§ 163-182.1. Principles and rules for counting official ballots.
Overview of Statute
Section provides the official rules for counting of official ballots and mandates the State Board to adopt uniform standards for the voting systems and procedures for accurate counting.
Statute
(a) General Principles That Shall Apply.–The following general principles shall apply in the counting of official ballots, whether the initial count or any recount:
(1) Only official ballots shall be counted.
(2) No official ballot shall be rejected because of technical errors in marking it, unless it is impossible to clearly determine the voter’s choice.
(3) If it is impossible to clearly determine a voter’s choice in a ballot item, the official ballot shall not be counted for that ballot item, but shall be counted in all other ballot items in which the voter’s choice can be clearly determined.
(4) If an official ballot is marked in a ballot item with more choices than there are offices to be filled or propositions that may prevail, the official ballot shall not be counted for that ballot item, but shall be counted in all other ballot items in which there is no overvote and the voter’s choice can be clearly determined.
(5) If an official ballot is rejected by a scanner or other counting machine, but human counters can clearly determine the voter’s choice, the official ballot shall be counted by hand and eye.
(6) Write-in votes shall not be counted in party primaries or in referenda, but shall be counted in general elections if all of the following are true:
a. The write-in vote is written by the voter or by a person authorized to assist the voter pursuant to G.S. 163-166.8.
b. The write-in vote is not cast for a candidate who has failed to qualify under G.S. 163-123 as a write-in candidate.
c. The voter’s choice can be clearly determined.
(b) Procedures and Standards.–The State Board of Elections shall adopt uniform and nondiscriminatory procedures and standards for voting systems. The standards shall define what constitutes a vote and what will be counted as a vote for each category of voting system used in the State. The State Board shall adopt those procedures and standards at a meeting occurring not earlier than 15 days after the State Board gives notice of the meeting. The procedures and standards adopted shall apply to all elections occurring in the State and shall be subject to amendment or repeal by the State Board acting at any meeting where notice that the action has been proposed has been given at least 15 days before the meeting. These procedures and standards shall not be considered to be rules subject to Article 2A of Chapter 150B of the General Statutes. However, the State Board shall publish in the North Carolina Register the procedures and standards and any changes to them after adoption, with that publication noted as information helpful to the public under G.S. 150B-21.17(a)(6). Copies of those procedures and standards shall be made available to the public upon request or otherwise by the State Board. For optical scan and direct record electronic voting systems, and for any other voting systems in which ballots are counted other than on paper by hand and eye, those procedures and standards shall do both of the following:
(1) Provide for a sample hand-to-eye count of the paper ballots of a statewide ballot item in every county. The presidential ballot item shall be the subject of the sampling in a presidential election. If there is no statewide ballot item, the State Board shall provide a process for selecting district or local ballot items to adequately sample the electorate. The State Board shall approve in an open meeting the procedure for randomly selecting the sample precincts for each election. The random selection of precincts for any county shall be done publicly after the initial count of election returns for that county is publicly released or 24 hours after the polls close on election day, whichever is earlier. The sample chosen by the State Board shall be of one or more full precincts, full counts of mailed absentee ballots, full counts of one or more one-stop early voting sites, or a combination. The size of the sample of each category shall be chosen to produce a statistically significant result and shall be chosen after consultation with a statistician. The actual units shall be chosen at random. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count, the hand-to-eye count shall control, except where paper ballots have been lost or destroyed or where there is another reasonable basis to conclude that the hand-to-eye count is not the true count. If the discrepancy between the hand-to-eye count and the mechanical or electronic count is significant, a complete hand-to-eye count shall be conducted.
(2) Provide that if the voter selects votes for more than the number of candidates to be elected or proposals to be approved in a ballot item, the voting system shall do all the following:
a. Notify the voter that the voter has selected more than the correct number of candidates or proposals in the ballot item.
b. Notify the voter before the vote is accepted and counted of the effect of casting overvotes in the ballot item.
c. Provide the voter with the opportunity to correct the official ballot before it is accepted and counted.
(2001-398, s. 3; 2003-226, s. 13; 2005-323, s. 5(a); 2006-192, s. 7(a); 2006-264, s. 76(b); 2013-381, ss. 30.5, 32.2; 2015-103, s. 6(b); 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)
- Cross-References:
- Ballot Counting
1. Definition for Ballot item
“Ballot item” means a single item on a ballot in which the voters are to choose between or among the candidates or proposals listed.
