you know, or someone who still,
you know, is homebound and can't come outside, then I'm sending
those people in as well to someone's home which is even more
limiting in some ways.
THE COURT: So at least in terms of the nursing home
thing, though, there is a little bit of an issue with respect
to -- assuming nothing changes with respect to coronavirus, and
nursing homes or assisted care facilities remain on lockdown in
November, there's going to be a problem if people can't come in
to assist as is contemplated by the statute.
THE WITNESS: Yes, sir. If there's a problem for the
voter, there's a problem in delivering it, there's a problem in
having the people who would even deliver it. I mean, at least
the people who are already working there are taking
precautions. They're already -- you know, they're employees.
They're being tested and things of that nature, and they're
already working in that facility.
But the risk that I have -- I mean, it weighs on me
because I have to consider not only am I exposing that voter,
but I'm exposing those people, and at that point if you were a
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member of a Multipartisan Assistance Team and caught
coronavirus, would you be willing to continue, or would you --
if you heard that one of your teammates had contracted it,
would you be willing to continue? That's a struggle.
THE COURT: Yep, the bad news for you is I get to ask
the questions, you don't.
THE WITNESS: I'm sorry.
THE COURT: That's fine. All right. Start the
timer. You can continue.
MS. MOSS: Your Honor, you asked some of the
questions I was going to ask.
BY MS. MOSS:
Q
Would you agree that if that provision was going to be
stricken, that some regulation should be put in place on how
staff could assist nursing facility residents such as limiting
the number of staff and training them?
A
Yes, that's what I recommended in April to the
legislature.
MS. MOSS: Your Honor, I have one exhibit I would
like to show her, if I may. I apologize now for the printing.
I printed this at the hotel, and it printed back to front and
kind of upside down. Shall I leave that here for the witness?
THE COURT: Yes, that will be fine.
MS. MOSS: Do you want me to take it to her or --
THE COURT: Yeah, just put it up there on the
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bench -- on the witness box. If you need one back, you can
have it.
THE REPORTER: Ms. Moss, could you move your
microphone? I'm having just a tad bit of trouble. If you can
just move it a little more in front of your mouth, please.
Thank you.
MS. MOSS: Yes.
THE COURT: Okay. So let me show you the microphone.
Well, go ahead. So it's best if you can get the microphone so
as you ask the question, you're talking across the microphone,
if that makes any sense to you.
MS. MOSS: It does.
THE COURT: It can be a little bit on the low side.
BY MS. MOSS:
Q
So, Director Bell, if you could turn to page 2 of this
exhibit, which is on the back side of the first page, I'll flip
it over. It's printed upside down. This is -- and I'll
represent to you this is a printout from the website for the
Davis Community, which we understand from filings in this
record is the nursing facility in the Porters Neck area of New
Hanover County where Plaintiff Mr. Hutchins resides.
On their website, they have a section that talks
about that this week Governor Roy Cooper gave approval for
nursing homes in North Carolina to allow for outdoor visits
with nursing home residents provided that certain -- or several
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certain conditions have been met. Is that something -- are you
familiar with the order by Governor Cooper that allows for
outdoor visits at nursing facilities?
A
I'm generally familiar with it, not detailed.
Q
Okay. And I take it -- do you have any familiarity with
what the rules are for each of the nursing facilities in the
state as to whether they're at a point where they can comply
with the governor's lifting the restrictions at this point?
A
I haven't gotten into the details of it, no.
Q
Okay. And this particular printout from the website, it
goes on to say that:
"Unfortunately, these limitations mean that we
cannot yet resume visitations for our residents. As I've been
sharing with you, we are still considered to be in the midst of
an outbreak and can't allow visitors right now. In the
meantime, we are developing visitation policies with plans to
welcome visitors as soon as possible."
I take it you have no specific familiarity with what
the Davis Community is doing currently?
A
No, I don't.
Q
And do you know whether they will, in fact, be open to
allow some form of visitation before November?
A
I don't think we know what any of the facilities are going
to be doing between now and November.
Q
So it's possible they could, it's possible they may not?
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A
That's right.
MS. RIGGS: Objection, calls for speculation.
THE COURT: I'll overrule it.
MS. MOSS: That's all the questions I have. Thank
you.
THE COURT: All right. Cross-examination? Clocks
off. Just a second, we'll get you the time. That was 10:58.
MS. RIGGS: I'm sorry, Your Honor?
THE COURT: That was 10:58, roughly. We'll call it
eleven minutes. If you need the two seconds, you can ask.
All right. You may proceed.
MS. RIGGS: Thank you, Your Honor.
CROSS-EXAMINATION
BY MS. RIGGS:
Q
Good afternoon, Director Bell.
A
Hello.
Q
A central goal of the State Board of Elections and you, as
its Executive Director, is to ensure that all eligible North
Carolinians are able to cast their votes safely in the
November 2020 election, correct?
A
Correct.
Q
In recognition of that goal, you made a series of
recommendations in two separate letters to the legislature
about election law changes that could help protect voters and
poll workers, correct.
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A
Correct.
Q
You also formed a task force to make to help you gather
best practices and advice with respect to COVID-19 election
responses, is that correct?
A
Yes.
Q
No county board of elections member was part of your
COVID-19 task force, is that right?
A
No county board member, correct.
Q
Okay. And that would include the declarants from the
Cumberland and Wake County Board of Elections offered by
Legislative Defendants in this case, correct?
A
If they are board members, they are not members, correct.
Q
It's true, isn't it, that on March 26 and April 22 of this
year, you recommended that the legislature either reduce or
eliminate the requirement for witness signatures for absentee
ballots?
A
Yes, I did.
Q
And you made that recommendation because you wanted voters
to have less exposure to someone outside of their home, is that
right?
A
Yes.
Q
I believe you talked to Mr. Peters about how approximately
70 percent of North Carolina registered voters are within a
one- or two-person household. Did I get that number, correct?
A
Yes, it's 70-some percent.
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Q
Okay. And do you have any reason to dispute the statistic
that 28.42 percent of North Carolina registered voters live in
a single-person household?
A
I don't know that statistic one way or the other.
Q
Okay. And, likewise, you would have no basis to dispute
the statistic that of those 28.42 percent of North Carolina
registered voters who live in a single-person household, that
37.37 percent of those voters are ages 65 or older?
MS. MOSS: Objection, Your Honor. She just testified
she has no basis to know if that statistic is accurate or not.
THE COURT: Do you know that statistic?
THE WITNESS: Not without looking it up, no.
THE COURT: I'll sustain.
BY MS. RIGGS:
Q
And when you made that -- those recommendations to the
legislature, you thought that there would be an eight-week
window in which the pandemic might be brought under control, is
that correct?
A
During that time, yes, we were all talking about an
eight-week window --
Q
Okay.
A
-- as the key time period.
Q
And as of last Friday when you issued your emergency
order, you're aware from the North Carolina Department of
Health and Human Services that North Carolina's daily case
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counts of COVID-19 continue to increase, is that correct?
A
That is my understanding, yes.
Q
And you're aware from DHHS that the percent of COVID-19
tests that are positive remains elevated, is that right?
A
That's my understanding, yes.
Q
And you're aware from DHHS that Emergency Department
visits for COVID-19-like illnesses are increasing, is that
right?
A
That's right, that's my understanding.
Q
And, likewise, from DHHS, you're aware that
hospitalizations for COVID-19 are increasing, correct?
A
That's correct.
Q
And since you issued those recommendations on March 26 and
April 22, you've become aware from the North Carolina
Department of Health and Human Services of evidence that
suggests the probability that COVID-19 transmission indoors is
approximately 18.7 times higher than in open air environments,
is that right?
A
I've been advised, yes, that's an issue.
Q
And all in-person voting is conducted indoors, correct?
A
Well, actually during the second primary, we had one
county that conducted it outdoors. But, generally, yes
in-person voting is conducted indoors except for the curbside
voting.
Q
Is that the only example of a polling place that wasn't
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indoors that you're aware of?
A
That I'm aware of, yes.
Q
Okay. You stated publicly that it's critical that voters
are able to exercise their constitutional right to vote without
undue risk, correct?
A
Yes.
Q
And you're aware from researchers -- you're aware that
researchers from Wisconsin found a statistically and
economically significant association between in-person voting
and the spread of COVID-19 two to three weeks after the
election, is that correct?
A
That's my understanding, yes.
Q
You testified in deposition months after you made these
recommendations that, and I quote, we do not have strong mask
compliance. Isn't that correct?
A
I don't recall saying that specifically. In what regard?
Are we talking about voters or --
Q
Would it --
A
-- North Carolinians or --
Q
Would it refresh your recollection if I handed you a copy
of your deposition transcript from last week?
A
You can, but I think if you'll just clarify your question
for me, maybe I can respond.
MS. RIGGS: May I use the ELMO to display? May I
approach, Your Honor?
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THE COURT: If you've got to use the ELMO, just pop
it up.
MS. RIGGS: Give me one second. Do you see on
lines 21 through 23 --
MR. PETERS: I'm sorry, which page is this?
MS. RIGGS: Sorry, page 138, lines 21 through 23.
