Author: Karen Brinson Bell, Executive Director
This numbered memo highlights how county boards of elections should treat technical deficiencies in the execution of the notary portion of an absentee container return envelope (officially called the absentee ballot application and certificate). As explained below, technical errors in the execution of the notary’s portion of the container return envelope do not invalidate it. County boards of elections should balance the goal of uniformly applying the law while seeking to not punish the voter for a notary’s inadvertent mistake or error.
Voting absentee ballots and transmitting them to the county board of elections (N.C.G.S. § 163-231(a)) requires a voter to mark the absentee by-mail ballot in the presence of two witnesses or one notary public, who must also sign the container return envelope as witness(es). If witnessed by a notary, the statute requires the notary public to affix their valid notarial seal to the envelope and include the phrase “Notary Public” below his or her signature.
State Board of Elections staff consulted with the North Carolina Department of the Secretary of State’s Electronic Notarization and Notary Enforcement Division regarding the validity of an incomplete notarization on the container return envelope. While the Secretary of State’s Office cannot adjudicate an absentee ballot, they provided useful information on how the notary statutes work on conjunction with our election statutes, including that there is a presumption of regularity in the absence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of the notary astatutes by the notary.1
For issues with the notary portion of the container return envelope, the following would not affect the sufficiency, validity, or enforceability of the notarial certificate itself or the underlying document:
- Notary leaves off the name of the voter or misspells the voter’s name; Notary does not write the expiration date of their commission;
- Notary does not include the name of the county or State;
- Notary does not include the seal, but does write the expiration date;
- The notary seal appears to be missing information or is hard to read;
- The notary does not include the date the notary witnessed the marking of the ballot or there is a discrepancy between the date the voter signed the application and certificate and the date the notary signed; or
- A combination of the above.2
The Secretary of State’s Office has requested that violations of G.S. § 10B-68 be reported to them.
Pursuant to G.S. § 163-231(a)(5), the notary’s signature is required. If the notary’s signature is missing, the container return envelope would be considered invalid.
If there is a discrepancy between the date the voter signed and the date the notary signed, or the notary failed to provide a date, the procedure is the same as with a discrepancy between the date the voter signed and the date a witness signed. In this case, the discrepancy alone would not invalidate the voter’s application because the date fields are not required by statute. Please remember that the notary has certified that the voter marked the ballot in the notary’s presence, and it is possible the notary may have simply written the wrong date or forgotten to write the date.
As always, if there is an issue with the witness or notary portion of the ballot, the county board should consider this in the context of the container return envelope as a whole. If there is other information to indicate fraud or other irregularities may have occurred, this information should be sent to the State Board’s Investigations Division. Fraud indicators may include receiving an unusual number of forms with a date discrepancy between the notary and voter or a notary who has completed multiple applications containing technical errors.
1 G.S. 10B-99(a) (relevant portion): “In the absence of evidence of fraud on the part of the notary, or evidence of a knowing and deliberate violation of this Article by the notary, the courts shall grant a presumption of regularity to notarial acts so that those acts may be upheld, provided there has been substantial compliance with the law.”
2 G.S. § 10B-68 (relevant portion): “(a) Technical defects, errors, or omissions in a notarial certificate shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related instrument or document.[…] (c) As used in this section, a technical defect includes those cured under G.S. 10B-37(f) and G.S. 10B67. Other technical defects include, but are not limited to, the absence of the legible appearance of the notary’s name exactly as shown on the notary’s commission as required in G.S. 10B-20(b), the affixation of the notary’s seal near the signature of the principal or subscribing witness rather than near the notary’s signature, minor typographical mistakes in the spelling of the principal’s name, the failure to acknowledge the principal’s name exactly as signed by including or omitting initials, or the failure to specify the principal’s title or office, if any.”
G.S. § 10B-67: “An erroneous statement of the date that the notary’s commission expires shall not affect the sufficiency, validity, or enforceability of the notarial certificate or the related record if the notary is, in fact, lawfully commissioned at the time of the notarial act. This section applies to notarial acts whenever performed.” G.S. 10B-37(f): “The failure of a notarial seal to comply with the requirements of this section shall not affect the sufficiency, validity, or enforceability of the notarial certificate, but shall constitute a violation of the notary’s duties.”
G.S. § 10B-37(f): “The failure of a notarial seal to comply with the requirements of this section shall not affect the sufficiency, validity, or enforceability of the notarial certificate, but shall constitute a violation of the notary’s duties.”
↓ Deficiencies in Notary Portion of Absentee Container Return Envelope: Numbered Memo 2020-07 (PDF)