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1 ELECTION AND RELATED LAWS OF NORTH CAROLINA Chapter 163 Elections and Election Laws SUBCHAPTER I. TIME OF PRIMARIES AND ELECTIONS Article Section 1. Time of Primaries and Elections.TTTTTTTTTTTTTTTTTTTTTTTTTTTT163–1 2. Time of Elections to Fill Vacancies.TTTTTTTTTTTTTTTTTTTTTTTTTT163–8 SUBCHAPTER II. ELECTION OFFICERS 3. State Board of Elections. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–19 4. County Boards of Elections. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–30 4A. Political Activities by Board of Elections Members and Employees. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–38 5. Precinct Election Officials. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–41 SUBCHAPTER III. QUALIFYING TO VOTE 6. Qualifications of Voters.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–54 7. Registration of Voters [Repealed]. TTTTTTTTTTTTTTTTTTTTTTT 163–65 7A. Registration of Voters. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT163–82.1 8. Challenges.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–84 8A. HAVA Administrative Complaint Procedure.TTTTTTTTTTTTTT 163–91 SUBCHAPTER IV. POLITICAL PARTIES 9. Political Party Definition. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–96 SUBCHAPTER V. NOMINATION OF CANDIDATES 10. Primary Elections.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–104 11. Nomination by Petition.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–122 11A. Resign-to-Run [Repealed]. TTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–125 11B. Challenge to a Candidacy. TTTTTTTTTTTTTTTTTTTTTTTTTTTT163–127.1 SUBCHAPTER VI. CONDUCT OF PRIMARIES AND ELECTIONS 12. Precincts and Voting Places. TTTTTTTTTTTTTTTTTTTTTTTTTT 163–128 12A. Precinct Boundaries. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT163–132.1 13. General Instructions [Repealed]. TTTTTTTTTTTTTTTTTTTTTT 163–135 14. Voting Systems [Repealed]. TTTTTTTTTTTTTTTTTTTTTTTTTTT 163–160 14A. Voting. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–165 15. Counting Ballots, Canvassing Votes, and Certify-ing Results in Precinct and County [Repealed].TTTTTTT 163–168 15A. Counting Official Ballots, Canvassing Votes, Hearing Protests, and Certifying Results.TTTTTTTTTTTTT 163–182 16. Canvass of Returns for Higher Offices and Prepa-ration of State Abstracts [Repealed]. TTTTTTTTTTTTTTTTT 163–187 17. Members of United States House of Representa-tives. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–201 2 ELECTIONS & ELECTION LAWS Article Section 18. Presidential Electors. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–208 18A. Presidential Preference Primary Act.TTTTTTTTTTTTTTTTTT163–213.1 19. Petitions for Elections and Referenda. TTTTTTTTTTTTTTTTT 163–218 SUBCHAPTER VII. ABSENTEE VOTING 20. Absentee Ballot. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–226 21. Military Absentee Registration and Voting in Pri-mary and General Elections. TTTTTTTTTTTTTTTTTTTTTTTTTT 163–245 SUBCHAPTER VIII. REGULATION OF ELECTION CAMPAIGNS 22. Corrupt Practices and Other Offenses Against the Elective Franchise. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–259 22A. Regulating Contributions and Expenditures in Political Campaigns. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT163–278.5 22B. Appropriations from the North Carolina Political Parties Financing Fund. TTTTTTTTTTTTTTTTTTTTTTTTT 163–278.41 22C. Appropriations from the North Carolina Candi-dates Financing Fund [Repealed]. TTTTTTTTTTTTTTTT 163–278.46 22D. The North Carolina Public Campaign Fund. TTTTTTTTT 163–278.61 22E. Electioneering Communications.TTTTTTTTTTTTTTTTTTTT 163–278.80 22F. Mass Mailings and Telephone Banks: Election-eering Communications. TTTTTTTTTTTTTTTTTTTTTTTTT 163–278.90 22J. The Voter-Owned Elections Act. TTTTTTTTTTTTTTTTTTTT 163–278.95 22G. Candidate-Specific Communications.TTTTTTTTTTTTTTT 163–278.100 22H. Mass Mailings and Telephone Banks: Candidate- Specific Communications.TTTTTTTTTTTTTTTTTTTTTTT 163–278.110 22M. Legal Expense Funds.TTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–278.300 SUBCHAPTER IX. MUNICIPAL ELECTIONS 23. Municipal Election Procedure.TTTTTTTTTTTTTTTTTTTTTTTTTT 163–279 24. Conduct of Municipal Elections. TTTTTTTTTTTTTTTTTTTTTTTT 163–291 SUBCHAPTER X. ELECTION OF APPELLATE, SUPERIOR, AND DISTRICT COURT JUDGES 25. Nomination and Election of Appellate, Superior, and District Court Judges. TTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–321 3 United States Voting Rights Act of 1965 Legislation affecting individual counties and, conse-quently, the state at large may be subject to Section 5 of the federal Voting Rights Act of 1965. For information con-cerning the receipt of preclearance consult the North Car-olina Register or the appropriate agency as provided for in Chapter 120, Article 6A, § 120–30.9A et seq. SUBCHAPTER I. TIME OF PRIMARIES AND ELECTIONS Article 1 Time of Primaries and Elections Section 163–1. Time of regular elections and primaries. 163–2. Repealed. 163–3 to 163–7. Reserved. § 163–1. Time of regular elections and primaries (a) Unless otherwise provided by law, elections for the officers listed in the tabulation contained in this section shall be conducted in all election precincts of the territorial units specified in the column headed ‘‘Jurisdiction’’ on the dates indicated in the col-umn headed ‘‘Date of Election.’’ Unless otherwise provided by law, officers shall serve for the terms specified in the column headed ‘‘Term of Office.’’ (b) On Tuesday next after the first Monday in May preceding each general election to be held in November for the officers referred to in subsection (a) of this section, there shall be held in all election precincts within the territory for which the officers are to be elected a primary election for the purpose of nominating candidates for each political party in the State for those offices, and nonpartisan candidates as to offices elected under the provi-sions of Article 25 of this Chapter. (c) On Tuesday next after the first Monday in November in the year 1968, and every four years thereafter, or on such days as the Congress of the United States shall direct, an election shall be held in all of the election precincts of the State for the election of electors of President and Vice–President of the United States. The number of electors to be chosen shall be equal to the number of Senators and Representatives in Congress to which this State may be entitled. Presidential electors shall not be nominated by pri-mary election; instead, they shall be nominated in a State conven-tion of each political party as defined in G.S. 163–96 unless otherwise provided by the plan of organization of the political 4 § 163–1 ELECTIONS & ELECTION LAWS party; provided, that in the case of a candidate for President of the United States who has qualified to have his name printed on the general election ballot as an unaffiliated candidate under G.S. 163–122, that candidate shall nominate presidential electors. One presidential elector shall be nominated from each congressional district and two from the state-at-large, and in addition, the State convention of each party and the unaffiliated candidate shall each nominate first and second alternate electors who shall serve if their slate is elected as provided by G.S. 163–209 and if there is a vacancy as provided by G.S. 163–210. OFFICE JURISDICTION DATE OF ELEC- TERM OF OFFICE TION Governor State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Lieutenant Gover- State Tuesday next after Four years, from nor the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Secretary of State State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Auditor State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Treasurer State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Superintendent of State Tuesday next after Four years, from Public Instruc- the first Monday first day of Janu-tion in November ary next after 1968 and every election four years there-after Attorney General State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Commissioner of State Tuesday next after Four years, from Agriculture the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after 5 TIME OF PRIMARIES AND ELECTIONS § 163–1 OFFICE JURISDICTION DATE OF ELEC- TERM OF OFFICE TION Commissioner of State Tuesday next after Four years, from Labor the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Commissioner of State Tuesday next after Four years, from Insurance the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after All other State offi- State Tuesday next after Four years, from cers whose the first Monday first day of Janu-terms last for in November ary next after four years 1968 and every election four years there-after All other State offi- State Tuesday next after Two years, from cers whose the first Monday first day of Janu-terms are not in November ary next after specified by law 1968 and every election two years there-after State Senator Senatorial district Tuesday next after Two years the first Monday in November 1968 and every two years there-after Member of State Representative dis- Tuesday next after Two years House of Repre- trict the first Monday sentatives in November 1968 and every two years there-after Justices and State At the regular elec- Eight years, from Judges of the Ap- tion for mem- first day of Janu-pellate Division bers of the Gen- ary next after eral Assembly election immediately pre-ceding the termi-nation of each regular term Judges of the supe- Superior Court At the regular elec- Eight years, from rior courts District tion for mem- first day of Janu-bers of the Gen- ary after next eral Assembly election immediately pre-ceding the termi-nation of each regular term Judges of the dis- District court dis- At the regular elec- Four years, from trict courts trict tion for mem- the first day in bers of the Gen- January next af-eral Assembly ter election immediately pre-ceding the termi-nation of each regular term District Attorney District Attorney At the regular elec- Four years, from district tion for mem- first day of Janu- 6 § 163–1 ELECTIONS & ELECTION LAWS OFFICE JURISDICTION DATE OF ELEC- TERM OF OFFICE TION bers of the Gen- ary next after eral Assembly election immediately pre-ceding the termi-nation of each regular term Members of House Congressional dis- Tuesday next after Two years of Representa- trict, except as the first Monday tives of the Con- modified by G.S. in November gress of the Unit- 163-104 1968 and every ed States two years there-after United States Sen- State At the regular elec- Six years ators tion immediately preceding the termination of each regular term County commis- County At the regular elec- Two years, from sioners tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of each regular term Clerk of superior County At the regular elec- Four years, from court tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of each regular term Register of deeds County At the regular elec- Four years, from tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of each regular term Sheriff County At the regular elec- Four years, from tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of each regular term Coroner County At the regular elec- Four years, from tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of a regu-lar term County treasurer County Tuesday next after Two years, from (in counties in the first Monday the first Monday which elected) in November in December 1968 and every next after elec- 7 TIME OF PRIMARIES AND ELECTIONS § 163–1 OFFICE JURISDICTION DATE OF ELEC- TERM OF OFFICE TION two years there- tion after All other county of- County Tuesday next after Two years, from ficers to be elect- the first Monday the first Monday ed by the people in November in December 1968 and every next after elec-two years there- tion after (d) If primaries for the State Senate or State House of Repre-sentatives are temporarily moved from the date provided in sub-section (b) of this section for any election year, all primaries shall be held on the same day. Added by Laws 1967, c. 775, § 1. Amended by Laws 1967, c. 1264; Laws 1967, c. 1271; Laws 1969, c. 44, § 80; Laws 1971, c. 170; Laws 1973, c. 793, § 93; Laws 1975, c. 844, § 1; Laws 1977, c. 265, § 1; Laws 1977, c. 661, § 1; Laws 1981, c. 504, §§ 11 to 13; Laws 1985, c. 768, § 16 to 17.1; Laws 1991 (Reg. Sess., 1992), c. 782, § 1; Laws 1993 (Reg. Sess., 1994), c. 738, § 2, eff. July 13, 1994; Laws 1996 (2nd Ex. Sess.), c. 9, § 2; S.L. 2003–434 (Ex. Sess.), § 6, eff. Nov. 25, 2003; S.L. 2004–127, § 12, eff. July 26, 2004; S.L. 2005–425, § 3.2, eff. Sept. 22, 2005. Historical and Statutory Notes Laws 1996, 2 Ex. Sess., c. 9, § 23, provides: ‘‘Part 1 of this act becomes effective only if Parts 1 and 2 of this act are both effective under section 5 of the Voting Rights Act of 1965.’’ Laws 1996, 2 Ex. Sess., c. 9, § 24, provides, in part: ‘‘Part 1 of this act is effective upon ratification, and applies beginning with the 1996 elections, except that Sections 1 and 2 of this act shall be applied to the 1994 general election and the re-sults of that election validated and con-firmed under those sectionsTTTT’’ The U.S. Department of Justice pre-cleared Parts 1 and 2 of Laws 1996, 2 Ex. Sess., c. 9, in a letter dated Oct. 1, 1996. 2002 Legislation S.L. 2002–21 (Ex. Sess.), §§ 1(a) to 2, eff. July 16, 2002, provide: ‘‘Section 1.(a) Notwithstanding G.S. 163–1(b), the date of the primary elec-tion in 2002 shall be September 10, 2002. ‘‘Section 1.(b) In order to accommo-date the scheduling of the 2002 primary on September 10, 2002, and in order to comply with the requirements of Sec-tion 5 of the Voting Rights Act of 1965 and any court orders, and in order to comply with any objections interposed under Section 5, the State Board of Elections may issue temporary orders that may change, modify, delete, amend, or add to any statute contained in Chapter 163 of the General Statutes, any rules contained in Title 8 of the North Carolina Administrative Code, or any other election regulation or guide-line that may affect the 2002 primaries and general elections. These temporary orders are only effective for the 2002 primary and 2002 general election. These orders shall include a primary election schedule. ‘‘Section 1.(c) Notwithstanding G.S. 163–111 or any local act, in 2002 only, the result of the primary shall be deter-mined by a plurality and no second primary shall be held. Any runoff elec-tion for local office that might by local act have been held on the date of the second primary shall instead be held on the date of the general election. If there is a tie in a primary in 2002, the result shall be determined in accor-dance with G.S. 163–111(f) under the same rule as if there had been a tie in a second primary. ‘‘Section 1.(d) The authority to adopt orders also extends to any elections originally scheduled to be held on May 7, 2002, any elections ordered by the State Board of Elections to be held on the date of a county primary that were originally scheduled to be held on May 7, 2002, or any elections to be held on 8 § 163–1 ELECTIONS & ELECTION LAWS the date of the second primary. If any municipality had its election scheduled under G.S. 160A–23.1(d)(2) to be on the date of the second primary in 2002, the election shall instead be held on the date of the general election in 2002. ‘‘Section 1.(e) The orders shall pro-vide for candidate filing for member of the State Senate and State House of Representatives to open as soon as practicable. ‘‘Section 1.(f) The State Board of Elections may set a period of time for unaffiliated candidates who wish to ob-tain ballot access by petition, under the provisions of G.S. 163–122, for legisla-tive races in districts used in new legis-lative filings, to obtain and submit signed petitions for such purpose. Any unaffiliated candidate for a legislative seat, in a district used under a previous-ly approved legislative redistricting plan, who had submitted a petition in a timely manner under the provisions of G.S. 163–122, shall have the right under any State Board plan to have any valid voter signatures contained in the previ-ously approved petition, that meet the residency requirements of the new dis-trict, to be considered a part of any new petition to obtain ballot access for a legislative seat in that new district. ‘‘Section 1.(g) The authority granted by this section shall be exercised only when needed to ensure the orderly and timely operations of the electoral pro-cess, the public good, and any valid interest of voters, candidates, and of-ficeholders in order to accommodate the compressed schedule necessitated by holding the primary elections at such a late date. All orders of the State Board issued under this section shall be presumed to be reasonable and to serve the public interest. ‘‘Section 1.(h) Orders issued under this section are not rules subject to the provisions of Chapter 150B of the Gen-eral Statutes. Orders issued under this section shall, however, be published in the North Carolina Register as quickly as possible. ‘‘Section 1.(i) The times to publish notice of a bond referendum required by G.S. 159–61(c) shall not apply to any bond referendum held on the date of the 2002 statewide primary. The local government unit holding the bond refer-endum on that date shall comply with the times to publish notice of the elec-tion prescribed by the State Board of Elections pursuant to this section. ‘‘Section 1.(j) The provisions of G.S. 159–61(b) that provide that a bond ref-erendum may not be held within 30 days before or 10 days after a statewide primary, election, or referendum shall not apply to any bond referendum pre-viously called to be conducted on a date that is within 30 days before or 10 days after the date selected as the date for the 2002 statewide primary. ‘‘Section 1.(k) As used in this section, ‘‘order’’ also includes guidelines and di-rectives. ‘‘Section 1.