§ 163-182.14. Appeal of a final decision to superior court; appeal to the General Assembly or a house thereof.
Overview of Statute
Section recognizes the right to appeal the final decision of a protest to the Superior Court within 10 days of notice and subject to the stated rules of procedure.
Statute
(a) Final Decision.–A copy of the final decision of the State Board of Elections on an election protest shall be served on the parties personally or through delivery by U.S. mail or a designated delivery service authorized under 26 U.S.C. § 7502(f)(2) if that delivery provides a record of the date and time of delivery to the address provided by the party. A decision to order a new election is considered a final decision for purposes of seeking review of the decision.
(b) Timing of Right of Appeal.–Except in the case of a general or special election to either house of the General Assembly or to an office established by Article III of the Constitution, an aggrieved party has the right to appeal the final decision to the Superior Court of Wake County within 10 days of the date of service.
After the decision by the State Board of Elections has been served on the parties, the certification of nomination or election or the results of the referendum shall issue pursuant to G.S. 163-182.15 unless an appealing party obtains a stay of the certification from the Superior Court of Wake County within 10 days after the date of service. The court shall not issue a stay of certification unless the petitioner shows the court that the petitioner has appealed the decision of the State Board of Elections, that the petitioner is an aggrieved party, and that the petitioner is likely to prevail in the appeal.
If service is by mail or a designated delivery service, the additional time after service provided in Rule 6(e) of the North Carolina Rules of Civil Procedure shall apply to both the time for appeal and the time to obtain a stay under this subsection.
(c) Contests for General Assembly and Executive Branch Offices.–In the case of a general or special election to either house of the General Assembly or to an office established by Article III of the Constitution, an unsuccessful candidate has the right to appeal the final decision to the General Assembly in accordance with Article 3 of Chapter 120 and G.S. 163-182.13A, as appropriate.
After the decision by the State Board of Elections has been served on the parties, the certification of nomination or election shall issue pursuant to G.S. 163-182.15 unless a contest of the election is initiated pursuant to Article 3 of Chapter 120 or G.S. 163-182.13A, as appropriate.
(d) Attorney’s fees shall not be awarded against the State Board of Elections in any election protest brought under this Article.
(2001-398, s. 3; 2003-278, s. 8(b); 2005-3, s. 4; 2008-150, s. 4(a); 2009-541, s. 27; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)
- Cross-References:
- Appeal
- Election Protest
1. Definition for referendum
The term “referendum” means any question, issue, or act referred to a vote of the people of the entire State by the General Assembly, a unit of local government, or by the people under any applicable local act and includes constitutional amendments and State bond issues. The term “referendum” includes any type of municipal, county, or special district referendum and any initiative or referendum authorized by a municipal charter or local act. A recall election shall not be considered a referendum within the meaning of this Article.
2. Definition for Referendum
“Referendum” means the event in which voters cast votes for or against ballot questions other than the election of candidates to office.
3. Definition for day
The term “day” means calendar day.
4. 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.
5. 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.
6. 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.
7. Definition for person
The term “person” means any business entity, corporation, insurance company, labor union, or professional association.
8. Definition for Office
(4) Office. – The elected office for which the candidate has filed or petitioned.
(2006-155, s. 1; 2006-259, s. 48(a); 2017-6, s. 3.)
9. Definition for Protest
“Protest” means a complaint concerning the conduct of an election which, if
supported by sufficient evidence, may require remedy by one or more of the following:
a. A correction in the returns.
b. A discretionary recount as provided in G.S. 163A-1174.
c. A new election as provided in G.S. 163A-1181. (2001-398, s. 3; 2010-96, ss. 19, 35; 2017-6, s. 3.)
10. 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.
11. 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.
12. Definition for candidate
The term “candidate” means any individual who, with respect to a public office listed in G.S. 163A-1411(80), has taken positive action for the purpose of bringing about that individual’s nomination, retention, or election to public office. Examples of positive action include any of the following:
a. Filing a notice of candidacy, filing a notice to be retained, or a petition requesting to be a candidate.
b. Being certified as a nominee of a political party for a vacancy.
c. Otherwise qualifying as a candidate in a manner authorized by law.
d. Making a public announcement of a definite intent to run for public office in a particular election.
e. Receiving funds or making payments or giving the consent for anyone else to receive funds or transfer anything of value for the purpose of bringing about that individual’s nomination or election to office. Transferring anything of value includes incurring an obligation to transfer anything of value. Status as a candidate for the purpose of this Article continues if the individual is receiving contributions to repay loans or cover a deficit or is making expenditures to satisfy obligations from an election already held. Special definitions of “candidate” and “candidate campaign committee” that apply only in Part 2 of this Article are set forth in G.S. 163A-1475.
13. Definition for Candidate
“Candidate” means any individual who, with respect to a public office listed in G.S. 163A-1411(80), has filed a notice of candidacy, notice of retention, or a petition requesting to be a candidate, or has been certified as a nominee of a political party for a vacancy, or has otherwise qualified as a candidate in a manner authorized by law, or has filed a statement of organization under G.S. 163A-1412 and is required to file periodic financial disclosure statements under G.S. 163A-1418.
Cases
North Carolina Cases
Case Name: James v. Bartlett
Citation: 359 N.C. 260
Year: 2005
Case PDF: JamesvBartlett
Case Summary: The plain meaning of the statutory section setting forth qualifications to vote stipulated that voters were required to cast ballots on election day in their precincts of residence. Therefore, the Board of Elections improperly counted provisional ballots cast outside voters’ precincts of residence as state law does not permit out-of-precinct provisional ballots to be counted in elections.
Case Name: In re Protest of Whittacre
Citation: 228 N.C. App. 58
Year: 2013
Case PDF: In re Protest of Whittacre
Case Summary: Once issued, a declaration of election as contained in certificate of nomination or election conclusively settles prima facie the right of the person so ascertained and declared to be elected to be inducted into and exercise the duties of the office.