You were speaking, I believe, with Mr. Patterson at the time.
Can you see it, or do you need me to zoom?
THE WITNESS: I can see it.
BY MS. RIGGS:
Q
Okay. You said: "And I know more and more people
personally who have been affected by it, and we do not have a
strong mask compliance, and we've been told that it will help."
You continue on to say: "So do we fear that we will
still be in a pandemic situation in November? Yes, we do."
Do you recall saying that now?
A
I do. I think I was talking about in general overall
compliance of North Carolinians or as a country.
Q
And in your executive -- sorry -- in your emergency order
issued Friday, you noted explicitly that voters will not be
required to wear a mask at polling places in November -- or in
October/November, correct?
A
I stated it on Friday. I stated it before. There is no
constitutional requirement for an individual to wear a mask in
order to vote.
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Q
And you understand that voters being exposed to other
voters who are not wearing masks could increase their risk of
transmitting and contracting COVID-19, is that right?
MS. MOSS: Objection, to the extent it's asking her
to offer a medical opinion.
THE COURT: Well, as the Director of the State Board,
I think she's entitled -- I think they're entitled to inquire
as to what her understanding may be so that they better
understand the requirements that they may be putting in place.
Her understanding is not a medical opinion, but her
understanding certainly would seem to me something that would
guide her decision-making process, so I'll overrule. You can
answer the question.
THE WITNESS: Could you repeat your question,
please --
MS. RIGGS: Can the court reporter read it back?
(Question read back by the reporter.)
THE WITNESS: What I understand is that we are
providing masks at all polling places for any voter who wishes
to wear one. We are requiring our poll workers to wear masks,
and so that's how we're able to comply with exposure -- risk --
lessening the exposure that anyone would have in contracting
the virus in terms of masks.
BY MS. RIGGS:
Q
And that didn't quite answer my question. You're aware,
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aren't you, based on the recommendations you made to the
legislature and the number of memos that you've issued, that
voters being around other voters not wearing a mask will
increase the risk of transmission and contraction of COVID-19.
Isn't that correct?
A
We're aware that we need to have masks available and that
those will be provided to any and all voters, we'll have social
distancing in place, and we'll be providing all voters the
opportunity to vote in person or by mail.
Q
But an at-risk voter who goes to vote in person will not
be guaranteed that the voters around him or her will be wearing
a mask, correct?
A
They will not be guaranteed, but they can make the choice
to wear the mask themselves which reduces their exposure.
Q
Not nearly as much, to your knowledge, as other voters
wearing masks -- everyone wearing masks, correct?
A
I don't know that. That's -- that is a medical decision.
I know I wear my mask because I know that reduces my risk of
contracting the virus from someone else.
THE COURT: Okay. Timers off for just a second.
Okay. So I get your point about there is no
constitutional requirement to wear a mask to vote. I get that.
But how do you square the presence or absence of a
constitutional requirement with the current rules in place with
respect to individuals being required to wear masks when,
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quote, social distancing is not possible indoors -- I don't
have the exact language in front of me. So there's an
emergency order, and then there's constitutional issues.
THE WITNESS: It is something we're having to
reconcile, but we also did state that we will require social
distancing, but we have to be mindful that, you know, we --
there is nothing in our constitution that says you have to be
anything other than a citizen, 18 years of age, and registered
to vote properly in order to cast a ballot. So that's the
legal guidance that I've been given is that we don't have a way
to restrict that. Similarly, if -- right now there's an
injunction that says we can't require photo ID.
So we will -- we are working with the governor's
orders, but what you just mentioned is sort of the reason we're
going to be enforcing social distancing as well.
THE COURT: But if I were to say to you the
constitution doesn't require social distancing to vote, so how
do you pick and choose which ones to enforce?
THE WITNESS: By asking someone to stand 6 feet apart
from another doesn't keep them from being able to go and cast
their ballot. But if I say that you must leave because you
don't have a mask on, that's different. I also -- I'm sorry?
THE COURT: Wouldn't you also say if they refuse to
maintain social distances that you have to leave? How are you
going to address that if you say no?
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THE WITNESS: We do have to keep order, and that's
one of the roles of the chief judge and two judges that are
appointed at each polling place, that they do have to maintain
order. If there's not order, they can -- they actually are
authorized to call in law enforcement, but we have to be very
mindful of that because we don't -- law enforcement is also
seen as voter intimidation, so I don't want to be in a
situation where we have, you know, law enforcement stay at our
polling places.
THE COURT: I assume even if you decided you could
enforce the governor's order in terms of wearing a mask
indoors, the actual language of the governor's order says that
if an individual says they can't wear a mask, or they're
excepted from wearing a mask, no inquiry is permitted. So even
if you enforce the governor's order and somebody says no,
you're bound by that.
THE WITNESS: That's right, and similarly when
someone presents themselves to vote curbside, if they say, you
know, I can't go in because I've had back surgery, I don't ask
them to show me the scar.
THE COURT: Um-hum.
THE WITNESS: So, yeah, it's a difficult, you know,
place to balance. Yes, sir.
THE COURT: All right. Hold on a second. You can
turn the timers back on. You may proceed.
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BY MS. RIGGS:
Q
Director Bell, as of your July 14 deposition, you had not
yet reviewed and approved the final proof for the absentee
application or envelope, is that correct?
A
That's correct.
Q
And you were still planning to have counties review that
proof as of the next day, July 15, 2020, is that right?
A
I believe that's right, yes.
Q
You've been working with the Center for Civic Design prior
to the pandemic on redesigning the absentee envelope, is that
right?
A
Yes.
Q
If this Court ordered the elimination of the witness
requirement, you haven't talked to the Center for Civic Design
about whether they could revise the envelope design in a matter
of days, is that right?
A
Actually, I'd like to go back to your last question. I
think you asked if I was working with the Center for Civic
Design before the pandemic. Only had there been a conversation
at a conference. We were in the pandemic by the time we
started doing the work with the Center for Civic Design.
Q
Okay.
A
I just wanted to clarify, so now if you'll --
Q
That's fine. If the Court ordered the elimination of the
witness requirement, you haven't talked to the Center for Civic
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Design about whether they could revise the envelope design in a
matter of days, is that right?
A
I have not spoken with them about that, that's correct.
Q
And your position is that the timing concerns in producing
absentee envelopes isn't a matter of altering the design in
sufficient time, is that right?
A
There is -- I may not be understanding your question
correctly. There is time involved in the redesigns. Is that
what you just asked me?
Q
I'm asking you, I understood your testimony at your
deposition to be that that wasn't the make it or break it, the
design of the envelope, is that correct?
A
It is a factor, but it's probably not the most
time-consuming part in this.
Q
And if the Court ordered you at the end of July, say, to
remove the witness requirement, you'd work with the Center for
Civic Design to reformat and review the redesigned envelope,
right?
A
I would.
Q
And it's true, isn't it, that you haven't personally
spoken with any of the printers who might be contracted with in
order to print the absentee ballots about what would happen if
you sent them a proof at the end of July or early August, is
that right?
A
I have not personally, but staff has spoken with printers.
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Q
Did you -- so your position -- did that happen since your
deposition?
A
They have spoken in the past few days with printers, yes.
Q
But as of your deposition, you hadn't instructed staff to
have that conversation either?
A
If they had conversations, it was not in my instruction.
Q
During your tenure as a State Board of Elections Director,
when Commercial Enterprises, with whom you have a state
contract, was unable to deliver a printed guide on the timeline
you wanted it, you were able to shift to a commercial printer,
is that right?
A
The entity is Correctional Enterprises. Sorry. I do that
myself. But, yes, we have a circumstance where they could not
meet the order, and we shipped it to a commercial printer.
Q
My apologies. I think you corrected it in your
deposition.
And you're not aware of any situation where you
haven't been able to find an alternative printing vendor when
timing became a problem, isn't that correct?
A
I only have one circumstance to compare it to, so -- in my
time.
Q
So the answer is you're not aware of any situation?
A
I'm not, but that also was not during a pandemic.
Q
And if the Court were to order the witness requirement
eliminated, and one or more printers were unable to meet that
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deadline, you would seek out the service of alternative
vendors, right, Director Bell?
A
I would need to or the counties would need to.
Q
Okay. You told the Court in your declaration that if
envelopes are not ready in mid-August, county boards of
elections will not be prepared to send out absentee ballots by
the September 4, 2020, deadline, is that right?
A
I do agree with that, yes.
Q
Okay. But you're able to print absentee envelopes in
batches, isn't that right?
A
In some circumstances, they can be printed in batches.
Q
And not all absentee applications and envelopes have to be
mailed on September 4, correct?
A
Actually, I mean, that's the deadline, so, yes. When we
proceed, we should be mailing them at that point by state law.
Q
But all absentee envelopes and applications that go out to
North Carolina voters don't and can't be sent out on
September 4, isn't that right?
A
All that we received, we will be sending on September 4.
Q
Exactly. In fact, voters have until the Tuesday before
election, October 27, to request an absentee ballot, correct?
A
That's correct.
Q
So counties will still be mailing absentee application and
envelopes after September 4, isn't that right?