(l ) Any orders issued un-der this section become void 10 days after the final certification of all elec-tions that were originally scheduled to be held in 2002. ‘‘This section expires 10 days after the final certification of all elections that were originally scheduled to be held in 2002. ‘‘Section 1.1. Notwithstanding G.S. 163–106(h), any person who filed a no-tice of candidacy under G.S. 163–106(c) during the filing period in 2002 for an office other than member of the State Senate or member of the State House of Representatives and did not withdraw that notice of candidacy before the fil-ing deadline may not file a notice of candidacy as a member of the State Senate or member of the State House of Representatives unless either of the fol-lowing applies: ‘‘(1) If that person was declared the nominee of the party under G.S. 163–110, that person resigns the nomi-nation (in which case the vacancy in nomination shall be filled in accordance with G.S. 163–114). ‘‘(2) If that person is in a contested primary, that person withdraws the no-tice of candidacy. That notice of candi-dacy may be withdrawn notwithstand-ing the requirements of G.S. 163–106(e) that it be withdrawn prior to the filing deadline for that office. In the case of any such withdrawal, the appropriate board of election shall reopen filing for three days under the usual procedures of G.S. 163–112 notwithstanding the time of and reason for the withdrawal. ‘‘Section 2. If any members of any county board of education are elected at the primary election and take office un-der a local act in July after the primary, in 2002 only, they shall instead take office on the same day in December after the primary, and the terms of any such member which would otherwise expire in July of 2002 are extended ac-cordingly.’’ 9 TIME OF PRIMARIES AND ELECTIONS § 163–1 Note 1 2003 Legislation S.L. 2003–434 (Ex. Sess.), § 6, eff. Nov. 25, 2003, added subsec. (d). S.L. 2003–434 (Ex. Sess.), § 16, pro-vides: ‘‘Sections 1, 2, 3, 4, and 5 of this act are effective when it becomes law. The remainder of this act is effective when it becomes law and applies to any case pending on or filed after that date, to any case regardless of when the case was filed, and to any action of a court affecting the validity of an act appor-tioning or redistricting State legislative or congressional districts.’’ 2004 Legislation S.L. 2004–127, § 12, eff. July 26, 2004, in subsec. (b), inserted ‘‘, and nonpartisan candidates as to offices elected under the provisions of Article 25 of this Chapter’’. 2005 Legislation S.L. 2005–425, §3.2, eff. Sept. 22, 2005, substituted ‘‘day in January next’’ for ‘‘Monday in December next’’ in the chart entry for ‘‘Judges of the district court.’’ S.L. 2005–425, § 4, provides: ‘‘Sections 1.1 and 1.2 of this act be-come effective January 1, 2006, and ap-ply to fees assessed or collected on or after that date. Section 2 becomes ef-fective January 1, 2006, and applies to cases filed on or after that date. Sec-tions 3.1 and 3.2 of this act are effective when they become law. Judges elected in 2006 and thereafter take office ac-cordingly, and as provided by Section 10 of Article VI of the North Carolina Constitution and G.S. 128–7, those in office on the first Monday in December of 2006 or 2008 shall continue until their successors’ terms begin and are duly qualified.’’ Cross References Election and terms of office of sanitary district boards, see § 130A–50. Notes of Decisions Construction and application 2 Election of judges 3 Validity 1 1. Validity Political party could bring action challenging North Carolina’s method of electing state trial court judges under equal protection clause of Fourteenth Amendment, even though judges were not representatives in sense that they represented interests of their constitu-ents; political party raised vote dilution, rather than one-person, one-vote, issue, electorate undoubtedly considered broad philosophical views of judicial candidates when voting, and very real possibility existed that party affiliation reflected judicial philosophy and ulti-mately outcome of judicial decisions. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certiorari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Con-stitutional Law O 923 For purposes of action challenging method of electing North Carolina state trial court judges as political gerryman-dering in violation of equal protection clause of Fourteenth Amendment, polit-ical party constituted ‘‘identifiable polit-ical group,’’ even though political party included some members of opposing party as plaintiffs, where complaint stated that those plaintiffs had and would continue to vote for political par-ty’s candidates for state trial court judgeships. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certio-rari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Constitutional Law O 923 Political party could not bring action challenging North Carolina’s method of electing state trial court judges under First Amendment’s free speech provi-sions where there was no indication that North Carolina laws subjected par-ty members to threat of civil or criminal penalties for engaging in political ex-pression. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certio-rari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Constitutional Law O 863; Con-stitutional Law O 859 Political party failed to state claim that North Carolina’s method of elect-ing state trial court judges violated First Amendment rights of free speech and association where political party alleged no direct, state-imposed impediments on judicial elections or that its members 10 § 163–1 ELECTIONS & ELECTION LAWS Note 1 were prevented from participating, as individuals or as a group, in election of state trial court judges; First Amend-ment protects right to cast effective vote by prohibiting restrictions on ballot ac-cess that impair ability of citizens to express their political references, or that limit opportunity for citizens to unite in support of candidate of their choice, but does not insure equal weigh-ing of votes. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certio-rari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Constitutional Law O 2054; Constitutional Law O 1477 2. Construction and application The provisions of election law setting up machinery to be followed in ascer-taining and declaring successful candi-date in an election are applicable to all municipal elections. Ledwell v. Proc-tor, 1942, 19 S.E.2d 234, 221 N.C. 161. Elections O 236 Const. Art. 7, § 3, providing that the first division of counties into townships shall be by the county commissioners, does not authorize them to make any subsequent division or alteration. The subsequent creation or alteration of townships is left with the legislature. Grady v. Lenoir County Com’rs, 1876, 74 N.C. 101. Towns O 6 3. Election of judges Method of electing state trial court judges in North Carolina did not re-quire political party’s judicial candi-dates to choose between accepting public employment and taking action contrary to their chosen political affili-ation, even though method of electing judges allegedly prevented political party’s judicial candidates from being elected; although political party affilia-tion may be appropriate consideration if government, as hiring authority, re-quires affiliation with particular politi-cal party as qualification for perform-ance of position, state trial court judges were elected public officials, rather than employees hired by govern-ment. Republican Party of North Car-olina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, cer-tiorari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Judges O 3 Political party sufficiently alleged ac-tual discriminatory effect of North Car-olina’s method of electing state trial court judges where political party’s complaint set forth data revealing that, in 1984 and 1986 general elections, of 40 judgeships up for election, only four were contested by political party’s can-didates and that, since 1968, of approxi-mately 220 judgeships up for election, political party offered candidate in only ten, and complaint asserted that method of electing state trial court judges di-minished campaign contributions for those elections because potential con-tributors were unwilling to donate mon-ey or other resources to candidate who was perceived to be almost certain los-er. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehear-ing denied 991 F.2d 1202, certiorari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Civil Rights O 1395(1) Political party stated prima facie case of vote dilution brought about by politi-cal gerrymandering with respect to North Carolina’s method of electing state trial court judges in state-wide, rather than judicial district-wide, elec-tions where political party’s complaint alleged that repeated efforts to change from state-wide to district-wide elec-tions were rejected by opposition-con-trolled state general assembly, that only one candidate for state trial court judge running on political party’s ticket had been elected since turn of century, that state trial court judges rarely, if ever, performed judicial duties outside the re-spective districts, and that majority of voters voted for judicial candidates from other parts of state without know-ing anything about candidates other than party affiliation as indicated on ballot. Republican Party of North Car-olina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certio-rari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Constitutional Law O 3658(5) § 163–2. Repealed by S.L. 2001–460, § 2, eff. Jan. 1, 2002 Historical and Statutory Notes See, now, § 163–166. 11 TIME OF PRIMARIES AND ELECTIONS § 163–9 §§ 163–3 to 163–7. Reserved Article 2 Time of Elections to Fill Vacancies Section 163–8. Filling vacancies in State executive offices. 163–9. Filling vacancies in State and district judicial offices. 163–10. Filling vacancy in office of district attorney. 163–11. Filling vacancies in the General Assembly. 163–12. Filling vacancy in United States Senate. 163–13. Filling vacancy in United States House of Representatives. 163–14 to 163–18. Reserved. § 163–8. Filling vacancies in State executive offices If the office of Governor or Lieutenant Governor shall become vacant, the provisions of G.S. 147-11.1 shall apply. If the office of any of the following officers shall be vacated by death, resignation, or otherwise than by expiration of term, it shall be the duty of the Governor to appoint another to serve until his successor is elected and qualified: Secretary of State, Auditor, Treasurer, Superinten-dent of Public Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and Commissioner of Insur-ance. Each such vacancy shall be filled by election at the first election for members of the General Assembly that occurs more than 60 days after the vacancy has taken place, and the person chosen shall hold the office for the remainder of the unexpired four-year term: Provided, that when a vacancy occurs in any of the offices named in this section and the term expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill the vacancy for the unexpired term of the office. Upon the occurrence of a vacancy in the office of any one of these officers for any of the causes stated in the preceding para-graph, the Governor may appoint an acting officer to perform the duties of that office until a person is appointed or elected pursuant to this section and Article III, Section 7 of the State Constitution, to fill the vacancy and is qualified. Added by Laws 1967, c. 775, § 1. Amended by Laws 1981, c. 504, § 14; Laws 1983, c. 324, § 1; Laws 1985 (Reg. Sess., 1986), c. 920, § 5. § 163–9. Filling vacancies in State and district judicial offices (a) Vacancies occurring in the offices of Justice of the Supreme Court, judge of the Court of Appeals, and judge of the superior court for causes other than expiration of term shall be filled by appointment of the Governor. An appointee to the office of Justice of the Supreme Court or judge of the Court of Appeals shall hold office until January 1 next following the election for members of 12 § 163–9 ELECTIONS & ELECTION LAWS the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held for an eight-year term and until a successor is elected and qualified. (b) Except for judges specified in the next paragraph of this subsection, an appointee to the office of judge of superior court shall hold his place until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill the unexpired term of the office. Appointees for judges of the superior court from any district: (1) With only one resident judge; or (2) In which no county is subject to section 5 of the Voting Rights Act of 1965, shall hold the office until the next election of members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill an eight-year term. (c) When the unexpired term of the office in which the vacancy has occurred expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill that vacancy for the unexpired term of the office. (d) Vacancies in the office of district judge which occur before the expiration of a term shall not be filled by election. Vacancies in the office of district judge shall be filled in accordance with G.S. 7A–142. Added by Laws 1967, c. 775, § 1. Amended by Laws 1969, c. 44, § 81; Laws 1979, c. 494; Laws 1981, c. 504, § 15; Laws 1981, c. 763, § 3; Laws 1985 (Reg. Sess., 1986), c. 920, § 6; Laws 1995, c. 98, § 1, eff. May 23, 1995; Laws 1996 (2nd Ex. Sess.),c. 9, § 21. Historical and Statutory Notes Laws 1995, c. 98, §§ 2 and 3, pro-vide: ‘‘Section 2. The terms of office of all duly elected judges of the Supreme Court and Judges of the Court of Ap-peals who are not already serving full eight-year terms of office are as follows: ‘‘(1) For the Court of Appeals seat now occupied by Joseph R. John, Sr., no election shall be held in 1998 for a full term, and the holder of that seat shall serve until a successor is elected in 2000 and qualifies. The succeeding term begins January 1, 2001. ‘‘(2) For the Court of Appeals seat now occupied by Ralph A. Walker, no election shall be held in 1998 for a full term, and the holder of that seat shall serve until a successor is elected in 2002 and qualifies. The succeeding term begins January 1, 2003. ‘‘(3) For the Court of Appeals seat now occupied by Mark D. Martin, no election shall be held in 1998 for a full term, and the holder of that seat shall serve until a successor is elected in 2002 and qualifies. The succeeding term begins January 1, 2003. ‘‘Section 3. If any provision of this act is held invalid by a court of compe-tent jurisdiction, such holding shall in-validate the remaining provisions of this act, so that its provisions are insepara-ble.’’ Laws 1996, 2 Ex. Sess., c. 9, § 21, provides, in part, that this section ‘‘is 13 TIME OF PRIMARIES AND ELECTIONS § 163–9 Note 1 effective upon ratification and applies to vacancies to be filled by elections con-ducted on or after that date’’. Notes of Decisions Validity 1 1. Validity General Assembly’s creation of three additional Court of Appeals judgeships, effective upon appointment by gover-nor, with initial appointive terms of ap-proximately four years, exceeded limita-tions of state constitutional provisions that required judicial appointees to run at next general election for members of General Assembly, and that judges serve eight-year terms following elections, even though creation of judgeships themselves was not unconstitutional, and legislature indicated that office of judge of Court of Appeals would not be created until appointment of judge so as to sidestep requirement that elections be held, given that office had to exist before it could be filled, and legislature could not delay effective date of judge-ships so as to circumvent constitutional requirements. Pope v. Easley, 2001, 354 N.C. 544, 556 S.E.2d 265. Judges O 2; Judges O 7 Section of statute creating three addi-tional judgeships on Court of Appeals was severable from unconstitutional section that delayed effective date of judgeships and failed to require elec-tions as mandated by state constitution, given that legislature specifically stated that sections of statute were severable, which evinced clear intent to allow en-forcement of section that created judge-ships, even in absence of sections that dealt with appointments and terms. Pope v. Easley, 2001, 354 N.C. 544, 556 S.E.2d 265. Statutes O 64(3) Statute providing that person elected to fill vacancy on superior court, Court of Appeals, or Supreme Court serves only unexpired portion of vacated term did not violate provision of North Car-olina Constitution providing that judges ‘‘shall hold office for terms of eight years.’’ Brannon v. North Carolina State Bd. of Elections, 1992, 416 S.E.2d 390, 331 N.C. 335. Judges O 8 Securing uniformity in beginning of terms of office for superior court judges was adequate public purpose to sustain under State Constitution statute provid-ing for that uniformity by delaying elec-tion for nine superior court judges. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Judges O 7 Statute which postponed election date for eight superior court judges for two years and for ninth judge for four years did not violate provision of Constitution stating that superior court judges shall hold office for term of eight years and until their successors are elected and qualified; legislature merely eliminated staggered terms within multi-seat judi-cial districts by creating one-time inter-im or hiatus between certain terms of office. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Judges O 7 One-time delay in certain judicial elections created by statute postponing election of certain superior court judges so as to eliminate staggered terms did not violate right of citizens to vote guar-anteed by State Constitution. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Elections O 10.5; Judges O 3 Where terms of incumbent superior court judges end without successors having been elected and qualified, new terms of office have not begun, and Constitution’s ‘‘hold over’’ provision op-erates and allows incumbents to contin-ue serving interim; thus, by allowing nine judges to hold over in office be-yond their terms’ expiration, legislature did not unconstitutionally use authority of governor to make judicial appoint-ments for vacancies in judicial offices. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Consti-tutional Law O 2391; Judges O 9 Delaying election of superior court judges in certain judicial districts did not confer separate emolument upon in-cumbents in violation of State Constitu-tion; any benefit to incumbent judges was incidental and subordinate to legiti-mate public benefits obtained by delay-ing elections. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Judges O 22(6) 14 § 163–10 ELECTIONS & ELECTION LAWS § 163–10. Filling vacancy in office of district attorney Any vacancy occurring in the office of district attorney for causes other than expiration of term shall be filled by appointment of the Governor. An appointee shall hold his place until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill the unexpired term of the office: Provided, that when the unexpired term of the office in which the vacancy has occurred expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill that vacancy for the unexpired term of the office. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 47, § 2; Laws 1977, c. 265, § 2; Laws 1981, c. 504, § 16; Laws 1985 (Reg. Sess., 1986), c. 920, § 7. § 163–11. Filling vacancies in the General Assembly (a) If a vacancy shall occur in the General Assembly by death, resignation, or otherwise than by expiration of term, the Governor shall immediately appoint for the unexpired part of the term the person recommended by the political party executive committee provided by this section. The Governor shall make the appoint-ment within seven days of receiving the recommendation of the appropriate committee. If the Governor fails to make the appoint-ment within the required period, he shall be presumed to have made the appointment and the legislative body to which the appointee was recommended is directed to seat the appointee as a member in good standing for the duration of the unexpired term. (b) If the district consists solely of one county and includes all of that county, the Governor shall appoint the person recommended by the county executive committee of the political party with which the vacating member was affiliated when elected, it being the party executive committee of the county which the vacating member was resident. (c) If the district consists solely of one county but includes less than all of the county, the Governor shall appoint the person recommended by the county executive committee of the political party with which the vacating member was affiliated when elected, it being the county executive committee of the county which the vacating member was resident, provided that in voting only those county executive committee members who reside in the district shall be eligible to vote. (d) If the district consists of more than one county, the Gover-nor shall appoint for the unexpired portion of the term the person recommended by the State House of Representatives district com-mittee or the Senatorial district committee of the political party 15 TIME OF PRIMARIES AND ELECTIONS § 163–12 with which the vacating member was affiliated when elected. In the case where all of a county is included within a district, the county convention or county executive committee of that political party shall elect or appoint at least one member from that county to serve on the State House of Representatives district executive committee or State Senatorial district executive committee. In the case where only part of a county is included within a district, the county convention or county executive committee of that political party shall elect or appoint at least one member from that county to serve on the State House of Representatives district committee or the State Senatorial district committee, but only the delegates to the county convention or the members of the county executive committee who reside in the district may vote in electing the district committee member. When the State House of Representa-tives district committee or the State Senatorial district committee meets, a member shall be entitled to cast for his county (or the part of his county within the district) one vote for each 300 persons or major fraction thereof residing within that county, or in the case where less than the whole county is in the district one vote for each 300 persons or major fraction thereof residing in that part of the district within the county. A county convention or county executive committee may elect more than one member to the district committee but in the event that more than one member is selected from that county, then each member shall cast an equal share of the votes allotted to the county. (e) No person is eligible for appointment to fill a vacancy in the Senate or the House of Representatives under this section, unless that person would have been qualified to vote as an elector for that office if an election were to be held on the date of appointment. This section is intended to implement the provisions of Section 8 of Article VI of the Constitution. Added by Laws Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 35; Laws 1981, c. 504, § 17; Laws 1981 (Reg. Sess., 1992), c. 1265, § 3; S.L. 2007–391, § 27(b), eff. Aug. 19, 2007. Historical and Statutory Notes 2007 Legislation S.L. 2007–391, § 27(b), added subsec. (e). S.L. 2007–391, § 27(c), provides: ‘‘This section is effective when it be-comes law and applies only to appoint-ments made on or after that date.’’ § 163–12. Filling vacancy in United States Senate Whenever there shall be a vacancy in the office of United States Senator from this State, whether caused by death, resignation, or otherwise than by expiration of term, the Governor shall appoint to fill the vacancy until an election shall be held to fill the office. The Governor shall issue his writ for the election of a Senator to 16 § 163–12 ELECTIONS & ELECTION LAWS be held at the time of the first election for members of the General Assembly that is held more than 60 days after the vacancy occurs. The person elected shall hold the office for the remainder of the unexpired term. The election shall take effect from the date of the canvassing of the returns. Added by Laws 1967, c. 775, § 1. Amended by Laws 1981, c. 504, § 18; Laws 1985, c. 759, § 2; Laws 1985, c. 768, § 18. § 163–13. Filling vacancy in United States House of Repre-sentatives (a) Special Election.—If at any time after expiration of any Congress and before another election, or if at any time after an election, there shall be a vacancy in this State’s representation in the House of Representatives of the United States Congress, the Governor shall issue a writ of election, and by proclamation fix the date on which an election to fill the vacancy shall be held in the appropriate congressional district. (b) Nominating Procedures.—If a congressional vacancy occurs beginning on the tenth day before the filing period ends under G.S. 163-106(c) preceding the next succeeding general election, candi-dates for the special election to fill the vacancy shall not be nominated in primaries. Instead, nominations may be made by the political party congressional district executive committees in the district in which the vacancy occurs. The chairman and secretary of each political party congressional district executive committee nominating a candidate shall immediately certify his name and party affiliation to the State Board of Elections so that it may be printed on the special election ballots. If the congressional vacancy occurs before the tenth day before the filing period ends under G.S. 163-106(c) prior to the next succeeding general election, the Governor shall call a special primary for the purpose of nominating candidates to be voted on in a special election called by the Governor in accordance with the provisions of subsection (a) of this section. Such a primary election shall be conducted in accordance with the general laws governing primaries, except that the opening and closing dates for filing notices of candidacy with the State Board of Elections shall be fixed by the Governor in his call for the special primary. The Governor may also fix the absentee voting period for the special election and for the special first primary, but such period shall not be less than 30 days. Added by Laws 1967, c. 775, § 1. Amended by Laws 1985, c. 759, §§ 3 to 5. Cross References Special provisions for vacancies in certain offices, see § 163–115. §§ 163–14 to 163–18. Reserved 17 SUBCHAPTER II. ELECTION OFFICERS Article 3 State Board of Elections Section 163–19. State Board of Elections; appointment; term of office; vacan-cies; oath of office. 163–20. Meetings of Board; quorum; minutes. 163–21. Compensation of Board members. 163–22. Powers and duties of State Board of Elections. 163–22.1. Repealed. 163–22.2. Power of State Board to promulgate temporary rules and regulations. 163–22.3. State Board of Elections littering notification. 163–23. Powers of chairman in execution of Board duties. 163–24. Power of State Board of Elections to maintain order. 163–25. Authority of State Board to assist in litigation. 163–26. Executive Director of State Board of Elections. 163–27. Executive Director to be appointed by Board. 163–27.1. Emergency powers. 163–28. State Board of Elections independent agency. 163–29. Reserved. § 163–19. State Board of Elections; appointment; term of office; vacancies; oath of office All of the terms of office of the present members of the State Board of Elections shall expire on May 1, 1969, or when their successors in office are appointed and qualified. The State Board of Elections shall consist of five registered voters whose terms of office shall begin on May 1, 1969, and shall continue for four years, and until their successors are appointed and qualified. The Governor shall appoint the members of this Board and likewise shall appoint their successors every four years at the expiration of each four-year term. Not more than three members of the Board shall be members of the same political party. The Governor shall appoint the members from a list of nominees submitted to him by the State party chairman of each of the two political parties having the highest number of registered affiliates as reflected by the latest registration statistics published by the State Board of Elections. Each party chairman shall submit a list of five nominees who are affiliated with that political party. Any vacancy occurring in the Board shall be filled by the Governor, and the person so appointed shall fill the unexpired term. The Governor shall fill the vacancy from a list of three nominees submitted to him by the State party chairman of the political party that nominated the vacating member as provided by 18 § 163–19 ELECTIONS & ELECTION LAWS the preceding paragraph. The three nominees must be affiliated with that political party. At the first meeting held after new appointments are made, the members of the State Board of Elections shall take the following oath: ‘‘I, TTTTTTTTTT, do solemnly swear (or affirm) that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina, and to the constitutional powers and authorities which are or may be estab-lished for the government thereof; that I will endeavor to support, maintain and defend the Constitution of said State, and that I will well and truly execute the duties of the office of member of the State Board of Elections according to the best of my knowledge and ability, according to law, so help me, God.’’ After taking the prescribed oath, the Board shall organize by electing one of its members chairman and another secretary. No person shall be eligible to serve as a member of the State Board of Elections who holds any elective or appointive office under the government of the United States, or of the State of North Carolina or any political subdivision thereof. No person who holds any office in a political party, or organization, or who is a candidate for nomination or election to any office, or who is a campaign manager or treasurer of any candidate in a primary or election shall be eligible to serve as a member of the State Board of Elections. Added by Laws 1967, c. 775, § 1. Amended by Laws 1975, c. 286; Laws 1985, c. 62, §§ 1, 1.1; S.L. 2005–276, § 23A.3, eff. July 1, 2005; S.L. 2006–262, § 4.2, eff. Aug. 27, 2006. Historical and Statutory Notes 2005 Legislation S.L. 2005–276, § 23A.3, eff. July 1, 2005, substituted ‘‘shall’’ for ‘‘may’’ af-ter ‘‘The Governor’’ in the second sen-tence. 2006 Legislation S.L. 2006–262, § 4.2, eff. Aug. 27, 2006, repealed the changes made by S.L. 2005–276, § 23A.3, eff. July 1, 2005. § 163–20. Meetings of Board; quorum; minutes (a) Call of Meeting.—The State Board of Elections shall meet at the call of the chairman whenever necessary to discharge the duties and functions imposed upon it by this Chapter. The chair-man shall call a meeting of the Board upon the written application or applications of any two members thereof. If there is no chairman, or if the chairman does not call a meeting within three days after receiving a written request or requests from two mem-bers, any three members of the Board shall have power to call a meeting of the Board, and any duties imposed or powers conferred on the Board by this Chapter may be performed or exercised at 19 ELECTION OFFICERS § 163–20 Note 2 that meeting, although the time for performing or exercising the same prescribed by this Chapter may have expired. (b) Place of Meeting.—Except as provided in subsection (c), below, the State Board of Elections shall meet in its offices in the City of Raleigh, or at another place in Raleigh to be designated by the chairman. However, subject to the limitation imposed by subsection (c), below, upon the prior written request of any four members, the State Board of Elections shall meet at any other place in the State designated by the four members. (c) Meetings to Investigate Alleged Violations of This Chapter.— When called upon to investigate or hear sworn alleged violations of this Chapter, the State Board of Elections shall meet and hear the matter in the county in which the violations are alleged to have occurred. (d) Quorum.—A majority of the members constitutes a quorum for the transaction of business by the State Board of Elections. If any member of the Board fails to attend a meeting, and by reason thereof there is no quorum, the members present shall adjourn from day to day for not more than three days, by the end of which time, if there is no quorum, the Governor may summarily remove any member failing to attend and appoint his successor. (e) Minutes.—The State Board of Elections shall keep minutes recording all proceedings and findings at each of its meetings. The minutes shall be recorded in a book which shall be kept in the office of the Board in Raleigh. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 793, § 3; Laws 1973, c. 1223, § 1. Notes of Decisions Construction and application 1 Venue 2 1. Construction and application Action challenging method of electing North Carolina Superior Court judges would be dismissed as against county boards of elections; county boards had no power to independently place candi-date on ballot in election, boards could not remove candidate from election bal-lot, and boards were merely acting in ministerial capacity and could only car-ry out duties as detailed by statute and State Board of Elections. Republican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Federal Civil Proce-dure O 1695 2. Venue For venue purposes, where public of-ficial is a party to action in his official capacity, he resides in judicial district where he maintains his official resi-dence, that is, where he performs his official duties. Republican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Federal Courts O 283 Venue in action challenging constitu-tionality of statutory method for electing North Carolina Superior Court judges did not lie in Middle District of North Carolina but did lie in the Eastern Dis-trict of North Carolina which was where legislature passed law establish-ing election system and where state board responsible for enforcing and im-plementing statute was located. Re-publican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Feder-al Courts O 92 20 § 163–21 ELECTIONS & ELECTION LAWS § 163–21. Compensation of Board members The members of the State Board of Elections shall be compen-sated for the time they are actually engaged in the discharge of their duties and for their traveling and other expenses necessary and incidental to the discharge of their duties in accordance with the provisions of Chapter 138 of the General Statutes. Added by Laws 1967, c. 775, § 1. § 163–22. Powers and duties of State Board of Elections (a) The State Board of Elections shall have general supervision over the primaries and elections in the State, and it shall have authority to make such reasonable rules and regulations with respect to the conduct of primaries and elections as it may deem advisable so long as they do not conflict with any provisions of this Chapter. (b) From time to time, the Board shall publish and furnish to the county and municipal boards of elections and other election officials a sufficient number of indexed copies of all election laws and Board rules and regulations then in force. It shall also publish, issue, and distribute to the electorate such materials explanatory of primary and election laws and procedures as the Board shall deem necessary. (c) The State Board of Elections shall appoint, in the manner provided by law, all members of the county boards of elections and advise them and municipal elections board members as to the proper methods of conducting primaries and elections. The Board shall require such reports from the county and municipal boards and election officers as are provided by law, or as are deemed necessary by the Board, and shall compel observance of the requirements of the election laws by county and municipal boards of elections and other election officers. In performing these duties, the Board shall have the right to hear and act on complaints arising by petition or otherwise, on the failure or neglect of a county or municipal board of elections to comply with any part of the election laws imposing duties upon such a board. The State Board of Elections shall have power to remove from office any member of a county or municipal board of elections for incompetency, neglect or failure to perform duties, fraud, or for any other satisfactory cause. Before exercising this power, the State Board shall notify the county or municipal board member affected and give him an opportunity to be heard. When any county board member shall be removed by the State Board of Elections, the vacancy occurring shall be filled by the State Board of Elections. When any municipal board member shall be re-moved by the State Board of Elections, the vacancy occurring 21 ELECTION OFFICERS § 163–22 shall be filled by the city council of the city appointing members of that board. (d) The State