§ 163-104. Primaries governed by general election laws; authority of State Board to modify time schedule.
Overview of Statute
Section provides the governing election laws of the state shall have authority during primary elections.
Unless otherwise provided in this Subchapter, primary elections shall be conducted as far as practicable in accordance with the general election laws of this State. All provisions of this Subchapter and of other laws governing elections, not inconsistent with this Part and other provisions of law dealing specifically with primaries, shall apply as fully to primary elections and to the acts and things done thereunder as to general elections. Nevertheless, for purposes of primary elections the State Board may, by general rule, modify the general election law time schedule with regard to ascertaining, declaring, and reporting results.
All acts made criminal if committed in connection with a general election shall likewise be criminal, with the same punishment, when committed in a primary election held under the provisions of this Subchapter.
(1915, c. 101, s. 3; 1917, c. 218; C.S., s. 6020; 1967, c. 775, s. 1; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)
- Primary Election
1. Definition for made
A contribution is “made” during regular session if the check or other instrument is dated during the session, or if the check or other instrument is delivered to the limited contributee during session, or if the limited contributor pledges during the session to deliver the check or other instrument at a later time.
2. Definition for board
The term “board” means the State Board with respect to all candidates for State, legislative, and judicial offices and the county board of elections with respect to all candidates for county and municipal offices. The term means the State Board with respect to all statewide referenda and the county board of elections conducting all local referenda.
3. Definition for Board
Board. – Any State board, commission, council, committee, task force,
authority, or similar public body, however denominated, created by statute or
executive order, as determined and designated by the State Board, except for
those public bodies that have only advisory authority.
4. Definition for State
“State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
5. Definition for election
The term “election” means any general or special election, a first or second primary, a run-off election, or an election to fill a vacancy. The term “election” shall not include any local or statewide referendum.
6. Definition for Election
“Election” means the event in which voters cast votes in ballot items concerning proposals or candidates for office in this State or the United States. The term includes primaries, general elections, referenda, and special elections.
North Carolina Cases
Case Name: States’ Rights Democratic Party v. State Bd. of Elections
Citation: 229 N.C. 179
Case Summary: The State Board of Elections refused to print names of the political party candidates on grounds that the petitioners failed to comply with its self imposed governing rules and regulations. The court found that the Board's regulations conflicted with N.C. Gen. Stat. §§ 163-126, 163-123 and thus were void as they attempted to establish that voting in the primary election of an existing political party disabled qualified electors to sign a petition for the creation of a new party during the same year which the primary was held. Furthermore, notice of, and opportunity for, hearing on petition for creation of new political party are necessary to meet constitutional requirement of "due process of law," which hears before it condemns, proceeds on inquiry, and renders judgement only after trial. In conclusion the court found the State Board of Elections was acting as a legislative body, rather than a regulatory power and thus invalidated its imposed regulations.
Case Name: States’ Rights Democratic Party v. State Bd. of Elections
Citation: 49 S.E.2d 379
Case Summary: Law governing creation of new political parties is subject to restrictions that such rules must not conflict with any provisions of existing statutory law, even if such restriction is not specifically annexed by statute, as the constitution forbids the legislature to delegate power to make law to any other body. Specifically, the notice of and opportunity to petition for the creation of a new political party are necessary to meet the constitutional requirement of "due process of law." Here the State Board of Elections regulations, which require voters in support of a new political party to file an attachment which disclose the requisite number of signed supporters who have not voted in primary election(s) of any exiting party during the year in which the new political party petition is signed cannot be sustained merely as an administrative effectiveness measure on behalf of the State Board. The State Board of Elections has the authority to determine the registration for creation of a new political party by examination of registration books through the collection of the county boards as a matter of administrative routine before calling on signers to prove signature of the requisite number of qualified voters. However, the Supreme Court cannot determine whether primary election laws impose on qualified voters a moral obligation to such party and to therefore refrain from signing statutory petition for the creation of a its new political party during the year in which such elections are held. Thus, the statute providing for the creation of new political parties confers a legal right on any qualified voted the sight to sign such petition, irrespective of whether he/she has participated in the primary election of such existing political party during the same year in which the petition was signed. [Judicial Action] Where a petition for the creation of a new political party shows to have been signed by at least 10,000 voters and otherwise mets every statutory requirement, the Superior Court shall grant a writ of mandamus ordering the State Board of Elections to cause names of new party's nominees for President and Vice-President on the official ballot in the general election.