A
They will be, yes.
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Q
So they don't need all of the envelopes they may need to
send out over the entire election period by September 4, isn't
that right?
A
Do they need to have all of them right then and there?
No. But it does affect their pricing. It does affect whether
they're able to comply with all that they've received, and
they've already received an increased amount over previous
presidential election years. So their volume of what they need
right now is even more substantial than what they've had in the
past.
Q
But the expected participation by absentee mail, you've
revised those projections downward since the June 23 election,
isn't that correct?
A
We do think it may be lower than we projected, but I
believe I indicated earlier that we prepare for what we could
possibly see so that we don't come up short. So we are still
planning for 40 percent participation in case that does happen.
Q
And you'll be monitoring the numbers received up until
September 4 certainly to track what those projections will be,
won't you?
A
We'll continue to monitor, yes.
Q
Okay. And as of your deposition, you've not had any
conversations with either -- and I'm going to get this wrong
again, I apologize -- Correctional Enterprises or any other
printers about your concerns that they may not be able to get
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print jobs done on a shortened time frame because of COVID-19,
is that correct?
A
At the time, that's correct.
Q
There may be some costs saved by aggregating envelope
printing orders if half the counties ask the State Board of
Elections to print ballots for them, isn't that correct?
A
We have asked what -- we have reached out to Correctional
Enterprises about batch ordering, but -- or bulk ordering, but
the difference is that we've also moved forward with the
ballot -- ballot return envelope design that specifies the
county board of elections' phone number. So it's not like
we're printing hundreds of thousands of the exact same
envelope.
Q
But there may still be some costs saved by the counties
ordering through you, isn't that correct?
A
I don't know. I have seen where we've asked for an
estimate from Correctional Enterprises in the last few days the
time frame, and then we'll be able to share that information
with the counties to determine if that's a lesser cost than the
vendor they would normally use.
Q
Sitting here today, you don't have that information?
A
I haven't made a comparison, no.
Q
Okay. And at least as of your deposition on July 14, the
question of whether counties will be ordering their absentee
envelopes on their own or having the State Board of Elections
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do it was, in your words, "an evolving process of how we're
going to handle printing." Is that correct?
A
That's correct. It is the counties for them to determine
which way they want to go. Also, when we originally sent out
that inquiry to the counties, the legislature had not made the
final vote on the CARES Act; and in doing so, they allocated to
the counties as sub grants. So we don't have a fund where we
actually place the order. They can instruct us, we can draw
from their funds, but we are not the ones making the purchase.
Q
But as of a week ago today, the question of who was going
to order it, the State Board or the counties, was still an
evolving question, correct?
A
It is.
Q
And accurate to say it's still an evolving question today?
A
That's correct.
Q
Thank you. There are many states that conduct elections
either absentee-by-mail or all mail elections that do not have
witness requirements, correct?
A
Correct.
Q
And their voters' perception of the election being secure
is fine as far as you know, correct?
A
I haven't spoken with voters in those states, but as far
as I know.
Q
As far as you know, yes?
A
As far as I know, yes.
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Q
Okay.
A
But those other states do signature verification, so maybe
that's the reason the voters are assured.
Q
Do you know if those voters even know about that process?
A
All --
THE COURT: She hadn't talked to the voters. I don't
want her to speculate about that.
THE WITNESS: And I don't know what voter education
they do.
THE COURT: You don't have to answer that.
THE WITNESS: Thank you.
BY MS. RIGGS:
Q
State laws require counties to constitute Multipartisan
Assistance Teams, or MAT teams, to assist voters, particularly
those residing in certain facilities, in requesting and casting
an absentee ballot, correct?
A
Correct.
Q
In past elections, though, there have been counties
where -- that have not made MAT teams available, is that
correct?
A
That's my understanding.
Q
Director Bell, I want to show you an exhibit that we
discussed at your deposition and given it to the Court and mark
it, if we can. We'll call this Plaintiffs' Exhibit 1?
THE COURT: Are you going to use the overhead?
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MS. RIGGS: I don't have to for this one if I'm
handing one up and it's marked, but I can if you prefer it.
THE COURT: So to the extent you can, I do right now
prefer using the overhead. Just put the official exhibit up on
the bar right there next to -- on the yellow spot, and then
just show it.
MS. RIGGS: May I approach, Your Honor?
THE COURT: Um-hum.
BY MS. RIGGS:
Q
Director Bell, can you see this?
A
Yes, I see it, yes.
Q
That's just a description of what it is.
MS. RIGGS: Your Honor, this exhibit, which we've
marked as Plaintiffs' Exhibit 1, has also been previously filed
at ECF 73-8 at pages 7 through 9. It was authenticated by the
witness at her deposition.
THE COURT: All right.
BY MS. RIGGS:
Q
Director Bell, do you remember us discussing this exhibit
at your deposition?
A
I do.
Q
In fact, in the March 2020 primary, you're aware that
Davidson County did not have a MAT team to assist a voter in an
assisted living facility, correct?
A
Correct.
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Q
And you were copied on this email exchange, that is,
Exhibit 1?
A
Yes, I am copied.
Q
And this is an email exchange between the North Carolina
State Board of Elections' general counsel Katelyn Love and
Kenya Myers who works for Disability Rights North Carolina?
A
It is.
Q
You discussed Ms. Myers' inquiry with Ms. Love, correct?
A
I do remember having some conversation.
Q
That in early voting for the primary election this year,
Ms. Myers notified you that Davidson County, despite its
statutory obligation to do so, did not make a MAT team
available to assist a voter that had requested its assistance,
is that right?
A
That's my understanding.
MS. MOSS: Your Honor, may I lodge an objection,
please? The document that is attached -- that she's asking her
about was attached to the Myers declaration, which you struck;
and while Director Bell may have authenticated that this is an
email that was sent, to the extent that she's eliciting hearsay
testimony or hearsay information from Ms. Myers who is not here
to be cross-examined or, you know, for us to know the veracity
or foundation for anything that she's saying to Ms. Love, I
would submit that that is hearsay that should not be
considered.
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MS. RIGGS: Your Honor, may I respond?
THE COURT: No. Let me hear the rest of the
questions, and then I'll rule because I'm really unclear where
this is going at this particular juncture with respect to the
Executive Director. So let me hear some more; and then when
we're done, I'll hear from you.
MS. RIGGS: Absolutely.
BY MS. RIGGS:
Q
And so you discussed with Ms. Love that in early voting
for the primary this year, Ms. Myers notified you that Davidson
County, despite its statutory obligation to do so, did not make
a MAT team available to assist a voter that had requested its
assistance, is that right?
A
General Counsel Love made me aware of it. You can see
that the correspondence is really between Ms. Love and
Ms. Myers.
Q
If Ms. Love had provided Ms. Myers misinformation, would
you have followed up with her about that?
A
Yes.
Q
Okay. And Ms. Love informed Ms. Myers that unfortunately
not every county has a MAT team, isn't that right?
A
I believe that's what the email says, yes.
Q
Okay. And she said it may be difficult to find a team of
bipartisan volunteers to serve, and the MATS program has no
funding allocated to it by the legislature, is that right?
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A
That's what it states, yes.
Q
MAT teams still have no dedicated state funding, is that
correct?
A
That's correct.
Q
You expect that MAT team recruitment may be more difficult
because volunteers may be -- sorry -- recruitment may be more
difficult because volunteers may be concerned about contracting
or transmitting COVID-19, is that right?
A
We are concerned about that, yes.
Q
And while the State Board of Elections has oversight over
elections, if there's a shortage of volunteers, you can't
compel people to appear and act as MAT volunteers, is that
right?
A
No, I cannot compel them.
MS. RIGGS: Those are the questions I have about this
exhibit, Your Honor.
THE COURT: I mean, the Board of Elections told
Ms. Myers that another person could assist a voter?
MS. RIGGS: Not staff.
THE COURT: Yeah. I mean, the question was can we
assist a voter, right?
MS. RIGGS: Your Honor, the State and Legislative
Intervenors in this case have taken the position that MAT teams
somehow are a fail safe, and this evidence which was
excluded --
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THE COURT: No, the objection goes to the fact that
I've struck the exhibit.
MS. RIGGS: Because it was in a reply declaration.
Legislative Intervenors wanted discovery --
THE COURT: So one of the reasons that I struck the
declaration was a carefully crafted effort to limit the
information, as I saw it. Specifically, there is nothing to
confirm the substance of the letter when it was initially filed
with the motion, right?
MS. RIGGS: I'm not -- we're not --
THE COURT: And, second, in the reply declaration,
Ms. Myers comes in and says there's no MATS team, right? But
Ms. Myers never answers the question that was posed in the
letter, which was if a MAT team is not available, can another
individual assist the voter? Right? That was the question.
MS. RIGGS: Your Honor, I'm sorry. That's not the
reason it's being offered. We are offering it for the
admission by the State Board of Elections that there is not a
MAT team in every county despite the statutory obligation
that --
THE COURT: So what do we do with the other stuff in
email? The stuff about if there's a MAT team is not available,
another person can assist. Can that come in?
