Code Section
Tool bar
North Carolina > Elections And Election Laws > Qualifying to Vote (§ § 163-54 through 163-90.3) Article 8. Challenges (§ § 163-84 through 163-90.3)

§ 163-85. Challenge procedure other than on day of primary or election.

Overview of Statute

Section stipulates the general challenging procedure, including who may challenge, where challenges are to be submitted, what grounds are sufficient to challenge, and the structure of the hearing.


(a) Right to Challenge; When Challenge May Be Made.–Any registered voter of the county may challenge the right of any person to register, remain registered or vote in such county. No such challenge may be made after the twenty-fifth day before each primary, general, or special election.

(b) Challenges Shall Be Made to the County Board of Elections.–Each challenge shall be made separately, in writing, under oath and on forms prescribed by the State Board of Elections, and shall specify the reasons why the challenged voter is not entitled to register, remain registered, or vote. When a challenge is made, the board of elections shall cause the word “challenged” to be written in pencil on the registration records of the voter challenged. The challenge shall be signed by the challenger and shall set forth the challenger’s address.

(c) Grounds for Challenge.–Such challenge may be made only for one or more of the following reasons:

(1) That a person is not a resident of the State of North Carolina, or

(2) That a person is not a resident of the county in which the person is registered, provided that no such challenge may be made if the person removed his residency and the period of removal has been less than 30 days, or

(3) That a person is not a resident of the precinct in which the person is registered, provided that no such challenge may be made if the person removed his residency and the period of removal has been less than 30 days, or

(4) That a person is not 18 years of age, or if the challenge is made within 60 days before a primary, that the person will not be 18 years of age by the next general election, or

(5) That a person has been adjudged guilty of a felony and is ineligible to vote under G.S. 163-55(2), or

(6) That a person is dead, or

(7) That a person is not a citizen of the United States, or

(8) With respect to municipal registration only, that a person is not a resident of the municipality in which the person is registered, or

(9) That the person is not who he or she represents himself or herself to be.

(d) Preliminary Hearing.–When a challenge is made, the county board of election shall schedule a preliminary hearing on the challenge, and shall take such testimony under oath and receive such other evidence proffered by the challenger as may be offered. The burden of proof shall be on the challenger, and if no testimony is presented, the board shall dismiss the challenge. If the challenger presents evidence and if the board finds that probable cause exists that the person challenged is not qualified to vote, then the board shall schedule a hearing on the challenge.

(e) Prima Facie Evidence That Voter No Longer Resides in Precinct.–The presentation of a letter mailed by returnable first-class mail to the voter at the address listed on the voter registration card and returned because the person does not live at the address shall constitute prima facie evidence that the person no longer resides in the precinct.

(1967, c. 775, s. 1; 1973, c. 793, s. 34; 1979, c. 357, s. 1; 1985, c. 563, ss. 11-11.2, 11.5; c. 589, s. 60; 1993 (Reg. Sess., 1994), c. 762, s. 25; 2009-526, s. 1.2; 2009-541, s. 16.1(a); 2009-550, s. 11; 2010-96, s. 18; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)

Definition [Challenger]

Challenger. – Any qualified voter registered in the same district as the office
for which the candidate has filed or petitioned.

§ 163A-1025 (3). Definitions.

Definition [United States]

“United States,” used in the territorial sense, means the several states, the District of Columbia, Puerto Rico, the United States Virgin Islands, and any territory or insular possession subject to the jurisdiction of the United States.

§ 163A-1336 (8). Definitions.

Definition [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.

§ 163A-1411 (3). Definitions.





Definition [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.

§ 163A-152 (3). Definitions

Definition [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.

§ 163A-1336 (5). Definitions.

Definition [person]

The term “person” means any business entity, corporation, insurance company, labor union, or professional association.

§ 163A-1411 (72). Definitions.

Definition [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.

§ 163A-1411 (30). Definitions.

Definition [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.

§ 163A-1095 (4). Definition


North Carolina Cases

Case Name: Knight v. Higgs

Citation: 659 S.E.2d 742

Year: 2008

Case PDF: Knight v Higgs

Case Summary: In the legislative challenge of a voter's registration, the voter moved that the chair be recused as she had publicly announced the voter did not live in the county where he was registered. On appeal, the court determined that the failure of the board to consider the voter's motion created an issue to the propriety of the board's outcome. Ultimately, the board violated the voters due process rights and the voter was thus entitled to a new hearing.