Case Name: McLean v. Durham County Bd. of Elections
Citation: 21 S.E.2d 842
Case Summary: The Board refused to accept the candidate's party convention nomination and denied the candidate's right to have his name printed on the official ballot as they failed to comply with provisions of the State Primary Law Code § 6018 (failure to file notice of candidacy with the Board and failure to pay filing fee). The candidate then filed an application for mandamus to compel the Board to print his name on the ballot. Pursuant to state law, power to control and regulate primaries and elections rests exclusively in the legislative branch of the state government. Thus in recognizing the State Primary Law did not conflict with any provisions of the state or federal constitution, the court denied the candidates petition. In conclusion, so long as there is no unjust discrimination, the state may, by exercising its inherent police power, suppress whatever evils may be incident to a primary or convention for the designation of candidates for election to public office.
Case Name: Ponder v. Joslin
Citation: 138 S.E.2d 143
Case PDF: Ponder v. Joslin
Case Summary: Where only protest before state board of election involving returns from multiple county senatorial districts related to one county, when amended returns from that county were certified in accordance with findings of fact and conclusions of law of state board, it would have legal duty to declare results of primary election and to certify nominee. Furthermore, the county board of elections is the proper agency to canvass returns in primary for selection of party nominees for county offices as well as general election to fill such offices. Although, the state board of elections is appropriate agency to canvass and judicially declare results of primary for nomination of candidate in senatorial district composed of more than one county. Nonetheless, the State Board of elections is permitted to go behind returns as its duty is not restricted to computation and tabulation of returns certified by various county boards. Nor is the State Board limited merely to investigating frauds and irregularities for the sole purpose of making report of such frauds and irregularities for further investigation. However, findings of fact and conclusions of law made by the State Board of elections may be reviewed in action instituted in the Superior Court of Wake county under statute, which such appellant action is not entitled to a jury trial.
Case Name: Rider v. Lenoir County
Citation: 73 S.E.2d 913
Case PDF: Rider v. Lenoir County
Case Summary: Challenging citizens contested the bond election was invalid because it had been held within one month of a primary election and that the proposed expenditures were materially in excess of the amount approved via vote of the people. The court concluded that because the citizens had not commenced suit within 30 days of publication of the election results, they were thus precluded from challenging the election under N.C. Gen. Stat. §§ 153-90, -100. However, the court determined the term "regular election for county officers" does not include a party primary. Accordingly, because the county funds functioned as a material variance from the proposition submitted, the court found no support in the record for the conclusion that the citizens were barred by laches and reversed the judgment of the lower court in favor of the county and commissioners.
Case Name: Republican Party of North Carolina v. Martin
Citation: 980 F.2d 943
Federal Circuit Court: 4th Circuit Court
Case Summary: Matter challenging the method of election North Carolina Superior Court judges. The action was dismissed as the county board of elections have no constitutional power to independently place candidate(s) on the ballot in elections, nor could the county boards remove candidate(s) as they were merely acting in ministerial capacity and could only carry out its enumerated duties. [Judicial Action] The action challenging a method of electing North Carolina Superior Court judges was dismissed against the county board of elections as the county boards have no power to independently place candidate(s) on an election ballot. Moreover, the county boards could not remove candidates from such ballot, as they merely function in ministerial capacity and could only carry out those duties as detailed by statute.