Board of Elections shall investigate when neces-sary or advisable, the administration of election laws, frauds and irregularities in elections in any county and municipality and special district, and shall report violations of the election laws to the Attorney General or district attorney or prosecutor of the district for further investigation and prosecution. (e) The State Board of Elections shall determine, in the manner provided by law, the form and content of ballots, instruction sheets, pollbooks, tally sheets, abstract and return forms, certifi-cates of election, and other forms to be used in primaries and elections. The Board shall furnish to the county boards of elec-tions the registration application forms required pursuant to G.S. 163–82.3. The State Board of Elections shall direct the county boards of elections to purchase a sufficient quantity of all forms attendant to the registration and elections process. In addition, the State Board shall provide a source of supply from which the county boards of elections may purchase the quantity of pollbooks needed for the execution of its responsibilities. In the preparation of ballots, pollbooks, abstract and return forms, and all other forms, the State Board of Elections may call to its aid the Attorney General of the State, and it shall be the duty of the Attorney General to advise and aid in the preparation of these books, ballots and forms. (f) The State Board of Elections shall prepare, print, distribute to the county and municipal boards of elections all ballots for use in any primary or election held in the State which the law provides shall be printed and furnished by the State to the counties. The Board shall instruct the county boards of elections as to the printing of county and local ballots. (g) The State Board of Elections shall certify to the appropriate county boards of elections the names of candidates for district offices who have filed notice of candidacy with the Board and whose names are required to be printed on county ballots. (h) It shall be the duty of the State Board of Elections to tabulate the primary and election returns, to declare the results, and to prepare abstracts of the votes cast in each county in the State for offices which, according to law, shall be tabulated by the Board. (i) The State Board of Elections shall make recommendations to the Governor and legislature relative to the conduct and adminis-tration of the primaries and elections in the State as it may deem advisable. (j) Notwithstanding the provisions of any other section of this Chapter, the State Board of Elections is empowered to have access 22 § 163–22 ELECTIONS & ELECTION LAWS to any ballot boxes and their contents, any voting machines and their contents, any registration records, pollbooks, voter authoriza-tion cards or voter lists, any lists of absentee voters, any lists of presidential registrants under the Voting Rights Act of 1965 as amended, and any other voting equipment or similar records, books or lists in any precinct, county, municipality or electoral district over whose elections it has jurisdiction or for whose elections it has responsibility. Text of subsec. (k) eff. until Jan. 1, 2010. (k) Notwithstanding the provisions contained in Article 20 or Article 21 of Chapter 163 the State Board of Elections shall be authorized, by resolution adopted prior to the printing of the primary ballots, to reduce the time by which absentee ballots are required to be printed and distributed for the primary election from 50 days to 45 days. This authority shall not be authorized for absentee ballots to be voted in the general election. Text of subsec. (k) eff. Jan. 1, 2010. (k) Notwithstanding the provisions contained in Article 20 or Article 21 of Chapter 163 the State Board of Elections shall be authorized, by resolution adopted prior to the printing of the primary ballots, to reduce the time by which absentee ballots are required to be printed and distributed for the primary election from 50 days to 45 days. This authority shall not be authorized for absentee ballots to be voted in the general election, except if the law requires ballots to be available for mailing 60 days before the general election, and they are not ready by that date, the State Board of Elections shall allow the counties to mail them out as soon as they are available. (l ) Notwithstanding any other provision of law, in order to obtain judicial review of any decision of the State Board of Elections rendered in the performance of its duties or in the exercise of its powers under this Chapter, the person seeking review must file his petition in the Superior Court of Wake County. (m) Repealed by S.L. 2001–398, § 4, eff. Jan. 1, 2002. (n) The State Board of Elections shall provide specific training to county boards of elections regarding rules for registering stu-dents. (o) The State Board of Elections shall promulgate minimum requirements for the number of pollbooks, voting machines and curbside ballots to be available at each precinct, such that more of such will be available at general elections and a sufficient number will be available to allow voting without excessive delay. The State Board of Elections shall provide for a training and screening program for chief judges and judges. The State Board of Elec- 23 ELECTION OFFICERS § 163–22 tions shall provide additional testing of voting machines to ensure that they operate properly even with complicated ballots. (p) The State Board of Elections shall require counties with voting systems to have sufficient personnel available on election day with technical expertise to make repairs in such equipment, to investigate election day problems, and assist in curbside voting. (q) The State Board of Elections may assign responsibility for enumerated administrative matters to the Executive Director by resolution, if that resolution provides a process for the State Board to review any administrative decision made by the Executive Director. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 47, § 2; Laws 1973, c. 793, § 2; Laws 1975, c. 19, § 65; Laws 1977, c. 661, § 6; Laws 1979, c. 411, § 1; Laws 1981, c. 556; Laws 1985 (Reg. Sess., 1986), c. 986, §§ 2, 3; Laws 1985 (Reg. Sess., 1986), c. 987, § 3; Laws 1987, c. 485, §§ 2, 5; Laws 1987, c. 509, § 9; Laws 1987, c. 642, § 3; Laws 1989, c. 635, § 5; Laws 1991, c. 727, §§ 5.2, 7; Laws 1993 (Reg. Sess., 1994), c. 762, §§ 5, 12, eff. Jan. 1, 1995; Laws 1995, c. 509, § 114, eff. July 29, 1995; S.L. 1999–424, § 7(a), eff. Aug. 5, 1999; S.L. 2001–398, § 4, eff. Jan. 1, 2002; S.L. 2009–537, § 10, eff. Jan. 1, 2010; S.L. 2009–541, § 1, eff. Aug. 28, 2009. Historical and Statutory Notes Laws 1993, c. 762, §§ 5 and 73, pro-vide: ‘‘Section 5. Wherever the term ‘reg-istrar’ appears in Chapter 163 of the General Statutes, the term shall be changed to read ‘chief judge’.’’ ‘‘Section 73. Sections 1 through 68 of this act become effective January 1, 1995, and apply to all primaries and elections occurring on or after that date. The remainder of this act is effec-tive upon ratification and shall apply to all primaries and elections occurring on or after the date of ratification. Prose-cutions for, or sentences based on, of-fenses occurring before the effective date of any section of this act are not abated or affected by this act and the statutes that would be applicable to those prosecutions or sentences but for the provisions of this act remain appli-cable to those prosecutions or sen-tences.’’ [Amended by Laws 1995, c. 507, § 25.10(c), eff. July 1, 1995; Laws 1995, c. 608, § 1, eff. July 1, 1996.] 2001 Legislation S.L. 2001–398, § 4, eff. Jan. 1, 2002, repealed subsec. (m). 2009 Legislation S.L. 2009–537, § 10, in the second sentence, added ‘‘, except if the law requires ballots to be available for mail-ing 60 days before the general election, and they are not ready by that date, the State Board of Elections shall allow the counties to mail them out as soon as they are available.’’ S.L. 2009–537, § 11, provides: "This act becomes effective January 1, 2010, and applies with respect to elec-tions held on or after that date." S.L. 2009–541, § 1, designated the second paragraph of subsec. (o) as sub-sec. (p), and added subsec. (q). Cross References Grounds for removal; political activities by boards of election members, see § 163–40. Administrative Code References Approval and operation of voting systems, see 8 NCAC 4.0301 et seq. Ballots, see 8 NCAC 6B.0101 et seq. Conduct of vote recounts, see 8 NCAC 9.0106 et seq. 24 § 163–22 ELECTIONS & ELECTION LAWS County board of elections, voting procedures and duties, 8 NCAC 12.0101 et seq. Election protests, see 8 NCAC 2.0110 et seq. Filing of notice of candidacy for office of superior court judge, see 8 NCAC 7.0003 et seq. Investigation and reports of criminal violation, see 8 NCAC 3.0301 et seq. Members of county board of elections, see 8 NCAC 3.0101 et seq. Precinct election officials, see 8 NCAC 3.0201 et seq. Voter registration, see 8 NCAC 7B.0101 et seq. Voting places, see 8 NCAC 10B.0101 et seq. Notes of Decisions Construction and application 2 Correction or amendment of election returns 5 Determination of election results 4 Federal Voting Rights Act 3 Injunction 10 Investigations 6-8 In general 6 Judicial review 8 Trial or hearing 7 Judicial action 11 Judicial review, investigations 8 New political parties 9 Trial or hearing, investigations 7 Validity 1 1. Validity Notice of, and opportunity for, hear-ing on petition for creation of new polit-ical party are necessary to meet consti-tutional requirement of ‘‘due process of law,’’ which hears before it condemns, proceeds on inquiry, and renders judg-ment only after trial. States’ Rights Democratic Party v. State Bd. of Elec-tions, 1948, 49 S.E.2d 379, 229 N.C. 179. Constitutional Law O 4475 The statutory power of State Board of Elections to make reasonable rules for carrying into effect law governing cre-ation of new political parties is subject to restriction that such rules must not conflict with any provisions of such law, even if such restriction were not specifi-cally annexed by statute, to grant of such power, as constitution forbids leg-islature to delegate power to make law to any other body. States’ Rights Dem-ocratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Administrative Law And Procedure O 387; Elections O 54 Regulations of State Board of Elec-tions, requiring that voters petitioning for creation of new political party at-tach to and file with petition certificates from chairman of county boards of elec-tions that registration and poll books disclose that requisite number of sign-ers of petition are registered voters who have not voted in primary election of any existing party during year in which petition is signed, cannot be sustained as proper exercise of state board’s rule making power for mere purpose of es-tablishing expeditious procedure to de-termine whether petition is signed by requisite number of registered voters. States’ Rights Democratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Administrative Law And Procedure O 390.1; Elections O 54 2. Construction and application A statute authorizing state board of elections to canvass returns and deter-mine who was nominated or elected was not a denial or negation of the board’s supervisory powers which were to be exercised prior to final acceptance of the returns. Burgin v. North Car-olina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 54 3. Federal Voting Rights Act Even if Executive Secretary of State Board of Elections of North Carolina personally delivered amendment to vot-ing law to assistant United States Attor-ney General, where state did not re-quest Attorney General’s consideration of change pursuant to statute rendering inoperative any change of standard, practice or procedure as to voting in areas covered by Voting Rights Act, un-less change receives prior judicial ap-proval or has been submitted to Attor-ney General who has not interposed objections, delivery did not constitute ‘‘submission’’ within the Act. Clayton v. North Carolina State Bd. of Elec-tions, 1970, 317 F.Supp. 915. Elec-tions O 24 Section of Voting Rights Act render-ing inoperative any standard, practice or procedure as to voting different from that in force or effect on November 1, 1964, unless it has received judicial ap-proval or has been submitted to attor-ney general who has not objected with- 25 ELECTION OFFICERS § 163–22 Note 6 in 60 days is applicable to any change in such standard, practice or procedure and not just those which have a discer-nible racial discriminatory purpose. Clayton v. North Carolina State Bd. of Elections, 1970, 317 F.Supp. 915. Elections O 10 4. Determination of election results Declaration of election as contained in the certificate conclusively settles pri-ma facie the right of the person so as-certained and declared to be elected to be inducted into and exercise the duties of the office. In re Election Protest of Fletcher, 2006, 175 N.C.App. 755, 625 S.E.2d 564. Elections O 267 Where only protest before state board of elections involving returns from mul-tiple county senatorial districts related to one county, when amended returns from that county were certified in ac-cordance with findings of fact and con-clusions of law of state board, it would have legal duty to declare results of primary election and to certify nominee. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 153 While returns certified to state board of elections or county board of elec-tions, nothing else appearing, will be deemed prima facie correct, such certi-fication is not conclusive and returns certified by county board may be collat-erally attacked. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elec-tions O 267 County board of elections is proper agency to canvass returns in primary for selection of party nominees for county offices as well as general elec-tion to fill such offices. Ponder v. Jos-lin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 126(7) State board of elections is appropriate agency to canvass and judicially declare results of primary for nomination of candidate in senatorial district com-posed of more than one county. Pon-der v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 126(7) County board of elections in multiple county senatorial district has no power to canvass election returns and deter-mine judicially nominee in such district but such power is vested exclusively in state board. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elec-tions O 126(7) 5. Correction or amendment of elec-tion returns Primary election returns which were amended by county board of elections pursuant to directions of state board of elections, made in good faith, could not be declared void as a matter of law, where amended returns appeared regu-lar on their face and they were im-peached only by an affidavit of the county board chairman who participat-ed in a meeting which was duly called and held for the purpose of passing on the amended returns, and who certified to their correctness. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 Amendments to primary election re-turns pursuant to direction of state board of elections were void as a matter of law, where the returns were amend-ed by two members of the county elec-tion boards without knowledge or con-sent of third member. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 A county board of elections cannot change or amend its returns to the state board of elections without some official action on the part of the county board. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 6. Investigations—In general Authority of State Board of Elections to conduct election investigation and to enter order calling for new election is not dependent upon filing of timely pro-test to election. Appeal of Judicial Re-view by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 271 State Board of Elections was not without jurisdiction and authority to de-clare portions of county general election void and to order new election for some of county officers on its own motion without election contest having been filed with Board. Appeal of Judicial Review by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 271 Notice, which was provided by State Board of Elections of a public hearing on county general election notifying public generally, county board of elec- 26 § 163–22 ELECTIONS & ELECTION LAWS Note 6 tions, and each candidate for county office whose name was on ballot that inquiry had been launched into conduct of election and particularly processes involving absentee ballots, was suffi-cient notice of charges even though Board failed to comply strictly with statutory notice requirements for elec-tion protests, as there was no action against any specific candidate and there was no specific charge against any can-didate. Appeal of Judicial Review by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 280 Authority of State Board of Elections to conduct investigation and to order a new election of town commissioners was not dependent upon filing of timely protest. Sharpley v. State Bd. of Elec-tions, 1974, 209 S.E.2d 513, 23 N.C.App. 650. Elections O 271 When protest has been filed challeng-ing legality of returns certified by coun-ty board of elections, state board of elections can go behind returns as certi-fied and its duty is not restricted to computation and tabulation of returns as certified by various county boards. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 259 State board of elections is not limited merely to investigating frauds and irreg-ularities in any county for sole purpose of making report of such frauds and irregularities to attorney general or so-licitor for further investigation and prosecution. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elec-tions O 259 State board of elections is quasi-judi-cial agency and may, in primary or elec-tion in multiple county district, investi-gate alleged frauds and irregularities in any county upon appeal from county board or upon protest filed in apt time with state board and may take such action as findings of fact may justify, and may direct county board to amend returns in accordance therewith. Pon-der v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 153; Elections O 259 Whenever protest is filed before coun-ty board of elections in multiple county senatorial district, charging fraud and misconduct in connection with primary or election, and there is appeal from board or upon protest filed in apt time with state board, state board has right and duty to investigate charges and de-termine actual total of valid ballots cast and to require county board to amend returns accordingly, and, based upon its findings and amended returns, to deter-mine which candidate is entitled to be certified as nominee in multiple county senatorial district. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 126(7); Elections O 259; Elections O 260 7. —— Trial or hearing, investiga-tions Alleged denial of cross-examination of witnesses at preliminary inquiry into county general election was not unlawful and unconstitutional where chairman of hearing indicated that if preliminary proceedings were such as to require further proceedings, any successful candidate who contested or-der for new election would have right to recall any witness for cross-exami-nation, at least two witnesses were re-called and made available for cross-examination, and though successful candidates were so advised, they did not ask that any witness not recalled be recalled and be made available for cross-examination. Appeal of Judicial Review by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 300 Decision of State Board of Elections, which was made after Board retired into executive session at conclusion of testimony in election inquiry hearing, was not made on unlawful procedures and did not result in any prejudice to successful candidates. Appeal of Judi-cial Review by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 300 8. —— Judicial review, investigations Findings of fact and conclusions of law made by state board of elections may be reviewed in action instituted in Superior Court of Wake county under statute; and in such an action appellant is not entitled to a jury trial. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 269; Jury O 19(1) When state board of elections obtains jurisdiction of election protest on ap-peal from single county in multiple county senatorial district, or by filing in apt time of protest directly with state board, its decision can be reviewed only as provided in statute, and superior 27 ELECTION OFFICERS § 163–22 Note 10 court has no original jurisdiction to hear and determine the controversy. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 275 Superior Court of Madison county was without jurisdiction to review order of state board of elections. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 275 The courts will not undertake to con-trol the state board of elections in the exercise of its duty of general supervi-sion over primaries and elections, so long as such supervision conforms to the rudiments of fair play and the stat-utes on the subject. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Constitutional Law O 2547 9. New political parties The duty to determine whether peti-tion for organization of new political party is in accordance with statutory requirements devolves in first instance on State Board of Elections, which must ascertain whether petition is signed by required number of qualified registered voters. States’ Rights Demo-cratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 153 The State Board of Elections has au-thority to determine registration or non-registration of signers of petition for creation of new political party by exam-ination of registration books through agency of county election boards as matter of administrative routine before calling on signers to prove signature of petition by requisite number of qualified voters. States’ Rights Democratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 153 The statute governing creation of new political parties imposes no duty on State Board of Elections to determine sufficiency of petition for organization of new party at time of its filing, but purpose of statutory provision for filing of petition with board at least 90 days before general election is to afford board approximately 60 days time in which to determine sufficiency of peti-tion and print ballots bearing names of new party’s nominees. States’ Rights Democratic Party v. State Bd. of Elec-tions, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 153 Regulations of State Board of Elec-tions, requiring voters desiring to create new political party to attach to and file with petition therefor certificates from chairmen of county boards of elections that registration and poll books disclose that required number of signers of peti-tion are registered voters, who have not voted in primary election of any existing party during year in which petition is signed, are invalid as legislating rather than regulating. States’ Rights Demo-cratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Constitutional Law O 2621 The statute providing for creation of new political parties confers on any qualified voter legal right to sign peti-tion therefor, irrespective of whether he has participated in primary election of existing political party during year in which petition is signed. States’ Rights Democratic Party v. State Bd. of Elec-tions, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 121(1) The primary election laws do not modify statute giving any qualified voter legal right to sign petition for creation of new political party, regardless of whether he has voted in primary elec-tion of existing party during year in which petition is signed and filed, as such laws are inapplicable to new par-ties created by such petitions, but apply only to existing political parties. States’ Rights Democratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 121(1) The Supreme Court cannot determine whether primary election laws impose on qualified voters, participating in pri-mary elections of existing political par-ties, moral obligation to such party to refrain from signing statutory petition for creation of new political party dur-ing year in which such elections are held, but must decide whether partic-ipation in such elections legally disables qualified electors to sign such a petition during that year. States’ Rights Demo-cratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 154(1) 10. Injunction Contestant claiming to be entitled to be certified as party nominee for state senator in multiple county district was not entitled to have state board of elec-tions restrained in order to keep board from completing investigation of protest filed, finding facts with respect thereto, and making conclusions of law based thereon. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Injunction O 80 28 § 163–22 ELECTIONS & ELECTION LAWS Note 10 The unsuccessful candidate for Demo-cratic nominee for Congress was enti-tled to an order staying the state board of elections from certifying his oppo-nent as the nominee pending state board’s receipt of final returns from county boards whose original returns were void as a matter of law for having been amended by two members of county election boards without knowl-edge or consent of third member. Bur-gin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Injunction O 80 11. Judicial action Venue in action challenging constitu-tionality of statutory method for electing North Carolina Superior Court judges did not lie in Middle District of North Carolina but did lie in the Eastern Dis-trict of North Carolina which was where legislature passed law establish-ing election system and where state board responsible for enforcing and im-plementing statute was located. Re-publican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Feder-al Courts O 92 Action challenging method of electing North Carolina Superior Court judges would be dismissed as against county boards of elections; county boards had no power to independently place candi-date on ballot in election, boards could not remove candidate from election bal-lot, and boards were merely acting in ministerial capacity and could only car-ry out duties as detailed by statute and State Board of Elections. Republican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Federal Civil Proce-dure O 1695 Where petition for creation of new political party was shown beyond doubt to have been signed by at least 10,000 qualified voters and otherwise met ev-ery statutory requirement, Superior Court properly granted writ of manda-mus, ordering State Board of Elections to cause names of new party’s nominees for President and Vice-President of the United States to be printed on official ballots for general election. States’ Rights Democratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Mandamus O 74(3) § 163–22.1. Repealed by S.L. 2001–398, § 2, eff. Jan. 1, 2002 Historical and Statutory Notes The repealed section, which related to power of the State Board to order new elections, was derived from: Laws 1973, c. 793, § 5. Laws 1982, c. 1265, § 2. Laws 1983, c. 210. Laws 1995 (Reg. Sess., 1996), c. 694, § 2. S.L. 1999–424, § 1. § 163–22.2. Power of State Board to promulgate temporary rules and regulations In the event any portion of Chapter 163 of the General Statutes or any State election law or form of election of any county board of commissioners, local board of education, or city officer is held unconstitutional or invalid by a State or federal court or is unen-forceable because of objection interposed by the United States Justice Department under the Voting Rights Act of 1965 and such ruling adversely affects the conduct and holding of any pending primary or election, the State Board of Elections shall have authority to make reasonable interim rules and regulations with respect to the pending primary or election as it deems advisable so long as they do not conflict with any provisions of Chapter 163 of the General Statutes and such rules and regulations shall become null and void 60 days after the convening of the next regular session of the General Assembly. The State Board of Elections shall also be authorized, upon recommendation of the Attorney 29 ELECTION OFFICERS § 163–22.3 General, to enter into agreement with the courts in lieu of pro-tracted litigation until such time as the General Assembly con-venes. Added by Laws 1981, c. 741. Amended by Laws 1982 (2nd Ex. Sess.), c. 3, § 19.1; Laws 1985, c. 563, § 15; Laws 1986 (1st Ex. Sess.), c. 3, § 1. Administrative Code References Filing of notice of candidacy for office of superior court judge, see 8 NCAC 7.0003 et seq. Notes of Decisions Construction and application 1 Special elections 2 1. Construction and application Remedial statute, such as one giving State Board of Elections authority to make reasonable interim rules and regulations with respect to pending primary or election if objection is in-terposed by United States Justice De-partment under Voting Rights Act of 1965, must be construed liberally in light of evil sought to be eliminated, remedies intended to be applied, and legislative objective. Newsome v. North Carolina State Bd. of Elections, 1992, 415 S.E.2d 201, 105 N.C.App. 499. Statutes O 236 Statute granting State Board of Elec-tions authority to make reasonable in-terim rules and regulations with respect to pending primary or election which became null and void 60 days after con-vening of next regular session of Gener-al Assembly exempted Board from rule-making procedures of Administrative Procedure Act (APA); APA states that it applies to every agency except to the extent and in the particulars that any statute makes specific provisions to the contrary and election statute contained specific provisions to the contrary. Newsome v. North Carolina State Bd. of Elections, 1992, 415 S.E.2d 201, 105 N.C.App. 499. Administrative Law And Procedure O 384; Elections O 54 2. Special elections Effect of improper submission to United States Attorney General for pre-clearance of special election to incorpo-rate a town was tantamount to objec-tion by Attorney General and sufficient to authorize State Board of Elections to proceed under statute giving Board au-thority to make reasonable interim rules and regulations with respect to pending primary or election when objection is interposed by Justice Department under Voting Rights Act. Newsome v. North Carolina State Bd. of Elections, 1992, 415 S.E.2d 201, 105 N.C.App. 499. Municipal Corporations O 12(8) Action of State Board of Elections in ordering special municipal election did not become null and void 60 days after its promulgation under statute giving Board authority to make reasonable in-terim rules and regulations with respect to pending primary or election which would become null and void 60 days after convening of next regular session of General Assembly when objection is interposed by United States Justice De-partment under Voting Rights Act; when state ordered special election in even-numbered year, there was no ‘‘reg-ular’’ session of the General Assembly but, rather, session of General Assembly held in 1990 was a continuation of 1989 ‘‘regular’’ session. Newsome v. North Carolina State Bd. of Elections, 1992, 415 S.E.2d 201, 105 N.C.App. 499. Municipal Corporations O 12(8) § 163–22.3. State Board of Elections littering notification At the time an individual files with the State Board of Elections a notice of candidacy pursuant to G.S. 163–106, 163–112, 163–291, 163–294.2, or 163–323, is certified to the State Board of Elections by a political party executive committee to fill a nomina-tion vacancy pursuant to G.S. 163–114, is certified to the State Board of Elections by a new political party as that party’s nominee 30 § 163–22.3 ELECTIONS & ELECTION LAWS pursuant to G.S. 163–98, qualifies with the State Board of Elec-tions as an unaffiliated or write-in candidate pursuant to Article 11 of this Chapter, or formally initiates a candidacy with the State Board of Elections pursuant to any statute or local act, the State Board of Elections shall notify the candidate of the provisions concerning campaign signs in G.S. 136–32 and G.S. 14–156, and the rules adopted by the Department of Transportation pursuant to G.S. 136–18. Added by S.L. 2001–512, § 7, eff. Jan. 4, 2002. § 163–23. Powers of chairman in execution of Board duties In the performance of the duties enumerated in this Chapter, the chairman of the State Board of Elections shall have power to administer oaths, issue subpoenas, summon witnesses, and compel the production of papers, books, records and other evidence. Upon the written request or requests of two or more members of the State Board of Elections, he shall issue subpoenas for designat-ed witnesses or identified papers, books, records and other evi-dence. In the absence of the chairman or upon his refusal to act, any two members of the State Board of Elections may issue subpoenas, summon witnesses, and compel the production of papers, books, records and other evidence. In the absence of the chairman or upon his refusal to act, any member of the Board may administer oaths. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 793, § 4. § 163–24. Power of State Board of Elections to maintain order The State Board of Elections shall possess full power and authority to maintain order, and to enforce obedience to its lawful commands during its sessions, and shall be constituted an inferior court for that purpose. If any person shall refuse to obey the lawful commands of the State Board of Elections or its chairman, or by disorderly conduct in its hearing or presence shall interrupt or disturb its proceedings, it may, by an order in writing, signed by its chairman, and attested by its secretary, commit the person so offending to the common jail of the county for a period not exceeding 30 days. Such order shall be executed by any sheriff to whom the same shall be delivered, or if a sheriff shall not be present, or shall refuse to act, by any other person who shall be deputed by the State Board of Elections in writing, and the keeper of the jail shall receive the person so committed and safely keep him for such time as shall be mentioned in the commitment: Provided, that any person committed under the provisions of this section shall have the right to post a two hundred dollar ($200.00) 31 ELECTION OFFICERS § 163–26 bond with the clerk of the superior court and appeal to the superior court for a trial on the merits of his commitment. Added by Laws 1967, c. 775, § 1. Amended by Laws 1995, c. 379, § 14(e), eff. July 6, 1995. Historical and Statutory Notes Laws 1995, c. 379, § 20, provides that this act ‘‘does not affect pending litigation’’. § 163–25. Authority of State Board to assist in litigation The State Board of Elections shall possess authority to assist any county or municipal board of elections in any matter in which litigation is contemplated or has been initiated, provided, the county or municipal board of elections in such county petitions, by majority resolution, for such assistance from the State Board of Elections and, provided further, that the State Board of Elections determines, in its sole discretion by majority vote, to assist in any such matter. It is further stipulated that the State Board of Elections shall not be authorized under this provision to enter into any litigation in assistance to counties, except in those instances where the uniform administration of Chapter 163 of the General Statutes of North Carolina has been, or would be threatened. The Attorney General shall provide the State Board of Elections with legal assistance in execution of its authority under this section or, in his discretion, recommend that private counsel be employed. If the Attorney General recommends employment of private counsel, the State Board may employ counsel with the approval of the Governor. Added by Laws 1969, c. 408, § 1. Amended by Laws 1973, c. 793, § 6; Laws 1983, c. 324, § 2. § 163–26. Executive Director of State Board of Elections There is hereby created the position of Executive Director of the State Board of Elections, who shall perform all duties imposed upon him by statute and such duties as might be assigned to him by the State Board of Election.1 Added by Laws 1973, c. 1272, § 4. Amended by S.L. 2001–319, § 11, eff. July 28, 2001. 1 So in original. Historical and Statutory Notes 2001 Legislation S.L. 2001–319, § 11, eff. July 28, 2001, substituted ‘‘Executive Director’’ for ‘‘Executive Secretary-Director’’ and ‘‘State Executive Secretary-Director’’ throughout this section. 