Case Name: Lloyd v. Babb

Citation: 251 S.E.2d 843

Year: 1979

Case PDF: LloydvBabb

Case Summary: The classification between potential voters as residents entitled to vote and nonresidents not entitled to vote shall be upheld if such classifications are reasonable and not subject to a compelling state interest. However, state laws which have the effect of denying certain classes the right to vote must be supported of a compelling justification. Moreover, it would not be a denial of equal protection to make certain inquiries of students who sought to register to vote as to their respective residency which were not made of other would-be registrants. Although there is no denial of equal protection under the use of the presumption that a student who leaves his parents’ home to go to college is not domiciled in the place where the college is located for voting purposes. Students seeking registration in the local of which they went to college may be asked specific questions about their financial affairs, such as whether they had an automobile, and where their banking and business connections lay as these would not implicate voting classifications on the basis of wealth or property ownership. It was not an unjustifiable intrusion into the private affairs of students when compelling them to answer certain questions concerning their residency. Furthermore, a student who merely intends to remain at his place of schooling only until graduation is not demonstrative to their domicile for voting purposes; so long as the student intends to make his home in the community where he is physically present and has no intent to return to his former home upon graduation, he may claim the college community as his domicile for voting purposes. Additionally, registrars may use questionnaires to obtain necessary facts to determine whether a student is entitled to vote in a particular locality is permissible. In determining whether such person is a bona fide resident for voting purposes, the State has demonstrative authority and may issue domicile (or "residence") test which exclude only those necessary to preserve the basic conception of a political community. However, a voter residing in a town only three months before an election, whose name was registered by one of the candidates, is not a qualified elector. The qualifications of "domicile" for voting purposes are legal capacity, physical presence, the intent to acquire domicile which requires both an intent to abandon one's prior domicile and an intent to remain at the new domicile, and the acquisition of a new domicile which may be shown both by declarations of the registrant and by objective facts which may be obtained via inquiries directed to the registrant by the registrar. If evidence adduced at trial showed members and officials of the county board had failed to require students seeking registration to prove their domicile, a court could enjoin the board from further registering students without doing so.  The courts possesses the power to order count boards to use a specific set of questions in relation to student voter registration as it relates to their domicile. However, judicial purging of voter registrants was not an available remedy in a mandamus proceeding as it would be duplicative of the statutory process for challenging voters (challenging persons were not entitled to a judicial remedy identical to the administrative remedy). But an action of the State Board of Elections in determining voter registration does not arise from a "contested case" and therefore provides no basis for judicial review.

Case Name: State ex rel. Freeman v. Ponder

Citation: 67 S.E.2d 292

Year: 1951

Case PDF: State ex rel. Freeman v. Ponder

Case Summary: In an election for the office of county sheriff, the sheriff was elected but the incumbent refused to accede the office to the sheriff. Here, the citizens brought an action to determine the conflicting claims to the county sheriff election. The returns made by registrars and abstracts of votes for county officers, which was prepared by the county board, was in compliance with the statute and properly admitted as substantive evidence. The court here dismissed the incumbent's challenge for an increased number of peremptory challenges. Holding the general rule existed in statute which specified that the parties could challenge peremptorily six jurors without showing any cause, and such limitation shall be enforced no matter how numerous such parties could be.

Case Name: State ex rel. Ledwell v. Proctor

Citation: 19 S.E.2d 234

Year: 1942

Case PDF: State ex rel. Ledwell v. Proctor

Case Summary: The candidate challenging the election claimed some of the votes in favor of the alderman were illegal and thus should not have been counted. The candidate also alleged that the alderman unlawfully took the oath and was acting in the official capacity of alderman from such wrongful oath, thus should be removed therefrom and the candidate declared to be the duly qualified elected alderman. The candidate requested the court to declare the duly elected alderman. Upon appeal, the court held that the candidate was required to first exhaust the local election machinery before moving the court for relief. In conclusion, the candidate failed to state a cause of action because: (1) he did not allege that the returns of the precinct have been canvassed; (2) the result of the election had been judicially determined; (3) that a certificate has been issued or that the board acted arbitrarily nor in bad faith. The court refuses to be substituted for the board of elections for the purpose of canvassing elections returns from precinct officials and declaring the results thereof as the candidates need first to exhaust local election machinery.

Case Name: Hurrow v. Miller

Citation: 262 S.E.2d

Year: 1980

Case PDF: HurrowvMiller

Case Summary: The voter brought an action, contending that the challenge to his vote was made with malice and without probable cause and that the challengers knew, or should have known, that such challenge would have caused the voter trouble and expense. The court held that the voter's malicious due process claim was properly dismissed because actions based on administrative proceedings were limited to instances where there was a type of confinement or interference with the right to earn a livelihood. Here, the case failed to fall within these limitations and the challengers could not be penalized for attempting to preserve equitable and adequate voting lists. Therefore the challengers' counter for abuse of process was properly dismissed as they failed to allege the process was abused or misused.

Case Name: Fransworth v. Jones

Citation: 114 N.C.App. 182

Year: 1994

Case PDF: FransworthvJones

Case Summary: The term "residence" as used in state election laws, is synonymous with legal domicile. Although the city council candidate acquired new residence in ward and expressed his intention to remain there permanently, he maintained his previous residence and spent approximately 50% of his time there. Therefore the candidate did not change his address to that of his new residence for any election purposes and failed to meet his burden of evidence to the county board of elections.

Out-of-State Cases

Federal Cases