MS. RIGGS: That can come in. But this is an
admission by the State Board of Elections' general counsel
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there is not a MAT team in every county.
THE COURT: Could you have just asked her the
question?
MS. RIGGS: I did, in her deposition.
THE COURT: And what did she say?
MS. RIGGS: She was uncertain until this refreshed
her recollection.
THE COURT: Okay. Recollection refreshed. There's
not a MATS team in every county, is that correct?
THE WITNESS: That's correct.
THE COURT: All right. This really, really troubles
me, because had I -- let's take a recess. We'll be in recess
for 10 minutes.
(At 4:05 p.m., break taken.)
(At 4:13 p.m., break concluded.)
THE COURT: All right. Ms. Bell's testimony -- as I
understand, Ms. Bell, is that not every county in the state
created a MATS team as required, is that correct?
THE WITNESS: That's correct, sir.
THE COURT: In terms of this particular exhibit,
these are communications between the general counsel for the
State Board of Elections and an individual named Kenya Myers,
is that correct?
THE WITNESS: That's correct.
THE COURT: And do you know Ms. Myers?
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THE WITNESS: I believe I've met her or had a meeting
before.
THE COURT: Did you conduct any investigation as to
the contents of her communication to Ms. Love?
THE WITNESS: Ms. Love handled it and spoke with the
county, as I recall.
THE COURT: Ms. Bell's testimony stands with respect
to whether or not every county created a -- whether or not
every county created a MATS team. The testimony specifically
is they did not.
To the extent the letters and the communications or
the emails and the communications are used to refresh her
recollection, which is not ordinarily an exhibit to be admitted
into evidence, I do find that apparently -- I will find that
they did refresh her recollection as to that fact. In terms of
introduction of the exhibit for any substantive purpose, I'm
going to sustain the objection.
The statute says that if a MATS team is not
available -- or "unavailable" I think is the actual word --
then another individual, not otherwise excluded under the terms
of the statute, may assist; and for reasons that will be
further set forth in a written opinion, I'm going to sustain
the objection. I don't think this has -- even though the rules
of evidence don't apply, I'm not going to let Ms. Bell opine or
suggest any type of substantive finding based upon information
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from third parties who have neither submit -- who -- well, at
this point don't have an affidavit in evidence or are not
before the Court.
You may continue.
MS. RIGGS: Thank you, Your Honor.
BY MS. RIGGS:
Q
Ms. Bell, you spoke with opposing counsel and Judge Osteen
about your recommendation that the legislature temporarily
modify restrictions on voter assistance in care facilities so
that nursing home staff could assist a voter in requesting or
returning an absentee ballot, yes?
A
Yes.
Q
And should that -- should this Court enjoin the criminal
penalties for care facility staff assisting a voter, do you
know if staff would be compelled to provide that assistance?
A
If there was an injunction to that effect, then, yes, they
would be designated, and we would -- they would provide that
assistance.
Q
If -- sorry. The injunction would be against the statute
that imposes criminal penalties on the assistance. That
doesn't necessarily mean, though, does it, that care facility
staff has to help a voter in a lockdown facility, isn't that
right?
A
I guess it would depend upon what the injunction is and
how we would carry -- I don't know.
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Q
The voter guide that the State Board of Elections sends
out goes to every household in North Carolina, not every
registered voter, correct?
A
It is by household.
Q
And so there's only going to be, per your declaration, one
absentee request form in each of those voter guides, is that
right?
A
There would just be one in the guide, yes.
Q
So that may be insufficient in households where there's
more than one registered voter, isn't that correct?
A
It could be, yes, if there's more than one, but there will
also be a QR code or something where they can access the online
portal that I mentioned or to print their own.
Q
If they have access to online and printers, correct?
A
Correct.
Q
Okay. And you were not -- you testified that you were not
the Executive Director of the State Board of Elections during
the CD 9 investigation, is that correct?
A
That's correct.
Q
So you have no -- you were not even living in North
Carolina at the time of that State Board hearing, isn't that
right?
A
That's correct.
Q
So you have no firsthand knowledge of that investigation
and hearing, is that right?
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A
No firsthand, that's correct.
Q
You ordered that the Congressional District 11 Republican
primary in a Columbus County county-level primary runoff be
delayed because of the pandemic, right?
A
Actually, I ordered the second primary for the
Republican -- well, the Congressional District and the
primary -- a new primary for the district to Republican
Columbus County election.
Q
I'm sorry. Thank you for that correction.
But it was because of the pandemic, correct?
A
That's correct.
Q
And moved to June 23?
A
From May 12 to June 23, yes.
Q
And you mandated that any county participating in that
election whose office was closed have a secured dropoff box for
election materials, correct?
A
Yes, a lockbox. A locked box, yes.
Q
For voters to drop election materials in?
A
That's right, if they were not open.
Q
Okay. And those election materials would include voter
registration forms, although not for that particular primary
runoff or redo, correct?
A
It could be for the primary, but not for the second
primary, correct.
Q
Okay. Those election materials would also include
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absentee ballots, correct?
A
We actually had not issued absentee ballots at that point.
It could be the absentee ballot request form.
Q
Okay. So that could be returned by the secure drop box or
lockbox, correct?
A
That's right.
Q
Do you know if any absentee ballots themselves were
returned via that lockbox?
A
Not that I'm aware of. I believe that most of the county
offices had found a way to -- in those 18 counties that were
conducting elections, they resumed operations in some way to
retrieve those.
Q
Okay. But while only the June 23 primary runoff for
primary counties were mandated to get these secured lockboxes
or drop boxes, any of the 100 counties could have obtained a
drop box if their office was closed, correct?
A
That's correct. I believe that was a universal
instruction in terms of the operations of those counties.
Q
Okay. And you're not aware of how many of the 100
counties actually did obtain a drop box, correct?
A
No, I did not specifically chart that. It was indicated
in our website where we would update people about the hours and
so forth.
Q
Okay. And you're not aware of any counties wanting to
procure drop boxes but being unable to do so, is that right?
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A
I'm not aware. I know that when we tried to order one for
the State Board, it actually took some time for us to receive a
small drop box that we could use in our office.
Q
What is "some time"?
A
It seems like it was over a month. I don't know exactly,
but we went at least a month without one after we had ordered
it.
Q
But you're not aware of any of the counties -- the 100
counties having those issues, isn't that right?
A
I do not know one way or another.
Q
Okay. So when -- you're not aware of any counties that
used a drop box or a lockbox when their offices were closed
that had any security-related issues with respect to those
boxes, isn't that correct?
A
Not that I'm aware of.
Q
There are processes within SEIMS, the State Election
Information Management System, that can look for voter
registration duplications across counties, is that right?
A
Yes.
Q
And there are processes within SEIMS that can look within
your systems in order to process voter registrations in the
order in which they are received if it's the same county, is
that right?
A
Yes.
Q
If a voter misses the voter registration deadline --
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that's 25 days before the election -- that voter has a
fail-safe of going in person to a one-stop early voting site
and using same-day registration, correct?
A
Correct.
Q
But in a pandemic, going in person to a voting site may
not be recommended for at-risk individuals, correct?
A
That is a recommendation, correct. They can vote curbside
or do same-day registration curbside.
Q
Okay. So let me come back to that.
But if a high-risk individual misses the voter
registration 25-day deadline and is advised not to vote in
person, there's no other fail-safe that allows them to register
in time without going somewhere in person to vote in an
election conducted during a pandemic, isn't that right?
A
Other than same-day registration, if someone wants to
register after the 25-day deadline, then they will need to
go -- that's their only option.
Q
And you have to do that in person, correct?
A
That's correct.
Q
And you've agreed that there are limited options for
someone in that situation, isn't that right?
A
Limited options?
Q
As a fail-safe, if they've missed the voter registration
deadline?
A
If they've missed the voter registration deadline, then
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they would need to same-day register.
Q
But you just mentioned curbside voting during early
voting; but under North Carolina law, in order to use curbside
voting, a voter has to attest to being unable to come into the
voting location due to age or physical disability, isn't that
correct?
A
That is the attestation, yes.
Q
And your position under oath in your deposition was that a
voter's fear of contracting COVID-19, even if they were at
risk, is not a physical disability or age?
A
That is the legal interpretation that our agency has made.
Q
Okay. So curbside at early voting really isn't even a
limited option for those at-risk people if they miss the voter
registration deadline, isn't that right?
A
If they're at risk, I actually would consider that to be a
physical disability keeping them from coming into the polling
place, and they would attest to such, and then we would be able
to administer curbside voting.
Q
I'm sorry. I thought you just said that your position was
that a voter's fear of contracting COVID-19, even if they were
at risk, is not a physical disability?
A
I thought you were indicating is fear the reason to not
come -- to vote curbside. I did not recognize it as fear if
they are at risk.
THE COURT: As I understand what you're saying, fear
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is not an excuse to do one-stop -- or curbside voting?
THE WITNESS: That is right, sir. They shouldn't
attest to that.
THE COURT: If I have asthma or obesity that perhaps
puts me at high risk, then that you would consider? If they
say, "I have asthma," you would consider that?
THE WITNESS: That's a reason to not come into the
polling place, yes.
