§ 163-86. Hearing on challenge.
Overview of Statute
Section stipulates the procedure to be followed in a challenge hearing.
Statute
(a) A challenge made under G.S. 163-85 shall be heard and decided before the date of the next primary or election, except that if the board finds that because of the number of challenges, it cannot hold all hearings before the date of the election, it may order the challenges to be heard and decided at the next time the challenged person appears and seeks to vote, as if the challenge had been filed under G.S. 163-87. Unless the hearing is ordered held under G.S. 163-87, it shall be heard and decided by the board of elections.
(b) At least 10 days prior to the hearing scheduled under G.S. 163-86(c), the board of elections shall mail by first-class mail, a written notice of the challenge to the challenged voter, to the address of the voter listed in the registration records of the county. The notice shall state succinctly the grounds asserted, and shall state the time and place of the hearing. If the hearing is to be held at the polls, the notice shall state that fact and shall list the date of the next scheduled election, the location of the voter’s polling place, and the time the polls will be open. A copy of the notice shall be sent to the person making the challenge and to the chairman of each political party in the county.
(c) At the time and place set for the hearing on a challenge entered prior to the date of a primary or election, the county board of elections shall explain to the challenged registrant the qualifications for registration and voting in this State. The board chairman, or in his absence the board secretary, shall then administer the following oath to the challenged registrant:
“You swear (or affirm) that the statements and information you shall give in this hearing with respect to your identity and qualifications to be registered and to vote shall be the truth, the whole truth, and nothing but the truth, so help you, God.”
After swearing the challenged registrant, the board shall examine him as to his qualifications to be registered and to vote. If the challenged registrant insists that he is qualified, the board shall tender to him the following oath or affirmation:
“You do solemnly swear (or affirm) that you are a citizen of the United States; that you are at least 18 years of age or will become 18 by the date of the next general election; that you have or will have resided in this State and in the precinct for which registered for 30 days by the date of the next primary or election; that you are not disqualified from voting by the Constitution or the laws of this State; that your name is ……., and that in such name you were duly registered as a voter of…….. precinct; and that you are the person you represent yourself to be, so help you, God.”
If the challenged registrant refuses to take the tendered oath, or submit to the board the affidavit required by subsection (d), below, the challenge shall be sustained. If the challenged registrant takes the tendered oath, the board may, nevertheless, sustain the challenge if it finds the challenged registrant is not a legal voter.
The board, in conducting hearings on challenges, shall have authority to subpoena any witnesses it may deem appropriate, and administer the necessary oaths or affirmations to all witnesses brought before it to testify to the qualifications of the persons challenged.
(d) Appearance by Challenged Registrant.–The challenged registrant shall appear in person at the challenge hearing. If he is unable to appear in person, he may be represented by another person and must tender to the county board of elections an affidavit that he is a citizen of the United States, is at least 18 years of age or will become 18 by the date of the next general election, has or will have resided in this State and in the precinct for which registered for 30 days by the date of the next primary or election, is not disqualified from voting by the Constitution or laws of this State, is named……. and was duly registered as a voter of……. precinct in such name, and is the person represented to be by the affidavit.
(1967, c. 775, s. 1; 1971, c. 1231, s. 1; 1973, c. 793, s. 35; 1979, c. 357, s. 2; 2008-150, s. 5(b); 2017-6, s. 3; 2018-146, s. 3.1(a), (b).)
1. Definition for 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.
2. Definition for political party
The term “political party” means any political party organized or operating in this State, whether or not that party is recognized under the provisions of G.S. 163A-950. A special definition of “political party organization” that applies only in Part 2 of this Article is set forth in G.S. 163A-1475. An affiliated party committee is deemed a political party for this Article as set forth in G.S. 163A-1416 and G.S. 163A-1417.
3. Definition for day
The term “day” means calendar day.
4. 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)
5. 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.
6. 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.
7. 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.
8. Definition for person
The term “person” means any business entity, corporation, insurance company, labor union, or professional association.
9. 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.
10. 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.
Cases
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: Ponder v. Joslin
Citation: 138 S.E.2d 143
Year: 1964
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: 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: 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: Farnsworth v. Jones
Citation: 441 S.E.2d 597
Year: 1994
Case PDF: Farnsworth v. Jones
Case Summary: In order to be qualified as a candidate for election to a municipal office, a person must be registered to vote in that municipality.
Case Name: Strickland v. Hill
Citation: 116 S.E.2d 463
Year: 1960
Case PDF: Stickland v. Hill
Case Summary: Challenger contended that the county board should declare and certify him as the Democratic nominee based on the returns supplied by the precinct officials. While the county board refused to declare the result of the election, it ordered a recount of the ballots based on the challenger's protest. Here the court held that the county board acted in the good faith exercise of its judgement, had authority to order and recount the ballots, and to declare and certify the challenger as the Democratic nominee pursuant to such recount.