2. Definition for Voting system
“Voting system” means a system of casting and tabulating ballots. The term includes systems of paper ballots counted by hand as well as systems utilizing mechanical and electronic voting equipment. (2001-460, s. 3; 2001-466, s. 3(a), (b); 2002-159, s. 21(h); 2006-262, s. 4; 2013-381, ss. 30.1, 30.2; 2015-103, ss. 4(a), 5(a), 6(b); 2017-6, s. 3.)
3. Definition for Official ballot
“Official ballot” means a ballot that has been certified by the State Board of Elections and produced by or with the approval of the county board of elections. The term does not include a sample ballot or a specimen ballot.
4. Definition for day
The term “day” means calendar day.
5. 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.
§ 163A-1426. Limitation on fund-raising during legislative session. (a) Definitions (4)
6. 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.
7. 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.
8. 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.
9. Definition for person
The term “person” means any business entity, corporation, insurance company, labor union, or professional association.
10. Definition for Ballot
(Effective until January 1, 2018 or September 1, 2019 – see note) “Ballot” means an instrument on which a voter indicates that voter’s choice for a ballot item so that it may be recorded as a vote for or against a certain candidate or referendum proposal. The term “ballot” may include a paper ballot to be counted by hand, a paper ballot to be counted on an electronic
scanner, the face of a lever voting machine, the image on a direct record electronic unit, or a ballot used on any other voting system.
(Effective January 1, 2018 or September 1, 2019 – see note) “Ballot” means an instrument on which a voter indicates that voter’s choice for a ballot item so that it may be recorded as a vote for or against a certain candidate or referendum proposal, and is evidenced by an individual paper document that bears marks made by the voter by hand or through electronic
means, whether preprinted or printed in the voting enclosure.
11. 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.)
12. 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.
13. 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.
14. Definition for accepted
A contribution is “accepted” during regular session if the check or other instrument is dated during the session, or if the limited contributee receives the check or other instrument during session and does not return it within 10 days, or agrees during session to receive the check or other instrument at a later time.
§ 163A-1426. Limitation on fund-raising during legislative session. (a) Definitions (5)
15. 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.
16. 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: Wilson v. Peterson
Citation: 69 N.C. 113
Year: 1873
Case PDF: Wilson v. Peterson
Case Summary: Discovered disqualifications of electors will not affect the validity of the elected officer.
Case Name: In re Election of Cleveland County Com’rs: Protest of Crawford
Citation: 287 S.E.2d 451
Year: 1982
Case PDF: In re Cleveland County Com'rs - Protest of Crawford
Case Summary: A new election was not required where statutes were violated by failure to provide sufficient space allowing voters to write-in persons of their choice for county commissioner, because the courts finding would not alter the election outcome.
Case Name: Bray v. Baxter
Citation: 171 N.C. 6
Year: 1915
Case PDF: Bray v. Baxter
Case Summary: Pursuant to section 4347, ballot validly indicated choice for register, but contained unmarked names of two person, instead of one, for the office of recorder, was held as valid vote for register.
Case Name: In re Protest by Rocky Midgette of 2 Nov. 1993 Manteo Town Election
Citation: 450 S.E.2d 519
Year: 1994
Case PDF: In re Protest by Rocky Midgette of 2 Nov. 1993 Manteo Town Election
Case Summary: Ballots which have no name written shall not be counted for write-in candidate elections as they do not express intention of voter's choice. In determining voter's choice due to errors of write-in procedures, the court will look to the face of the ballot and to extrinsic evidence to see if the voter's choice can be determined. However, voter name must be ascertained before moving to consider such extrinsic evidence.
Out-of-State Cases
Federal Cases
Case Name: Hendon v. North Carolina State Bd. of Elections
Citation: 710 F.2d 177
Federal Circuit Court: 4th Circuit Court
Year: 1983
Case PDF: Hendon v. NC State Bd of Elections
Case Summary: Failure of ballots to comply fully with statutory requirements by failing to divide ballots into parallel columns separated by district black lines, failure to print party names in large type at the head of each party column, and failure to print instructions in heavy black type did not constitute a violation of due process. Ultimately, there was no indication that failure was other than simple negligence on part of election officials and the ballots used were not substantially confusing or misleading to voters.