BY MS. RIGGS:
Q
What education do you plan to share with voters so that
they understand that having an underlying medical condition
that increases their risk can be used to satisfy the curbside
voting?
A
I think -- I mean, we can include information in our
judicial guide. As I mentioned, we would be giving information
about the pandemic and how we'll conduct voting, but we have
indicated -- the way we conduct curbside voting is much like I
mentioned to the judge earlier. If you state that you have had
back surgery, I don't ask you to show me the scar in order
to -- it's what the voter is attesting to. So, you know,
that's how we administer curbside voting. We don't -- we don't
grill somebody about whether they are attesting correctly or
not. We provide that service to those voters.
Q
But a voter needs to know that when he or she attests that
they have a physical disability that prevents them from going
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into a polling place, that having an underlying condition,
which there are numerous ones, satisfies that, and they can
legally attest that they have a physical disability. Isn't
that right?
A
We ask the voter can they attest to the fact that by age
or by disability they are unable to come into the polling
place. If they say yes, they sign it, and we administer
voting.
Q
Well --
A
I'm not sure that I understand your distinction.
THE COURT: Let me -- so if a voter rolled up and
said, "I'm a vulnerable person, I'm 69, I can't go in," that
counts?
THE WITNESS: That counts, yes, sir. I'm not going
to ask them to prove their age at that point.
THE COURT: If they say, "I have health conditions
that prevent me from going inside that building," that counts?
THE WITNESS: That counts.
THE COURT: All right. You can continue.
BY MS. RIGGS:
Q
Is the State Board going to issue guidance to the counties
about this topic?
A
I believe in my time of administering elections in North
Carolina, that's how we've operated. I would have to look back
to see if we've actually issued guidance before to that effect;
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but we have many materials, and that's what it instructs. I
mean, it doesn't say prove -- have the voter prove to you that
they can't come into the polling place.
Q
But if a voter pulls up and says, "There's people not
wearing masks; I don't want to go in there in case I get
COVID-19," that would not be a reason for them to be allowed to
use curbside voting, correct?
A
We would say, "Are you attesting that you are unable to
come into the polling place due to age or disability."
Q
And is there guidance to county boards specific to this
global pandemic that we're in and people's fear about
contracting COVID-19 to that effect?
A
I believe if I looked back at our guidance that we gave to
those conducting the June 23 elections, it does instruct them,
I believe -- I would have to go back -- or we've done it in
training, and there's nothing to prohibit us from issuing that
guidance now.
Q
You believe it's in that numbered memo from -- on
conducting elections on June 23, is that right?
A
I don't recall specifically. If we can look at it, I'll
be happy to see if it's in there.
Q
You most certainly can.
A
At a glance -- wait a minute.
At a glance, I don't see where we specified that. We
talk about the care for the privacy sleeves during curbside
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voting and disinfecting those. I do believe it's been
discussed during the trainings that we do routinely with the
counties through webinars. And, again, we've got many items of
guidance that we still need to put out. So there's nothing to
prohibit us from clarifying that, though I think the counties
are aware of how we would handle this because it's something we
do already.
Q
In the one election we've had in a pandemic?
A
In the elections that we conduct -- candidly, I mean, if
it rains, I can say that there are people who will come and say
that they can't go inside of the polling place, but we don't
say, "Prove that to me." We conduct voting.
Q
When you've -- well, in the -- there are frequently
complaints about lines for using curbside voting, isn't that
correct?
A
There have been complaints. I don't know if I would say
frequently.
Q
Okay. Do you know how many North Carolinians possess one
of the factors that lead to increased risk of contracting or
suffering ill effects from COVID-19?
A
I don't know off the top of my head, no.
Q
Okay. Do you know what would happen if all of those
voters avail themselves of curbside voting?
A
If they're like any voter who presents themselves to vote
before 7:30 -- or by 7:30 p.m, we'll conduct voting for them if
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we have to walk to every single car that's in the parking lot.
Q
What if there's more cars than there are spaces in a
parking lot?
A
Then they'll be lined out into the streets. We'll do --
you know, these are all things that we have to consider.
Q
You're aware, aren't you, that in primaries in other
states since the onset of the pandemic that tens of thousands
of voters report not receiving their requested absentee
ballots, is that right?
A
That is my understanding, yes.
Q
And similar to our earlier conversation, voters who on
election day have not yet received their absentee ballots have
limited options if they're advised not to go vote in person,
isn't that right?
A
That's correct.
Q
You oppose the relief that Plaintiffs seek to use the
Federal Write-In Absentee Ballot if an absentee ballot isn't
received, but that would provide such voters an option to
participate, isn't that correct?
A
The Federal Write-In Absentee Ballot is intended for
UOCAVA, Uniformed and Overseas Citizens --
THE REPORTER: I'm sorry. Intended for?
BY THE WITNESS: I'm sorry. UOCAVA. It's
U-O-C-A-V-A. It stands for Uniformed and Overseas Citizens
Absentee Voting Act.
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BY MS. RIGGS:
Q
But for the voter who has requested an absentee ballot but
not received it on election day, as tens of thousands of voters
in other states report, having that option would allow them to
participate on election day, isn't that right?
A
We -- that is an option for those particular voters. If
we were to employ that for civilian absentee voters, the
procedures are different. The FWAB does not require a witness,
for example. So we have to -- I mean, there's different
procedures. We would have to know how to proceed with that.
Q
And Plaintiffs, to your knowledge, don't request that the
Federal Write-In Absentee Ballot be submitted electronically,
do they?
A
I don't recall.
Q
Some agencies that are a part of the North Carolina
Department of Health and Human Services have a wet ink
signature on file from North Carolina customers, correct?
A
There are agencies with wet ink signatures on file, yes.
Q
Recently, duration your tenure, the State Board of
Elections offered online voter registration through the North
Carolina Department of Motor Vehicles, right?
A
That is in place, yes.
Q
And the State Board of Elections worked with the NCDMV and
its State-approved vendor PayIt to offer those services,
correct?
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A
Over a series of months, yes.
Q
But you haven't had any conversations with representatives
from PayIt to see whether they would be willing to contract
with SBOE or DHHS to similarly offer online voter registration
for DHHS customers, correct?
A
I have not spoken with PayIt. We are not their customer;
DMV is.
Q
You're part of the National Association of State Election
Directors, is that right?
A
I am.
Q
And that group is meeting weekly to share lessons learned
from the novel challenge of conducting elections during a
pandemic, is that right?
A
Most weeks, yes.
Q
Through that group and other sources, you've been
following primary elections in other states, yes?
A
That's correct.
Q
Including the recent Georgia primary conducted on June 9?
A
Yes.
Q
You understand that precinct consolidation in some
jurisdictions in that Georgia primary contributed to long
lines, correct?
A
I do understand that's a factor that happened in Georgia,
yes.
Q
Those precinct consolidations and long lines reduced the
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ability to social distance at polling places in Georgia,
correct?
A
That is my understanding.
Q
And that precinct consolidation was caused in part, in
your words, by a mass exodus of poll workers fearing
coronavirus exposure, is that right?
A
That is one of the factors that I understand, yes.
Q
And you were not aware of a -- of Georgia Statute
21-2-92(a), which is analogous to the changes which were made
in House Bill 1169, that would allow a majority of poll workers
to be residents of the county as opposed to the precinct, is
that right?
A
I do not know Georgia law.
Q
So you were not aware of that statute?
A
I was not.
Q
Okay. And while you haven't tracked it, you're aware that
some states only require poll workers to be registered voters
in the state in order to serve as a poll worker, right?
A
I actually don't know that. I'm sorry? I don't think I
know that other states have that provision.
Q
Okay. You approved some precinct consolidations in early
May for the June 23 election, is that right?
A
I did.
Q
And I believe you testified that your recollection was
that you approved precinct consolidations in six or seven
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counties in the CD 11 June 23 runoff, is that right?
A
That's my recollection now as well, yes.
Q
And those consolidations affected thousands of voters, is
that right?
A
That's correct.
Q
One of the reasons offered by counties for needing to
consolidate precincts was poll worker shortage, correct?
A
That was stated by some of the counties. That was not the
only factor that we considered.
Q
It was one of the reasons offered by the counties,
correct?
A
Correct.
Q
You are -- and North Carolina will need substantially more
poll workers for the general election in November, correct?
A
We always use more poll workers in a presidential
election.
Q
You are not confident that North Carolina county boards of
elections will be able to adequately staff early voting sites
and polling locations on election day, isn't that true?
A
I'm concerned about election day in particular. I do
think we have the means to staff our one-stop early voting
sites.
Q
Are you testifying today that you are confident you will
be able to staff early voting sites?
A
I'm more assured that we can do that. I can't be
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confident. We're working on that.
Q
The average age of poll workers in North Carolina is
around 70, and the role requires significant interaction with
the public. So you anticipate that poll workers in at-risk
categories may be advised not to serve or may be unable to
serve this year, correct?
A
I'm aware that we may have poll workers who are unable to
serve, correct.
Q
And you've only run one statewide election, a primary, in
your tenure as the State Board of Elections director, and
that's the basis of your knowledge about how counties statewide
will deal with potential poll worker shortages, correct?