32 § 163–27 ELECTIONS & ELECTION LAWS § 163–27. Executive Director to be appointed by Board The appointment of the Executive Director of the State Board of Elections is extended to May 15, 1989, unless removed for proper cause, and thereafter the Board shall appoint an Executive Di-rector for a term of four years with compensation to be deter-mined by the Department of Personnel. He shall serve, unless removed for cause, until his successor is appointed. Such Execu-tive Director shall be responsible for staffing, administration, exe-cution of the Board’s decisions and orders and shall perform such other responsibilities as may be assigned by the Board. In the event of a vacancy, the vacancy shall be filled for the remainder of the term. Added by Laws 1973, c. 1409, § 3. Amended by Laws 1985, c. 62, § 2; S.L. 2001–319, § 11, eff. July 28, 2001. Historical and Statutory Notes 2001 Legislation S.L. 2001–319, § 11, eff. July 28, 2001, substituted ‘‘Executive Director’’ for ‘‘Executive Secretary-Director’’ and ‘‘State Executive Secretary-Director’’ throughout this section. § 163–27.1. Emergency powers The Executive Director, as chief State elections official, may exercise emergency powers to conduct an election in a district where the normal schedule for the election is disrupted by any of the following: (1) A natural disaster. (2) Extremely inclement weather. (3) An armed conflict involving United States Armed Forces, or mobilization of those forces, including State National Guard and reserve components. In exercising those emergency powers, the Executive Director shall avoid unnecessary conflict with the provisions of this Chap-ter. The Executive Director shall adopt rules describing the emer-gency powers and the situations in which the emergency powers will be exercised. Added by S.L. 1999–455, § 23. Amended by S.L. 2001–319, § 11, eff. July 28, 2001. Historical and Statutory Notes S.L. 1999–455, § 24 provides: ‘‘This act applies to elections held on or after January 1, 2000, except that the State Board of Elections may issue rules required or permitted by this act prior to that date.’’ 2001 Legislation S.L. 2001–319, § 11, eff. July 28, 2001, substituted ‘‘Executive Director’’ for ‘‘Executive Secretary-Director’’ and ‘‘State Executive Secretary-Director’’ throughout this section. § 163–28. State Board of Elections independent agency The State Board of Elections shall be and remain an indepen-dent regulatory and quasi-judicial agency and shall not be placed 33 ELECTION OFFICERS § 163–30 within any principal administrative department. The State Board of Elections shall exercise its statutory powers, duties, functions, authority, and shall have all powers and duties conferred upon the heads of principal departments under G.S. 143B-10. Added by Laws 1973, c. 1409, § 2. § 163–29. Reserved Article 4 County Boards of Elections Section 163–30. County boards of elections; appointments; terms of office; qualifications; vacancies; oath of office; instructional meetings. 163–31. Meetings of county boards of elections; quorum; minutes. 163–32. Compensation of members of county boards of elections. 163–33. Powers and duties of county boards of elections. 163–33.1. Power of chairman to administer oaths. 163–33.2. Chairman and county board to examine voting machines. 163–33.3. County board of elections littering notification. 163–34. Power of county board of elections to maintain order. 163–35. Director of elections to county board of elections; appoint-ment; compensation; duties; dismissal. 163–36. Modified full-time offices. 163–37. Duty of county board of commissioners. § 163–30. County boards of elections; appointments; terms of office; qualifications; vacancies; oath of office; instruc-tional meetings In every county of the State there shall be a county board of elections, to consist of three persons of good moral character who are registered voters in the county in which they are to act. Members of county boards of elections shall be appointed by the State Board of Elections on the last Tuesday in June 1985, and every two years thereafter, and their terms of office shall continue for two years from the specified date of appointment and until their successors are appointed and qualified. Not more than two members of the county board of elections shall belong to the same political party. No person shall be eligible to serve as a member of a county board of elections who holds any elective office under the govern-ment of the United States, or of the State of North Carolina or any political subdivision thereof. No person who holds any office in a state, congressional district, county or precinct political party or organization, or who is a campaign manager or treasurer of any candidate or political party in a primary or election, shall be eligible to serve as a member of a county board of elections, provided however that the position of 34 § 163–30 ELECTIONS & ELECTION LAWS delegate to a political party convention shall not be considered an office for the purpose of this section. No person shall be eligible to serve as a member of a county board of elections who is a candidate for nomination or election. No person shall be eligible to serve as a member of a county board of elections who is the wife, husband, son, son-in-law, daughter, daughter-in-law, mother, mother-in-law, father, father-in- law, sister, sister-in-law, brother, brother-in-law, aunt, uncle, niece, or nephew of any candidate for nomination or election. Upon any member of the board of elections becoming ineligible, that member’s seat shall be declared vacant. This paragraph only applies if the county board of elections is conducting the election for which the relative is a candidate. The State chairman of each political party shall have the right to recommend to the State Board of Elections three registered voters in each county for appointment to the board of elections for that county. If such recommendations are received by the Board 15 or more days before the last Tuesday in June 1985, and each two years thereafter, it shall be the duty of the State Board of Elections to appoint the county boards from the names thus recommended. Whenever a vacancy occurs in the membership of a county board of elections for any cause the State chairman of the political party of the vacating member shall have the right to recommend two registered voters of the affected county for such office, and it shall be the duty of the State Board of Elections to fill the vacancy from the names thus recommended. At the meeting of the county board of elections required by G.S. 163–31 to be held on Tuesday following the third Monday in July in the year of their appointment the members shall take the following oath of office: ‘‘I, TTTTTTTTTT, do solemnly swear (or affirm) that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina and to the constitutional powers and authorities which are or may be established for the government thereof; that I will endeavor to support, maintain and defend the Constitution of said State, not inconsistent with the Constitution of the United States; and that I will well and truly execute the duties of the office of member of the TTTTTTTTTT County Board of Elections to the best of my knowledge and ability, according to law; so help me God.’’ Each member of the county board of elections shall attend each instructional meeting held pursuant to G.S. 163–46, unless ex-cused for good cause by the chairman of the board, and shall be 35 ELECTION OFFICERS § 163–31 paid the sum of twenty-five dollars ($25.00) per day for attending each of those meetings. Added by Laws 1967, c. 775, § 1. Amended by Laws 1969, c. 208, § 1; Laws 1973, c. 793, § 7; Laws 1973, c. 1094; Laws 1973, c. 1344, § 4; Laws 1975, c. 19, § 66; Laws 1975, c. 159, § 1; Laws 1981, c. 954, § 1; Laws 1983, c. 617, §§ 1, 2; Laws 1985, c. 472, § 4; S.L. 1997–211, § 1, eff. June 19, 1997. Historical and Statutory Notes S.L. 1997–211, § 2, provides: ‘‘This act is effective when it becomes law and applies to appointments to county boards of elections for terms commencing on or after June 24, 1997.’’ § 163–31. Meetings of county boards of elections; quorum; minutes In each county of the State the members of the county board of elections shall meet at the courthouse or board office at noon on the Tuesday following the third Monday in July in the year of their appointment by the State Board of Elections and, after taking the oath of office provided in G.S. 163–30, they shall organize by electing one member chairman and another member secretary of the county board of elections. On the Tuesday following the third Monday in August of the year in which they are appointed the county board of elections shall meet and appoint precinct chief judges and judges of elections. The board may hold other meet-ings at such times as the chairman of the board, or any two members thereof, may direct, for the performance of duties pre-scribed by law. A majority of the members shall constitute a quorum for the transaction of board business. The chairman shall notify, or cause to be notified, all members regarding every meet-ing to be held by the board. The county board of elections shall keep minutes recording all proceedings and findings at each of its meetings. The minutes shall be recorded in a book which shall be kept in the board office and it shall be the responsibility of the secretary, elected by the board, to keep the required minute book current and accurate. The secretary of the board may designate the director of elections to record and maintain the minutes under his supervision. Added by Laws 1967, c. 775, § 1. Amended by Laws 1969,c. 208, § 2; Laws 1975, c. 159, § 2; Laws 1977, c. 626, § 1; Laws 1983, c. 617, § 3; Laws 1993 (Reg. Sess., 1994), c. 762, § 13, eff. Jan. 1, 1995; Laws 1995, c. 243, § 1, eff. Jan. 1, 1996. Historical and Statutory Notes Laws 1993, c. 762, § 73, provides: ‘‘Sections 1 through 68 of this act become effective January 1, 1995, and apply to all primaries and elections oc-curring on or after that date. The re-mainder of this act is effective upon ratification and shall apply to all prima-ries and elections occurring on or after the date of ratification. Prosecutions for, or sentences based on, offenses oc- 36 § 163–31 ELECTIONS & ELECTION LAWS curring before the effective date of any section of this act are not abated or affected by this act and the statutes that would be applicable to those prosecu-tions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.’’ [Amended by Laws 1995, c. 507, § 25.10(c), eff. July 1, 1995; Laws 1995, c. 608, § 1, eff. July 1, 1996.] Laws 1995, c. 243, § 1, provides: ‘‘Wherever the term ‘supervisor’ ap-pears in the General Statutes of North Carolina or in any local act in reference to the county supervisor of elections as provided in G.S. 163–35, the term is changed to read ‘director.’ ’’ Cross References Precinct chief judges, see § 163–41. § 163–32. Compensation of members of county boards of elec-tions In full compensation of their services, members of the county board of elections (including the chairman) shall be paid by the county twenty-five dollars ($25.00) per meeting for the time they are actually engaged in the discharge of their duties, together with reimbursement of expenditures necessary and incidental to the discharge of their duties; provided that members are not entitled to be compensated for more than one meeting held in any one 24–hour period. In its discretion, the board of county commis-sioners of any county may pay the chairman and members of the county board of elections compensation in addition to the per meeting and expense allowance provided in this paragraph. In all counties the board of elections shall pay its clerk, assistant clerks, and other employees such compensation as it shall fix within budget appropriations. Counties which adopt full-time and permanent registration shall have authority to pay directors of elections whatever compensation they may fix within budget ap-propriations. Added by Laws 1967, c. 775, § 1. Amended by Laws 1971, c. 1166, § 1; Laws 1973, c. 793, § 8; Laws 1973, c. 1344, § 5; Laws 1977, c. 626, § 1; Laws 1991, c. 338, § 1; Laws 1993 (Reg. Sess., 1994),c. 762, § 14, eff. Jan. 1, 1995; Laws 1995, c. 243, § 1, eff. Jan. 1, 1996. Historical and Statutory Notes Laws 1993, c. 762, § 73, provides: ‘‘Sections 1 through 68 of this act become effective January 1, 1995, and apply to all primaries and elections oc-curring on or after that date. The re-mainder of this act is effective upon ratification and shall apply to all prima-ries and elections occurring on or after the date of ratification. Prosecutions for, or sentences based on, offenses oc-curring before the effective date of any section of this act are not abated or affected by this act and the statutes that would be applicable to those prosecu-tions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.’’ [Amended by Laws 1995, c. 507, § 25.10(c), eff. July 1, 1995; Laws 1995, c. 608, § 1, eff. July 1, 1996.] Laws 1995, c. 243, § 1, provides: ‘‘Wherever the term ‘supervisor’ ap-pears in the General Statutes of North Carolina or in any local act in reference to the county supervisor of elections as provided in G.S. 163–35, the term is changed to read ‘director.’ ’’ 37 ELECTION OFFICERS § 163–33 § 163–33. Powers and duties of county boards of elections The county boards of elections within their respective jurisdic-tions shall exercise all powers granted to such boards in this Chapter, and they shall perform all the duties imposed upon them by law, which shall include the following: (1) To make and issue such rules, regulations, and instruc-tions, not inconsistent with law, with directives promulgat-ed under the provisions of G.S. 163–132.4, or with the rules, orders, and directives established by the State Board of Elections, as it may deem necessary for the guidance of election officers and voters. (2) To appoint all chief judges, judges, assistants, and other officers of elections, and designate the precinct in which each shall serve; and, after notice and hearing, to remove any chief judge, judge of elections, assistant, or other officer of election appointed by it for incompetency, failure to discharge the duties of office, failure to qualify within the time prescribed by law, fraud, or for any other satisfac-tory cause. In exercising the powers and duties of this subdivision, the board may act only when a majority of its members are present at any meeting at which such powers or duties are exercised. (3) To investigate irregularities, nonperformance of duties, and violations of laws by election officers and other per-sons, and to report violations to the State Board of Elec-tions. In exercising the powers and duties of this subdivi-sion, the board may act only when a majority of its members are present at any meeting at which such powers or duties are exercised. Provided that in any hearing on an irregularity no board of elections shall consider as evidence the testimony of a voter who cast a ballot, which ballot that voter was not eligible to cast, as to how that voter voted on that ballot. (4) As provided in G.S. 163–128, to establish, define, provide, rearrange, discontinue, and combine election precincts as it may deem expedient, and to fix and provide for places of registration and for holding primaries and elections. (5) To review, examine, and certify the sufficiency and validity of petitions and nomination papers. (6) To advertise and contract for the printing of ballots and other supplies used in registration and elections; and to provide for the delivery of ballots, pollbooks, and other required papers and materials to the voting places. (7) To provide for the purchase, preservation, and mainte-nance of voting booths, ballot boxes, registration and poll- 38 § 163–33 ELECTIONS & ELECTION LAWS books, maps, flags, cards of instruction, and other forms, papers, and equipment used in registration, nominations, and elections; and to cause the voting places to be suitably provided with voting booths and other supplies required by law. (8) To provide for the issuance of all notices, advertisements, and publications concerning elections required by law. If the election is on a State bond issue, an amendment to the Constitution, or approval of an act submitted to the voters of the State, the State Board of Elections shall reimburse the county boards of elections for their reasonable addi-tional costs in placing such notices, advertisements, and publications. In addition, the county board of elections shall give notice at least 20 days prior to the date on which the registration books or records are closed that there will be a primary, general or special election, the date on which it will be held, and the hours the voting places will be open for voting in that election. The notice also shall describe the nature and type of election, and the issues, if any, to be submitted to the voters at that election. Notice shall be given by advertisement at least once weekly dur-ing the 20–day period in a newspaper having general circulation in the county and by posting a copy of the notice at the courthouse door. Notice may additionally be made on a radio or television station or both, but such notice shall be in addition to the newspaper and other required notice. This subdivision shall not apply in the case of bond elections called under the provisions of Chapter 159. (9) To receive the returns of primaries and elections, canvass the returns, make abstracts thereof, transmit such ab-stracts to the proper authorities, and to issue certificates of election to county officers and members of the General Assembly except those elected in districts composed of more than one county. (10) To appoint and remove the board’s clerk, assistant clerks, and other employees; and to appoint and remove pre-cinct transfer assistants as provided in G.S. 163–82.15(g). (11) To prepare and submit to the proper appropriating offi-cers a budget estimating the cost of elections for the ensuing fiscal year. (12) To perform such other duties as may be prescribed by this Chapter, by directives promulgated pursuant to G.S. 163–132.4, or by the rules, orders, and directives of the State Board of Elections. 39 ELECTION OFFICERS § 163–33 (13) Notwithstanding the provisions of any other section of this Chapter, to have access to any ballot boxes and their contents, any voting machines and their contents, any registration records, pollbooks, voter authorization cards or voter lists, any lists of absentee voters, any lists of presidential registrants under the Voting Rights Act of 1965 as amended, and any other voting equipment or similar records, books or lists in any precinct or munici-pality over whose elections it has jurisdiction or for whose elections it has responsibility. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 793, §§ 9 to 11; Laws 1983, c. 392, § 1; Laws 1989, c. 93, § 1; Laws 1993 (Reg. Sess., 1994), c. 762, §§ 5, 15, eff. Jan. 1, 1995; Laws 1995 (Reg. Sess., 1996), c. 694, § 1, eff. June 21, 1996; S.L. 1997–510, § 1, eff. Sept. 17, 1997; S.L. 1999–424, § 7(b), eff. Aug. 5, 1999; S.L. 2009–541, § 2, eff. Aug. 28, 2009. Historical and Statutory Notes Laws 1993, c. 762, § 73, provides: ‘‘Sections 1 through 68 of this act become effective January 1, 1995, and apply to all primaries and elections oc-curring on or after that date. The re-mainder of this act is effective upon ratification and shall apply to all prima-ries and elections occurring on or after the date of ratification. Prosecutions for, or sentences based on, offenses oc-curring before the effective date of any section of this act are not abated or affected by this act and the statutes that would be applicable to those prosecu-tions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.’’ [Amended by Laws 1995, c. 507, § 25.10(c), eff. July 1, 1995; Laws 1995, c. 608, § 1, eff. July 1, 1996.] Laws 1995, c. 694, § 3, provides: ‘‘This act is effective upon ratification and applies to all votes cast on or after that date.’’ 2009 Legislation S.L. 2009–541, § 2, in subd. (1), sub-stituted ‘‘law, with directives promul-gated under the provisions of G.S. 163–132.4, or with the rules, orders, and directives’’ for ‘‘law or the rules’’; and in subd. (12), substituted ‘‘Chapter, by directives promulgated pursuant to G.S. 163–132.4, or by the rules, orders, and directives’’ for ‘‘Chapter or the rules’’. Local Modifications Town of Calabash: Laws 1989, c. 593, § 3; S.L. 1998–75, §§ 1, 5. Town of Carolina Shores: S.L. 1998–75, § 5. Town of Hazelwood: Laws 1987, c. 383, § 8. Town of Spruce Pine: S.L. 1998–152, § 2. Town of Waynesville: Laws 1987, c. 338, § 8. Alamance County Board of Elections: S.L. 1998–151, § 9.6. Anson County Board of Commission-ers: Laws 1991 (Reg. Sess., 1992), c. 781, § 8. Union County Board of Elections: S.L. 1998–151, § 9.6. Cross References Metropolitan water districts; procedure for inclusion of additional political subdivi-sion or unincorporated area; notice and hearing; elections; actions ques-tioning validity of elections, see § 162A–35. Rules governing elections, school tax supplements, see § 115C–507. 40 § 163–33 ELECTIONS & ELECTION LAWS Notes of Decisions Amendment of election returns 1 Review of Board actions 2 1. Amendment of election returns Primary election returns which were amended by county board of elections pursuant to directions of state board of elections, made in good faith, could not be declared void as a matter of law, where amended returns appeared regu-lar on their face and they were im-peached only by an affidavit of the county board chairman who participat-ed in a meeting which was duly called and held for the purpose of passing on the amended returns, and who certified to their correctness. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 Amendments to primary election re-turns pursuant to direction of state board of elections were void as a matter of law, where the returns were amend-ed by two members of the county elec-tion boards without knowledge or con-sent of third member. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 A county board of elections cannot change or amend its returns to the state board of elections without some official action on the part of the county board. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 2. Review of Board actions Action challenging method of electing North Carolina Superior Court judges would be dismissed as against county boards of elections; county boards had no power to independently place candi-date on ballot in election, boards could not remove candidate from election bal-lot, and boards were merely acting in ministerial capacity and could only car-ry out duties as detailed by statute and State Board of Elections. Republican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Federal Civil Proce-dure O 1695 The unsuccessful candidate for Demo-cratic nominee for Congress was enti-tled to an order staying the state board of elections from certifying his oppo-nent as the nominee pending state board’s receipt of final returns from county boards whose original returns were void as a matter of law for having been amended by two members of county election boards without knowl-edge or consent of third member. Bur-gin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Injunction O 80 § 163–33.1. Power of chairman to administer oaths The chairman of the county board of elections is authorized to administer to election officials specified in Articles 4, 5, and 20 of this Chapter the required oath, and may also administer the required oath to witnesses appearing before the county board at a duly called public hearing. Added by Laws 1981, c. 154. Amended by S.L. 2007–391, § 5, eff. Aug. 19, 2007. Historical and Statutory Notes 2007 Legislation S.L. 2007–391, § 5, substituted ‘‘Arti-cles 4, 5, and 20 of this Chapter’’ for ‘‘G.S. 163–80’’. § 163–33.2. Chairman and county board to examine voting machines Prior to each primary and general election the chairman and members of the county board of elections, in counties where 41 ELECTION OFFICERS § 163–34 voting machines are used, shall test vote, in a reasonable number of combinations, no less than ten percent (10%) of all voting machines programmed for each primary or election, such ma-chines to be selected at random by the board after programming has been completed, and further, the board shall record the serial numbers of the machines test voted in the official minutes of the board. In the alternative, the board may cause the test voting required herein to be performed by persons qualified to program and test voting equipment. Added by Laws 1981, c. 303. § 163–33.3. County board of elections littering notification At the time an individual files with a county board of elections a notice of candidacy pursuant to G.S. 163–106, 163–112, 163–291, or 163–294.2, is certified to a county board of elections by a political party executive committee to fill a nomination vacancy pursuant to G.S. 163–114, qualifies with a county board of elec-tions as an unaffiliated or write-in candidate pursuant to Article 11 of this Chapter, or formally initiates with a county board of elections a candidacy pursuant to any statute or local act, the county board of elections shall notify the candidate of the provi-sions concerning campaign signs in G.S. 136–32 and G.S. 14–156 and the rules adopted by the Department of Transportation pursu-ant to G.S. 136–18. Added by S.L. 2001–512, § 8, eff. Jan. 4, 2002. § 163–34. Power of county board of elections to maintain order Each county board of elections shall possess full power to maintain order, and to enforce obedience to its lawful commands during its sessions, and shall be constituted an inferior court for that purpose. If any person shall refuse to obey the lawful commands of any county board of elections, or by disorderly conduct in its hearing or presence shall interrupt or disturb its proceedings, it may, by an order in writing, signed by its chair-man, and attested by its secretary, commit the person so offending to the common jail of the county for a period not exceeding 30 days. Such order shall be executed by any sheriff to whom the same shall be delivered, or if a sheriff shall not be present, or shall refuse to act, by any other person who shall be deputed by the county board of elections in writing, and the keeper of the jail shall receive the person so committed and safely keep him for such time as shall be mentioned in the commitment: Provided, that any person committed under the provisions of this section shall have the right to post a two hundred dollar ($200.00) bond with the 42 § 163–34 ELECTIONS & ELECTION LAWS clerk of the superior court and appeal to the superior court for a trial on the merits of his commitment. Added by Laws 1967, c. 775, § 1. Amended by S.L. 2004–203, § 57, eff. Aug. 17, 2004. § 163–35. Director of elections to county board of elections; appointment; compensation; duties; dismissal (a) In the event a vacancy occurs in the office of county director of elections in any of the county boards of elections in this State, the county board of elections shall submit the name of the person it recommends to fill the vacancy, in accordance with provisions specified in this section, to the Executive Director of the State Board of Elections who shall issue a letter of appointment. A person shall not serve as a director of elections if he: (1) Holds
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Title | Election and related laws of North Carolina : chaper 163 : elections and election laws |
Other Title | Chaper 163 : elections and election laws; Elections and election laws |
Contributor | North Carolina. General Assembly. |
Date | 2009 |
Subjects | Election law--North Carolina |
Place | North Carolina, United States |
Description | Includes bibliographical references. |
Publisher | General Assembly |
Agency-Current | North Carolina General Assembly |
Rights | State Document see http://digital.ncdcr.gov/u?/p249901coll22,63754 |
Physical Characteristics | 1136 p. of electronic text : digital, PDF file. |
Collection | North Carolina State Documents Collection. State Library of North Carolina |
Type | Text |
Language | English |
Format | Laws (documents) |
Digital Characteristics-A | 3 MB; 1136 p. |
Series | North Carolina general statutes. 2009 ed. |
Digital Collection | North Carolina Digital State Documents Collection |
Digital Format | application/pdf |
Related Items | http://worldcat.org/oclc/819333727/viewonline |
Audience | All |
Pres File Name-M | pubs_electionrelatedlaws2009.pdf |
Pres Local File Path-M | \Preservation_content\StatePubs\pubs_borndigital\images_master\ |
Full Text | 1 ELECTION AND RELATED LAWS OF NORTH CAROLINA Chapter 163 Elections and Election Laws SUBCHAPTER I. TIME OF PRIMARIES AND ELECTIONS Article Section 1. Time of Primaries and Elections.TTTTTTTTTTTTTTTTTTTTTTTTTTTT163–1 2. Time of Elections to Fill Vacancies.TTTTTTTTTTTTTTTTTTTTTTTTTT163–8 SUBCHAPTER II. ELECTION OFFICERS 3. State Board of Elections. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–19 4. County Boards of Elections. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–30 4A. Political Activities by Board of Elections Members and Employees. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–38 5. Precinct Election Officials. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–41 SUBCHAPTER III. QUALIFYING TO VOTE 6. Qualifications of Voters.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–54 7. Registration of Voters [Repealed]. TTTTTTTTTTTTTTTTTTTTTTT 163–65 7A. Registration of Voters. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT163–82.1 8. Challenges.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–84 8A. HAVA Administrative Complaint Procedure.TTTTTTTTTTTTTT 163–91 SUBCHAPTER IV. POLITICAL PARTIES 9. Political Party Definition. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–96 SUBCHAPTER V. NOMINATION OF CANDIDATES 10. Primary Elections.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–104 11. Nomination by Petition.TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–122 11A. Resign-to-Run [Repealed]. TTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–125 11B. Challenge to a Candidacy. TTTTTTTTTTTTTTTTTTTTTTTTTTTT163–127.1 SUBCHAPTER VI. CONDUCT OF PRIMARIES AND ELECTIONS 12. Precincts and Voting Places. TTTTTTTTTTTTTTTTTTTTTTTTTT 163–128 12A. Precinct Boundaries. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT163–132.1 13. General Instructions [Repealed]. TTTTTTTTTTTTTTTTTTTTTT 163–135 14. Voting Systems [Repealed]. TTTTTTTTTTTTTTTTTTTTTTTTTTT 163–160 14A. Voting. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–165 15. Counting Ballots, Canvassing Votes, and Certify-ing Results in Precinct and County [Repealed].TTTTTTT 163–168 15A. Counting Official Ballots, Canvassing Votes, Hearing Protests, and Certifying Results.TTTTTTTTTTTTT 163–182 16. Canvass of Returns for Higher Offices and Prepa-ration of State Abstracts [Repealed]. TTTTTTTTTTTTTTTTT 163–187 17. Members of United States House of Representa-tives. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–201 2 ELECTIONS & ELECTION LAWS Article Section 18. Presidential Electors. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–208 18A. Presidential Preference Primary Act.TTTTTTTTTTTTTTTTTT163–213.1 19. Petitions for Elections and Referenda. TTTTTTTTTTTTTTTTT 163–218 SUBCHAPTER VII. ABSENTEE VOTING 20. Absentee Ballot. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–226 21. Military Absentee Registration and Voting in Pri-mary and General Elections. TTTTTTTTTTTTTTTTTTTTTTTTTT 163–245 SUBCHAPTER VIII. REGULATION OF ELECTION CAMPAIGNS 22. Corrupt Practices and Other Offenses Against the Elective Franchise. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–259 22A. Regulating Contributions and Expenditures in Political Campaigns. TTTTTTTTTTTTTTTTTTTTTTTTTTTTTTT163–278.5 22B. Appropriations from the North Carolina Political Parties Financing Fund. TTTTTTTTTTTTTTTTTTTTTTTTT 163–278.41 22C. Appropriations from the North Carolina Candi-dates Financing Fund [Repealed]. TTTTTTTTTTTTTTTT 163–278.46 22D. The North Carolina Public Campaign Fund. TTTTTTTTT 163–278.61 22E. Electioneering Communications.TTTTTTTTTTTTTTTTTTTT 163–278.80 22F. Mass Mailings and Telephone Banks: Election-eering Communications. TTTTTTTTTTTTTTTTTTTTTTTTT 163–278.90 22J. The Voter-Owned Elections Act. TTTTTTTTTTTTTTTTTTTT 163–278.95 22G. Candidate-Specific Communications.TTTTTTTTTTTTTTT 163–278.100 22H. Mass Mailings and Telephone Banks: Candidate- Specific Communications.TTTTTTTTTTTTTTTTTTTTTTT 163–278.110 22M. Legal Expense Funds.TTTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–278.300 SUBCHAPTER IX. MUNICIPAL ELECTIONS 23. Municipal Election Procedure.TTTTTTTTTTTTTTTTTTTTTTTTTT 163–279 24. Conduct of Municipal Elections. TTTTTTTTTTTTTTTTTTTTTTTT 163–291 SUBCHAPTER X. ELECTION OF APPELLATE, SUPERIOR, AND DISTRICT COURT JUDGES 25. Nomination and Election of Appellate, Superior, and District Court Judges. TTTTTTTTTTTTTTTTTTTTTTTTTTTT 163–321 3 United States Voting Rights Act of 1965 Legislation affecting individual counties and, conse-quently, the state at large may be subject to Section 5 of the federal Voting Rights Act of 1965. For information con-cerning the receipt of preclearance consult the North Car-olina Register or the appropriate agency as provided for in Chapter 120, Article 6A, § 120–30.9A et seq. SUBCHAPTER I. TIME OF PRIMARIES AND ELECTIONS Article 1 Time of Primaries and Elections Section 163–1. Time of regular elections and primaries. 163–2. Repealed. 163–3 to 163–7. Reserved. § 163–1. Time of regular elections and primaries (a) Unless otherwise provided by law, elections for the officers listed in the tabulation contained in this section shall be conducted in all election precincts of the territorial units specified in the column headed ‘‘Jurisdiction’’ on the dates indicated in the col-umn headed ‘‘Date of Election.’’ Unless otherwise provided by law, officers shall serve for the terms specified in the column headed ‘‘Term of Office.’’ (b) On Tuesday next after the first Monday in May preceding each general election to be held in November for the officers referred to in subsection (a) of this section, there shall be held in all election precincts within the territory for which the officers are to be elected a primary election for the purpose of nominating candidates for each political party in the State for those offices, and nonpartisan candidates as to offices elected under the provi-sions of Article 25 of this Chapter. (c) On Tuesday next after the first Monday in November in the year 1968, and every four years thereafter, or on such days as the Congress of the United States shall direct, an election shall be held in all of the election precincts of the State for the election of electors of President and Vice–President of the United States. The number of electors to be chosen shall be equal to the number of Senators and Representatives in Congress to which this State may be entitled. Presidential electors shall not be nominated by pri-mary election; instead, they shall be nominated in a State conven-tion of each political party as defined in G.S. 163–96 unless otherwise provided by the plan of organization of the political 4 § 163–1 ELECTIONS & ELECTION LAWS party; provided, that in the case of a candidate for President of the United States who has qualified to have his name printed on the general election ballot as an unaffiliated candidate under G.S. 163–122, that candidate shall nominate presidential electors. One presidential elector shall be nominated from each congressional district and two from the state-at-large, and in addition, the State convention of each party and the unaffiliated candidate shall each nominate first and second alternate electors who shall serve if their slate is elected as provided by G.S. 163–209 and if there is a vacancy as provided by G.S. 163–210. OFFICE JURISDICTION DATE OF ELEC- TERM OF OFFICE TION Governor State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Lieutenant Gover- State Tuesday next after Four years, from nor the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Secretary of State State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Auditor State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Treasurer State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Superintendent of State Tuesday next after Four years, from Public Instruc- the first Monday first day of Janu-tion in November ary next after 1968 and every election four years there-after Attorney General State Tuesday next after Four years, from the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Commissioner of State Tuesday next after Four years, from Agriculture the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after 5 TIME OF PRIMARIES AND ELECTIONS § 163–1 OFFICE JURISDICTION DATE OF ELEC- TERM OF OFFICE TION Commissioner of