North Carolina Advisory Opinions January 01, 1997: NC Att. Gen Opinion - Disclosure of Information Regarding Sole Provisional Voter

Advisory Opinion Text

November 6, 1997

Mr. Stephen T. Gheen
Chairman Gaston County Board of Elections
P.O. Box 1396
Gastonia, N.C. 28053

Re: Advisory Opinion; Disclosure of Information Regarding Sole Provisional Voter

Dear Mr. Gheen:

You have requested an advisory opinion of this office on whether the Gaston County Board of Elections must disclose identifying information on an application to vote a provisional ballot when only one provisional ballot was cast. Your inquiry arose from a tie vote in the mayoral race for the Town of Stanley in which one voter cast a provisional ballot. After a review of all pertinent information, your board concluded that the provisional ballot should be counted because the voter was a properly registered voter. Votes are recorded in such a way that it was public knowledge that there was a tie in the race for mayor before the provisional ballot was added to the totals. Your office has now received requests from the media and others for copies of the single provisional voter's application to vote provisionally.

Ordinarily, applications to vote provisionally are viewed as public records which must be disclosed pursuant to Chapter 132 of the North Carolina General Statutes. This is so because these documents are separate from the ballots and there are a sufficient quantity of provisional ballots that no vote could be attributed to any particular provisional voter. In the instant situation, however, there is only one provisional voter. That voter has an overriding and personal right to a secret ballot under Article VI, Section 5 of the North Carolina Constitution. In Withers v. Board of County Comm'rs, 196 N.C. 535, 146 S.E. 225 (1929), and Jenkins v. State Board of Elections, 180 N.C. 169(1920), the North Carolina Supreme Court held that a voter is entitled to cast a secret ballot and has the right to keep the vote secret after it is cast. Under these circumstances, the Gaston County Board of Elections is prohibited from disclosing any information that would identify the provisional voter. You may release a copy of the voter's application to vote provisionally if you remove any information that could be used to identify the voter.

Ann Reed
Senior Deputy Attorney General
Administrative Division

Susan K. Nichols
Special Deputy Attorney General
Elections Section