A
I don't know that that's actually the basis. I've worked
in elections administration for 14 years. I've had to recruit
poll workers myself, and we did not have a pandemic on March 3.
So I'm basing it more on the experience of other states and
also what we experienced for June 23.
Q
Which was not a statewide election, correct?
A
That's correct. It was 18 counties that were involved.
Q
Okay. And you've never administered a statewide
presidential general election, isn't that correct?
A
Not as Executive Director. I have actually been in
election administration for two other presidential elections as
a State Board staff member and as a county director.
Q
And you discussed those roles with Mr. Peters earlier,
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isn't that right?
A
I did identify those roles, yes.
Q
North Carolina has approximately 2,700 precincts, isn't
that right?
A
That's correct.
Q
And in order to provide each precinct with five to nine
workers, you anticipate needing 20- to 25,000 workers for
election day across the state, isn't that right?
A
That's correct.
Q
And as of last week through the State Board's Democracy
Heroes Campaign, the State Board had enlisted 600 of the 20,000
to 25,000 of the necessary poll workers, isn't that right?
A
As of last week, and then we issued another -- we'll
continue to update the counties, and another about 500 were
sent out yesterday. So approximately in a week, week and a
half, two weeks, we had had another 500 sign up, and that's
without doing all of the provisions and steps that we're
planning to take with Democracy Heroes.
Q
So you now have about 1,100 -- am I understanding your
testimony correctly that you have about 1,100 people signed up
to do that?
A
A thousand to 1,100 through our efforts. I don't know
what the efforts of the counties has actually generated.
Q
And the State Board of Elections has access to the contact
information from all the individuals who sign up through this
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centralized Democracy Heroes enrollment site, correct?
A
If they provide that on the survey, yes, we have that
information.
Q
You couldn't provide them to the counties if they didn't
provide their contact information, correct?
A
That's correct.
Q
All right. So I want to ask you about uniform hours now.
In your letters to the North Carolina General
Assembly, you recommended that the legislature consider
changing or modifying the uniform hours requirement for
one-stop early voting sites, correct?
A
There was a recommendation that indicated that we should
consider the one-stop sites, yes.
Q
And you recommended that because, and I quote, "county
boards of elections need flexibility to determine hours because
they are affected directly by and respond differently to the
COVID-19 pandemic," is that right?
A
That's correct.
Q
Mr. Peters didn't number it, but you recall the second
letter you sent to the legislature on April 22, correct?
A
I did send another letter on the 22nd of April, yes.
MS. RIGGS: Okay. I want to mark that just so we can
see that. Mark that as Exhibit 2, and I'll just put it on the
ELMO for you to look at.
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BY MS. RIGGS:
Q
Director Bell, I want to ask you about your recommendation
with respect to considering modifying one-stop site and hours
requirements. You said in this letter that you expected a
change would reduce costs for county boards of elections, isn't
that right?
A
It's stated there, yes.
Q
And you're generally aware that some county boards of
elections feel that complying with the uniform hours
requirement has cost their county board of elections money, is
that right?
A
Could you state your question again, please?
Q
Absolutely.
You're generally aware that some county boards of
elections feel that complying with the uniform hours
requirement currently in place has cost their county board of
elections money?
A
Some have stated that, yes.
Q
And you're aware that the additional cost has influenced
some county boards of elections' decisions to reduce the number
of early voting sites, particularly from 2014 to 2018, isn't
that right?
A
I think I've stated I don't know if that's a direct
correlation.
Q
You don't remember -- do you -- so you're testifying today
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that you don't know or haven't -- it hasn't been reported to
you that the additional cost influenced some county boards of
elections' decisions to reduce the number of early voting
sites?
A
I don't recall what I said in the deposition. You can
state it for me.
THE COURT: Well, first of all, there's a question
out there. Have some county boards reported to you or were you
aware that some county boards have reported to the State Board
of Elections that the uniform hours requirement had cost the
counties money?
THE WITNESS: They have to factor in their budgets,
and so if the uniform hours meant that they would be open more
hours than previous, then, you know, they may have factored
that in to changing their sites, but they look at usage and
determine whether it's -- you know, whether they actually had
enough participation to justify being open. I mean, there's a
lot of variables to why.
THE COURT: Okay. I didn't quite capture your
question. You can finish it up, if you want to.
BY MS. RIGGS:
Q
And so sitting here today, you're testifying that --
sitting here today, you're testifying that you're not aware
that some county board of elections officials -- that that
additional cost has influenced their decision to reduce the
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number of early voting sites?
A
That may be a factor. I don't have a specific report or
study or anything where they've said that, but there are
indications that there have been some in 2016 where they didn't
open as many sites.
Q
Because of the cost associated with the uniform hours
requirement?
A
That may be why they chose to not.
Q
Would it refresh your recollection if I showed you your
deposition testimony on this topic?
A
Feel free.
Q
I'm reading from page 97, line 25, to 98, line 6. And,
Director Bell, I asked you:
"And sitting here today, are you aware that -- of --
that some county board of elections officials -- that
additional cost has influenced their decision to reduce the
number of early voting sites, particularly from 2014 to 2018?"
And you testified:
"I -- that has been presented to me or stated to me,
yes."
A
That's right. I just said that it could have been a
factor, and there have been conversations. There's not been a
specific study or report presented to me to that effect.
Q
Yeah, I wasn't asking about a report. Thank you, though.
I want to ask you now a few questions about your
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emergency order from this past Friday that Mr. Peters discussed
with you, and it's been marked as Exhibit 2.
I understood -- oh, I'll give you a minute to find
it.
A
I'm sorry. I have a stack of papers here.
Okay.
Q
I understood from your discussion with Mr. Peters that
this order extended the deadline previously set as July 31 for
the submission of early voting plans to August 7. Can you
point me to where that order moves that deadline? I'm sorry if
I'm missing it.
A
I believe that it was actually -- General Counsel Katelyn
Love sent this out on my behalf, and I believe it was in her
email that this -- or this was attached that she stated August
the 7th would be the date.
Q
Okay. But it's not in this order?
A
I don't believe so, not specifically.
Q
So on Friday, you moved that deadline back a week?
A
That's right, for the counties.
Q
You're generally aware, aren't you, that because of a
July 29, 2016, Fourth Circuit ruling affecting the early voting
period, county boards of elections were resubmitting their
early voting plans in late August of 2016, aren't you?
A
That's my understanding, yes.
Q
You issued this emergency order because in your judgment
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the current electoral scheme with respect to one-stop early
voting and in light of other states' experiences is not
sufficient to accommodate the disruptions caused by COVID-19,
is that right?
A
Correct.
Q
And your July 17 emergency order does not lift the uniform
hours requirement, does it?
A
It does not.
Q
And your emergency order creates a waiver process for
counties in their one-stop early voting plans submitted to the
State, is that right?
A
Yes.
Q
The waiver goes to the Executive Director, you, not the
State Board, is that right?
A
Correct.
Q
What is the process by which you will decide whether or
not to grant a waiver?
A
We state in this emergency order that factors will be the
length of lines, the ability to do social distancing; and if I
were not here today, I could probably finish the numbered memo
that gives it more clarity, but, fortunately, I have others who
are working on that.
Q
Okay. Is that an exhaustive list?
A
Those are the primary factors.
Q
Will the numbered memo explain the weight you'll give to
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each of those factors?
A
It will define the criteria more and provide them with
either a form or the questions that they will need to respond
to.
Q
And I understood your testimony earlier to be that
unanimous plans that are compliant with the emergency order
will just -- there won't be any State Board of Elections
review, is that right?
A
We provide a general review; but if it's unanimous and
compliant, then there's no reason to not allow for it.
Q
What about plans that are unanimous but a waiver is
needed? Will those be -- how will those be reviewed by the
State Board of Elections?
A
If they are unanimous but request a waiver?
Q
Yes.
A
Then, as we are planning, it will go under my review
because they are unanimous. The waiver would be under my
review.
Q
What if you denied the waiver?
A
That is actually something that the general counsel and I
have been discussing, but we have not come to a decision.
Q
I want to ask you about a part of the emergency order that
is on the bottom of page 6, No. 3. It says:
"Any county board of elections that only has one
one-stop early voting site shall arrange for a backup and
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backup staff in the event that its site must be shut down or in
the event that there is lack of sufficient staffing due to
COVID-19."
If there's lack of sufficient staffing due to
COVID-19, how would a county board have backup staff?
A
That's meaning if the individuals who were assigned to
that site and working -- if someone became ill or unable to
fulfill their duties, then there's not a sufficient staff at
that site. So we would bring in the backup team.
Q
The emergency order also notes that the State Board of
Elections will provide a centralized location on its website
for precinct consolidation information throughout the voting
period. Will that be before you approve those precinct
consolidations?
A
The reason we would post it to the State site is because I
have approved the consolidation. The discussion of those
consolidations happens at the county board level.
Q
But your approval -- the county can't just consolidate
precincts without your approval, isn't that right?
A
That's correct.
Q
So how would a voter find out about proposed precinct
consolidations?
A
Proposed precinct consolidations are part of a county
board meeting.
Q
So they have to attend a county board meeting?
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A
They are public meetings.
Q
Are they accessible by -- is every county board of
elections meeting currently accessible by some virtual
mechanism?
A
If they do not meet in person, they've been instructed to
hold a telephonic or some sort of platform where they -- people
can remote in.
Q
I understand they've been instructed to do that. Are you
aware if they are actually doing that?
A
They've been instructed to do so and reminded to do so.
Q
It's a yes or no question. Are you aware if they have
been doing it or not? You can say, "I don't know."
A
I don't know.
Q
Okay. Thank you.
You issued personal protective equipment for the
June 23 election, is that right?
A
Yes.
Q
To poll workers and offered it to voters, is that right?
A
There were sufficient masks for every voter if they chose
to wear one.
Q
Those were not N95 masks, were they?
A
No, they were similar to what your colleague is wearing.
Q
What would you classify that kind of mask as?
THE CLERK: Plaintiffs have 5 minutes remaining.
MS. RIGGS: Thank you.
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THE WITNESS: I don't know the exact term. I think
they're considered disposable or surgical masks, or something
to that nature.
BY MS. RIGGS:
Q
And were the PPE masks provided to voters of the same
quality as that provided to the poll workers?
A
Yes. Poll workers were also provided with face shields,
D-65s.
Q
There's no statutory right for a voter to seek to cure a
deficient absentee application, is that correct?
A
Meaning the return envelope, the container envelope?
Q
Yes.
A
Is there a cure?
Q
Is there a statutory cure?
A
No.
Q
And, in fact, the statute says the county board Of
elections -- there's no appeal from a decision from the county
board of elections whether or not to accept an application, is
that correct?
A
There is not an appeal in a statute, correct?
Q
And did I understand your testimony to be that counties
are already always offering voters an opportunity to cure a
deficient absentee application?
A
It is my knowledge of the practice that they do seek to
try to remedy that with the voter, if that's possible. You
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can't have -- there's certain things that cannot be cured.
Q
Such as?
A
If the board determines that there was no witness
signature, then you can't say fix this envelope by bringing in
a witness because that would not mean that the witness actually
witnessed them voting.
Q
Okay. So there's no ability for those voters -- if they
misunderstood the witness requirement and didn't have a
witness, for those voters to cure their absentee ballots?
A
We could contact them and spoil that particular ballot.
Q
Do you know if that's the regular practice right now?
A
That was a procedure in my county office.
Q
Do you know if that's a regular practice across the 100
county boards of elections you and your office currently
supervise?
A
I don't know, but I believe many do.
MS. RIGGS: No further questions.
THE COURT: Who goes next?
MS. MOSS: I just have two follow-ups.
REDIRECT EXAMINATION
BY MS. MOSS:
Q
Director Bell, do you know whether Davidson County will
have a MAT for the November election?
A
I don't know at this time.
Q
Do you know whether any of the 100 counties will lack a
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MAT in the upcoming general election?
A
I don't know one way or the other at this time.
Q
And do you know definitively that any county closed an
early voting polling site in 2018 that was open in 2016 because
of the uniform hours requirement?
A
I would not -- I don't have specific indication one way or
the other, other than conversations, but I do believe there are
other -- there are many factors as to whether someone keeps a
polling place open or not.
Q
So if I asked you to identify a polling place and a county
that you know was closed because of the uniform hours
requirement, you can't provide an example?
A
Not at this time, no.
MS. MOSS: That's all I have. Thank you.
THE COURT: Mr. Peters?
MR. PETERS: Thank you, Your Honor.
REDIRECT EXAMINATION
BY MR. PETERS:
Q
Ms. Bell, a couple follow-up questions.
You've been asked some questions about MATS,
Multipartisan Assistance Teams. Can you tell us generally is a
MAT something -- that a county would have a standing MAT for
all of its elections, or is it something that's recruited
election by election?
A
I think it depends on the county, but if -- that would be
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something that they would recruit election by election. I
would say that there are returning people, but it can be
election by election.
Q
So would it be fair to say that if a county did not have a
MAT for, say, the primary, that that doesn't mean there's not
-- won't be one in place for the general election?
A
Correct.
Q
Now, you were asked some questions about curbside voting.
Do you -- by "you," I mean the State Board and you as the
Executive Director. Do you provide information to voters about
how they can vote?
A
Yes. We have our website. We have the judicial guide
that goes out. I've been giving presentations. We have an
outreach team that gives presentations. And the counties do
their own efforts similar to that.
Q
And does that guidance and education you regularly
provide -- does it include things like how to do curbside
voting?
A
Yes.
Q
You were asked some questions about printing of the
containers and whether or not you could print in batches and
that sort of thing.
Does it create a problem if you change the ballot --
or the container design midway through such that the containers
you send out to people at the beginning of September are
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different from the ones you're sending out at the end of
September? Does that create problems from an election
administration standpoint?
A
I think there's two factors there. Yes, you're then
administering voting differently for, you know, the first
voters versus the second group of voters.
Also, when we talk about batch printing, depending on
the print house, many of these large-scale printers, it's not
like the way we put envelopes into our personal printers.
They're not existing envelopes. A lot of times what these
printers are doing is a big sheet of paper that they print, and
so the information, you know, that's on the front of the
envelope is being printed at the same time as the back of the
envelope, and so then they cut and fold them into envelope --
you know, seal them and glue them to create an envelope. So
it's a sheet of paper that is created into an envelope. So if
we were to make changes, then there could also be the need for
the county to get a whole new batch of design and not be able
to use the previous batch.
Q
And does that have cost implications?
A
Absolutely. I mean, you pay for what they've printed or
you pay for what they've ordered for you, and, you know, they
could just be tossed, and we've done that before, and it's not
a fun thing to say to your commissioners, "I truly threw that
out with the recycle bin."
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Q
And do you have any experience as to in the past, when
there had been printing done in batches, why it was done in
batches?
A
I have a personal experience. The staff member thought
that they had ordered an adequate supply and had that on the
shelf, and it turned out to not be the envelopes that we
needed. So I contacted a printer. He did a small batch and
made it readily available, but I paid for that because it was a
smaller quantity than if I had been able to order in bulk,
which we did do.
But I'm also very mindful that, you know, when I look
back at that point in time -- you know, if we think about the 4
to 5 percent participation that we normally have, we also order
in smaller batches, and now we're talking about larger volumes,
which is something else the counties have to consider and the
printers have to consider. And they're also working under the
same constraints of COVID-19 and protection for their employees
and the supply chain that even makes paper available to us
right now. It's the same trees that we have to have for paper
towels and toilet tissue. So there's a lot of factors in how
we're getting our envelopes.
And the indication from the two printers that I know
staff has been in contact with is that they need a 4-week
turnaround to make this happen, at least.
Q
And you mentioned the supply chain. Has it been the case
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at times that the reason that printing has happened in batches
is not because of any need from the board of elections, county
or state, but because the printer only had so much paper
available and was waiting for more paper to come in?
A
That's right. They will quote us a price. If you order a
thousand, this is what your cost is, and maybe they only have
enough to print 250 -- and I probably should go with higher
numbers, but let's just say they can get the 250 to you right
here and now. If you're agreeable that they could come --
continue to fulfill the order, they will do that.
Q
All right. You've been asked some questions about the
emergency order that you issued last week. That order does not
waive the uniform hours requirement, does it?
A
It does not.
Q
So what is the purpose of that order and particularly what
the order directs with regard to weekend hours?
A
We maintain the uniform hours. We did have an
interpretation -- a legal interpretation that the uniform hours
are 8:00 to 7:30 weekdays and then that final Saturday of 8:00
to 3:00. A county during the week can expand their hours
before 8:00 a.m. and after 7:30 p.m., or after 7:30 p.m., if
they choose, but they'll still be uniform in that application.
In terms of the weekends, what we recognize is that
we have to be able to get as many voters -- let me -- we can
have -- if we increase the number of hours and the number of
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sites available to them and the number of options available to
them and spread that across the county and spread that across
the 17-day period, then we will be able to vote more people
during the one-stop period.
And what becomes so critical about that is that if
we're now voting instead of 4 or 5 percent during absentee by
mail and now we're up to 20, 30, or 40 percent, and now during
our one-stop period, when we have the most participation in
most counties in our state -- that's how most people choose to
vote. So if we can still get 40, 50, or 60 percent of the
voters participating then, spreading it over the 17 days where
we don't need as many sites to be open as we do election day --
therefore, we don't need as many workers in that period of
time -- but yet we've got the additional hours on the weekend,
we've got, you know, the requirement that they have more sites
based upon that number of voters, then we are spreading the
opportunity.
We're also helping to ensure that when we get to
election day, that we have a very small amount of voters that
are left; and when we have situations where we don't have
enough workers on election day and we don't have enough sites
available -- we're planning to be completely open. We're
planning to be completely staffed, but things will happen. And
so that's why we've even got enhancements within our SEIMS
system so that if we do have to move one of those polling
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places on election day, that it will not impact as many voters.
We've spread it over that early voting period, and we've
absorbed it with the absentee period.
Did that make sense? I said a lot. I'm sorry.
Q
That's all right. Thank you.
There's been a lot of discussion about whether more
hours are provided, whether more locations are provided and how
that affects voter turnout. As you look at this as an
elections administrator, how do you weigh the more hours versus
more locations?
A
You have to have both. I mean, it gives us -- it gives us
quantity and quality, because we're also still adhering to the
uniform hours; we're still adhering to the other criteria
within the law that says that we will not favor based on party
or demographics or location. And they can establish those
sites to make it available to as many voters as possible.
Q
All right. And then one last thing. I believe you
mentioned this, but I just want to make sure that this is
clear.
As you plan for things like how the MATS will work
and as you plan for how voting can be conducted in polling
places, is the State Board working with the Department of
Health and Human Services to plan how to do that safely?
A
We are and with the State Emergency Management who is
helping us. They actually have -- are going to be providing
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our PPE so that we have more funds available to the counties.
So, yes, we're working with both agencies.
MR. PETERS: Okay. Thank you. I have no further
questions.
THE WITNESS: Thank you.
THE COURT: Okay. A couple of quick things. One,
several times throughout your testimony, you talked about the
majority/minority plan --
THE WITNESS: Yes, sir.
THE COURT: -- coming from a county board.
Would you just generally for the record explain what
you mean by majority/minority plan, like how many members of
the board there are, who appoints them, and how those
majority/minority plans arise?
THE WITNESS: Yeah, in terms of one-stop, it doesn't
have anything to do with the appointment of the board members.
If, for example -- and we have had this -- we have four members
out of five who vote in favor of the plan that the elections
director generally presents, then those four represent a
majority, and that's how that plan would be presented to the
State Board. That would mean that the one member who didn't
agree then states what they would like. We ask them to provide
a minority --
THE COURT: So each county board consists of five
members?
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THE WITNESS: Yes, sir.
THE COURT: And a majority/minority plan just refers
specifically to a majority of the board members, whether it's
4/1, 3/2 --
THE WITNESS: They liked that plan.
THE COURT: -- like this plan, and you consider both
plans when you are making those decisions?
THE WITNESS: The State Board does, yes.
THE COURT: All right. And, second -- so you talked
about Dowless and the canvass and discovery of the fraud, and
then you talked about an audit. And I got a little bit
confused in terms of whether or not you were saying overall
election fraud is a small thing, or whether under the audit
that was conducted they only -- whatever that audit may have
been, they only discovered two fraudulent ballots out of
4 million, or something like that.
So when you said election fraud is a small thing, are
you talking about the audit specifically, or are you talking
about overall? I wasn't clear what you were testifying to.
THE WITNESS: There have been national reports and a
general consensus that we don't have a voter fraud problem, but
because of concerns, it's my understanding that the previous
election Executive Director ordered an audit in 2017 following
the 2016 election to determine if there were substantial cases
or anything. And so that's where there were about four --
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there were over 4 million who voted in 2016, so they looked at
that, and that's where they had the two cases where it was
actually, if I recall, two different family members who thought
that they were carrying out the wishes of their relatives.
THE COURT: So there were -- Tutor who testified
about the Dowless scheme. That was in 2018.
THE WITNESS: That's right. They had been tracking
him before then, but yes.
THE COURT: Did he have some issues in 2016 as well?
I think Tutor had mentioned something about 2016.
THE WITNESS: Yes, I think there were -- there was an
investigation in 2016. I don't think there was enough to
substantiate or move forward. There was nothing substantial
enough to present a case to the State Board and then to refer
it to the DA is my understanding.
THE COURT: All right. So in terms of -- so you look
at Dowless, and in terms of voter fraud and preventing voter
fraud -- clearly, Mr. Tutor believes if somebody wants to
cheat, they're going to cheat -- what are the things that are
in place that help prevent voter fraud in your experience?
THE WITNESS: So I think the case with McCrae Dowless
in '18, he manipulated the system in terms of how they were
collecting the ballots from those who were voting absentee.
Obviously, we had witnesses at that point, and that didn't stop
him.
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So we have made recommendations following that case,
and some of those have been put into law. And, you know, it's
things like the absentee request log being very specific as to
who can assist with an absentee request. It removed the
ability for nonrelatives, legal guardians, or the voter
themselves or the MAT team -- people outside of those
individuals can no longer assist with that absentee request
form, for example. So we logged that so that we're aware of
who was turning in those forms. So we monitor that.
There's been some other provisions that were passed
back in the fall where we maintained the confidentiality of who
has returned the absentee ballot until election day so that
they can't go around harvesting them and altering them, and
that will stay in place. The Intelligent Mail barcoding that I
was talking about, the voter has the ability to track. That's
not something that is made public as to anyone.
THE COURT: All right. At the start, you mentioned
kind of the standard appear at the polling place and vote: You
have a precinct worker there, you identify yourself, your
address, and then you sign the little form, and then they
witness your -- essentially witness your signature.
What's the purpose of all that?
THE WITNESS: When I present myself to vote, then I'm
indicating who I am and this is my residence, and by stating
that, that I am who I say I am. And if not, then someone has
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the ability to challenge me.
THE COURT: Okay. Anything in response to my
questions?
MR. PETERS: Just one quick one that I think you may
have touched on earlier, but since you're asking, I want to
make sure it's clear.
BY MR. PETERS:
Q
The judge asked about the majority and minority plans that
were submitted to the State Board of Elections. When the State
Board considers a nonunanimous vote and is looking at a
majority plan or a minority plan, am I correct that it can
choose to approve the majority plan, it can choose to approve
the minority plan, or it can choose to adopt a new plan
altogether?
A
They can adopt a new plan altogether, and that's part of
why we have a period of time between when the counties submit
and the State Board consider -- State Board Members consider is
we actually provide them with some pretty extensive data so
that they can see how these two plans that were presented to
them -- how they map out and if they want to take a different
course of action, and I have actually seen them do that.
THE COURT: All right.
MR. PETERS: That's it. Thank you.
THE COURT: Anything further?
MS. RIGGS: Sorry, Your Honor. May I ask two
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questions in follow up to your questions?
THE COURT: You may.
MS. RIGGS: Thank you, Your Honor.
RECROSS-EXAMINATION
BY MS. RIGGS:
Q
Director Bell, would you agree with me that the fact that
an absentee request form must provide the voter's Social
Security number or driver's license number -- and it might be
the last four -- is -- impedes the ability of voter -- folks to
fraudulently submit absentee requests?
MR. PETERS: Your Honor, I object to this to the
extent that there's been no testimony previously and nothing
from your questions about Social Security numbers.
MS. RIGGS: Well, I think -- and I'll stand to be
corrected, but I understood you wanted -- the Court wanted to
understand --
THE COURT: What are the things in place to help
prevent fraud? And she indicated we've changed the -- I think
her answer was something along the lines of we've changed the
process for requesting an absentee ballot. And so in terms --
and then we know what the statute requires.
I'll overrule. You can answer, if you know.
THE WITNESS: I'm trying to recall whether that was
already in place, but that is part of the form, and as I had
mentioned, I mean, there were a series of things. We also knew
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some things --
THE COURT: That's another factor that would help
prevent absentee ballot fraud --
THE WITNESS: Yes, sir.
THE COURT: -- would you agree with that?
THE WITNESS: Yes, sir.
BY MS. RIGGS:
Q
And do you agree that the recent change to not make public
who has requested an absentee ballot until after that absentee
ballot has been received by the county board of elections is
another factor that would deter absentee theft and respond to
the situation like with the CD 9 Dowless issue?
A
That was done in response to CD 9 is my -- yes.
THE COURT: Have you given any thought to the fact
you're mailing an absentee ballot request to every household
and what may happen with that?
THE WITNESS: Since it's a publicly available form,
that's how we chose --
THE COURT: I'm not criticizing.
THE WITNESS: Right.
THE COURT: Rural mailbox, nothing to prevent people
from riding around and taking them, is there?
THE WITNESS: There's not, but, you know, it's the
return of those to us. So anyone could complete one, I
suppose, but it's --
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THE COURT: I think we've got a timer going off. Is
Ms. Welch over there scrambling around?
THE WITNESS: Whether we mail them to a household or
whether they download it off of a website, someone could
complete it. It's just the part of how we receive it and the
indications on those request forms that we're tracking.
THE COURT: Okay. Anything else?
MS. RIGGS: Nothing, Your Honor.
THE COURT: Okay. You may step down.
(Witness excused.)
THE COURT: Anything else we need to do today?
MR. THOMPSON: Not from our perspective, Your Honor.
MR. PETERS: I'm not aware of anything.
MS. KLEIN: Nothing from the Plaintiffs, Your Honor.
THE COURT: We'll be in recess until tomorrow morning
at 9:00.
(At 5:19 p.m., proceedings adjourned.)
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* * * * *
C E R T I F I C A T E
I certify that the foregoing is a correct transcript
from the record of proceedings in the above-entitled
matter.
________________________________
Date: 07/26/2020 Joseph B. Armstrong, FCRR
United States Court Reporter
324 W. Market Street
Greensboro, NC 27401
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