State Tuesday next after Four years, from Labor the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after Commissioner of State Tuesday next after Four years, from Insurance the first Monday first day of Janu-in November ary next after 1968 and every election four years there-after All other State offi- State Tuesday next after Four years, from cers whose the first Monday first day of Janu-terms last for in November ary next after four years 1968 and every election four years there-after All other State offi- State Tuesday next after Two years, from cers whose the first Monday first day of Janu-terms are not in November ary next after specified by law 1968 and every election two years there-after State Senator Senatorial district Tuesday next after Two years the first Monday in November 1968 and every two years there-after Member of State Representative dis- Tuesday next after Two years House of Repre- trict the first Monday sentatives in November 1968 and every two years there-after Justices and State At the regular elec- Eight years, from Judges of the Ap- tion for mem- first day of Janu-pellate Division bers of the Gen- ary next after eral Assembly election immediately pre-ceding the termi-nation of each regular term Judges of the supe- Superior Court At the regular elec- Eight years, from rior courts District tion for mem- first day of Janu-bers of the Gen- ary after next eral Assembly election immediately pre-ceding the termi-nation of each regular term Judges of the dis- District court dis- At the regular elec- Four years, from trict courts trict tion for mem- the first day in bers of the Gen- January next af-eral Assembly ter election immediately pre-ceding the termi-nation of each regular term District Attorney District Attorney At the regular elec- Four years, from district tion for mem- first day of Janu- 6 § 163–1 ELECTIONS & ELECTION LAWS OFFICE JURISDICTION DATE OF ELEC- TERM OF OFFICE TION bers of the Gen- ary next after eral Assembly election immediately pre-ceding the termi-nation of each regular term Members of House Congressional dis- Tuesday next after Two years of Representa- trict, except as the first Monday tives of the Con- modified by G.S. in November gress of the Unit- 163-104 1968 and every ed States two years there-after United States Sen- State At the regular elec- Six years ators tion immediately preceding the termination of each regular term County commis- County At the regular elec- Two years, from sioners tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of each regular term Clerk of superior County At the regular elec- Four years, from court tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of each regular term Register of deeds County At the regular elec- Four years, from tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of each regular term Sheriff County At the regular elec- Four years, from tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of each regular term Coroner County At the regular elec- Four years, from tion for mem- the first Monday bers of the Gen- in December eral Assembly next after elec-immediately pre- tion ceding the termi-nation of a regu-lar term County treasurer County Tuesday next after Two years, from (in counties in the first Monday the first Monday which elected) in November in December 1968 and every next after elec- 7 TIME OF PRIMARIES AND ELECTIONS § 163–1 OFFICE JURISDICTION DATE OF ELEC- TERM OF OFFICE TION two years there- tion after All other county of- County Tuesday next after Two years, from ficers to be elect- the first Monday the first Monday ed by the people in November in December 1968 and every next after elec-two years there- tion after (d) If primaries for the State Senate or State House of Repre-sentatives are temporarily moved from the date provided in sub-section (b) of this section for any election year, all primaries shall be held on the same day. Added by Laws 1967, c. 775, § 1. Amended by Laws 1967, c. 1264; Laws 1967, c. 1271; Laws 1969, c. 44, § 80; Laws 1971, c. 170; Laws 1973, c. 793, § 93; Laws 1975, c. 844, § 1; Laws 1977, c. 265, § 1; Laws 1977, c. 661, § 1; Laws 1981, c. 504, §§ 11 to 13; Laws 1985, c. 768, § 16 to 17.1; Laws 1991 (Reg. Sess., 1992), c. 782, § 1; Laws 1993 (Reg. Sess., 1994), c. 738, § 2, eff. July 13, 1994; Laws 1996 (2nd Ex. Sess.), c. 9, § 2; S.L. 2003–434 (Ex. Sess.), § 6, eff. Nov. 25, 2003; S.L. 2004–127, § 12, eff. July 26, 2004; S.L. 2005–425, § 3.2, eff. Sept. 22, 2005. Historical and Statutory Notes Laws 1996, 2 Ex. Sess., c. 9, § 23, provides: ‘‘Part 1 of this act becomes effective only if Parts 1 and 2 of this act are both effective under section 5 of the Voting Rights Act of 1965.’’ Laws 1996, 2 Ex. Sess., c. 9, § 24, provides, in part: ‘‘Part 1 of this act is effective upon ratification, and applies beginning with the 1996 elections, except that Sections 1 and 2 of this act shall be applied to the 1994 general election and the re-sults of that election validated and con-firmed under those sectionsTTTT’’ The U.S. Department of Justice pre-cleared Parts 1 and 2 of Laws 1996, 2 Ex. Sess., c. 9, in a letter dated Oct. 1, 1996. 2002 Legislation S.L. 2002–21 (Ex. Sess.), §§ 1(a) to 2, eff. July 16, 2002, provide: ‘‘Section 1.(a) Notwithstanding G.S. 163–1(b), the date of the primary elec-tion in 2002 shall be September 10, 2002. ‘‘Section 1.(b) In order to accommo-date the scheduling of the 2002 primary on September 10, 2002, and in order to comply with the requirements of Sec-tion 5 of the Voting Rights Act of 1965 and any court orders, and in order to comply with any objections interposed under Section 5, the State Board of Elections may issue temporary orders that may change, modify, delete, amend, or add to any statute contained in Chapter 163 of the General Statutes, any rules contained in Title 8 of the North Carolina Administrative Code, or any other election regulation or guide-line that may affect the 2002 primaries and general elections. These temporary orders are only effective for the 2002 primary and 2002 general election. These orders shall include a primary election schedule. ‘‘Section 1.(c) Notwithstanding G.S. 163–111 or any local act, in 2002 only, the result of the primary shall be deter-mined by a plurality and no second primary shall be held. Any runoff elec-tion for local office that might by local act have been held on the date of the second primary shall instead be held on the date of the general election. If there is a tie in a primary in 2002, the result shall be determined in accor-dance with G.S. 163–111(f) under the same rule as if there had been a tie in a second primary. ‘‘Section 1.(d) The authority to adopt orders also extends to any elections originally scheduled to be held on May 7, 2002, any elections ordered by the State Board of Elections to be held on the date of a county primary that were originally scheduled to be held on May 7, 2002, or any elections to be held on 8 § 163–1 ELECTIONS & ELECTION LAWS the date of the second primary. If any municipality had its election scheduled under G.S. 160A–23.1(d)(2) to be on the date of the second primary in 2002, the election shall instead be held on the date of the general election in 2002. ‘‘Section 1.(e) The orders shall pro-vide for candidate filing for member of the State Senate and State House of Representatives to open as soon as practicable. ‘‘Section 1.(f) The State Board of Elections may set a period of time for unaffiliated candidates who wish to ob-tain ballot access by petition, under the provisions of G.S. 163–122, for legisla-tive races in districts used in new legis-lative filings, to obtain and submit signed petitions for such purpose. Any unaffiliated candidate for a legislative seat, in a district used under a previous-ly approved legislative redistricting plan, who had submitted a petition in a timely manner under the provisions of G.S. 163–122, shall have the right under any State Board plan to have any valid voter signatures contained in the previ-ously approved petition, that meet the residency requirements of the new dis-trict, to be considered a part of any new petition to obtain ballot access for a legislative seat in that new district. ‘‘Section 1.(g) The authority granted by this section shall be exercised only when needed to ensure the orderly and timely operations of the electoral pro-cess, the public good, and any valid interest of voters, candidates, and of-ficeholders in order to accommodate the compressed schedule necessitated by holding the primary elections at such a late date. All orders of the State Board issued under this section shall be presumed to be reasonable and to serve the public interest. ‘‘Section 1.(h) Orders issued under this section are not rules subject to the provisions of Chapter 150B of the Gen-eral Statutes. Orders issued under this section shall, however, be published in the North Carolina Register as quickly as possible. ‘‘Section 1.(i) The times to publish notice of a bond referendum required by G.S. 159–61(c) shall not apply to any bond referendum held on the date of the 2002 statewide primary. The local government unit holding the bond refer-endum on that date shall comply with the times to publish notice of the elec-tion prescribed by the State Board of Elections pursuant to this section. ‘‘Section 1.(j) The provisions of G.S. 159–61(b) that provide that a bond ref-erendum may not be held within 30 days before or 10 days after a statewide primary, election, or referendum shall not apply to any bond referendum pre-viously called to be conducted on a date that is within 30 days before or 10 days after the date selected as the date for the 2002 statewide primary. ‘‘Section 1.(k) As used in this section, ‘‘order’’ also includes guidelines and di-rectives. ‘‘Section 1.(l ) Any orders issued un-der this section become void 10 days after the final certification of all elec-tions that were originally scheduled to be held in 2002. ‘‘This section expires 10 days after the final certification of all elections that were originally scheduled to be held in 2002. ‘‘Section 1.1. Notwithstanding G.S. 163–106(h), any person who filed a no-tice of candidacy under G.S. 163–106(c) during the filing period in 2002 for an office other than member of the State Senate or member of the State House of Representatives and did not withdraw that notice of candidacy before the fil-ing deadline may not file a notice of candidacy as a member of the State Senate or member of the State House of Representatives unless either of the fol-lowing applies: ‘‘(1) If that person was declared the nominee of the party under G.S. 163–110, that person resigns the nomi-nation (in which case the vacancy in nomination shall be filled in accordance with G.S. 163–114). ‘‘(2) If that person is in a contested primary, that person withdraws the no-tice of candidacy. That notice of candi-dacy may be withdrawn notwithstand-ing the requirements of G.S. 163–106(e) that it be withdrawn prior to the filing deadline for that office. In the case of any such withdrawal, the appropriate board of election shall reopen filing for three days under the usual procedures of G.S. 163–112 notwithstanding the time of and reason for the withdrawal. ‘‘Section 2. If any members of any county board of education are elected at the primary election and take office un-der a local act in July after the primary, in 2002 only, they shall instead take office on the same day in December after the primary, and the terms of any such member which would otherwise expire in July of 2002 are extended ac-cordingly.’’ 9 TIME OF PRIMARIES AND ELECTIONS § 163–1 Note 1 2003 Legislation S.L. 2003–434 (Ex. Sess.), § 6, eff. Nov. 25, 2003, added subsec. (d). S.L. 2003–434 (Ex. Sess.), § 16, pro-vides: ‘‘Sections 1, 2, 3, 4, and 5 of this act are effective when it becomes law. The remainder of this act is effective when it becomes law and applies to any case pending on or filed after that date, to any case regardless of when the case was filed, and to any action of a court affecting the validity of an act appor-tioning or redistricting State legislative or congressional districts.’’ 2004 Legislation S.L. 2004–127, § 12, eff. July 26, 2004, in subsec. (b), inserted ‘‘, and nonpartisan candidates as to offices elected under the provisions of Article 25 of this Chapter’’. 2005 Legislation S.L. 2005–425, §3.2, eff. Sept. 22, 2005, substituted ‘‘day in January next’’ for ‘‘Monday in December next’’ in the chart entry for ‘‘Judges of the district court.’’ S.L. 2005–425, § 4, provides: ‘‘Sections 1.1 and 1.2 of this act be-come effective January 1, 2006, and ap-ply to fees assessed or collected on or after that date. Section 2 becomes ef-fective January 1, 2006, and applies to cases filed on or after that date. Sec-tions 3.1 and 3.2 of this act are effective when they become law. Judges elected in 2006 and thereafter take office ac-cordingly, and as provided by Section 10 of Article VI of the North Carolina Constitution and G.S. 128–7, those in office on the first Monday in December of 2006 or 2008 shall continue until their successors’ terms begin and are duly qualified.’’ Cross References Election and terms of office of sanitary district boards, see § 130A–50. Notes of Decisions Construction and application 2 Election of judges 3 Validity 1 1. Validity Political party could bring action challenging North Carolina’s method of electing state trial court judges under equal protection clause of Fourteenth Amendment, even though judges were not representatives in sense that they represented interests of their constitu-ents; political party raised vote dilution, rather than one-person, one-vote, issue, electorate undoubtedly considered broad philosophical views of judicial candidates when voting, and very real possibility existed that party affiliation reflected judicial philosophy and ulti-mately outcome of judicial decisions. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certiorari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Con-stitutional Law O 923 For purposes of action challenging method of electing North Carolina state trial court judges as political gerryman-dering in violation of equal protection clause of Fourteenth Amendment, polit-ical party constituted ‘‘identifiable polit-ical group,’’ even though political party included some members of opposing party as plaintiffs, where complaint stated that those plaintiffs had and would continue to vote for political par-ty’s candidates for state trial court judgeships. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certio-rari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Constitutional Law O 923 Political party could not bring action challenging North Carolina’s method of electing state trial court judges under First Amendment’s free speech provi-sions where there was no indication that North Carolina laws subjected par-ty members to threat of civil or criminal penalties for engaging in political ex-pression. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certio-rari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Constitutional Law O 863; Con-stitutional Law O 859 Political party failed to state claim that North Carolina’s method of elect-ing state trial court judges violated First Amendment rights of free speech and association where political party alleged no direct, state-imposed impediments on judicial elections or that its members 10 § 163–1 ELECTIONS & ELECTION LAWS Note 1 were prevented from participating, as individuals or as a group, in election of state trial court judges; First Amend-ment protects right to cast effective vote by prohibiting restrictions on ballot ac-cess that impair ability of citizens to express their political references, or that limit opportunity for citizens to unite in support of candidate of their choice, but does not insure equal weigh-ing of votes. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certio-rari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Constitutional Law O 2054; Constitutional Law O 1477 2. Construction and application The provisions of election law setting up machinery to be followed in ascer-taining and declaring successful candi-date in an election are applicable to all municipal elections. Ledwell v. Proc-tor, 1942, 19 S.E.2d 234, 221 N.C. 161. Elections O 236 Const. Art. 7, § 3, providing that the first division of counties into townships shall be by the county commissioners, does not authorize them to make any subsequent division or alteration. The subsequent creation or alteration of townships is left with the legislature. Grady v. Lenoir County Com’rs, 1876, 74 N.C. 101. Towns O 6 3. Election of judges Method of electing state trial court judges in North Carolina did not re-quire political party’s judicial candi-dates to choose between accepting public employment and taking action contrary to their chosen political affili-ation, even though method of electing judges allegedly prevented political party’s judicial candidates from being elected; although political party affilia-tion may be appropriate consideration if government, as hiring authority, re-quires affiliation with particular politi-cal party as qualification for perform-ance of position, state trial court judges were elected public officials, rather than employees hired by govern-ment. Republican Party of North Car-olina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, cer-tiorari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Judges O 3 Political party sufficiently alleged ac-tual discriminatory effect of North Car-olina’s method of electing state trial court judges where political party’s complaint set forth data revealing that, in 1984 and 1986 general elections, of 40 judgeships up for election, only four were contested by political party’s can-didates and that, since 1968, of approxi-mately 220 judgeships up for election, political party offered candidate in only ten, and complaint asserted that method of electing state trial court judges di-minished campaign contributions for those elections because potential con-tributors were unwilling to donate mon-ey or other resources to candidate who was perceived to be almost certain los-er. Republican Party of North Carolina v. Martin, 1992, 980 F.2d 943, rehear-ing denied 991 F.2d 1202, certiorari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Civil Rights O 1395(1) Political party stated prima facie case of vote dilution brought about by politi-cal gerrymandering with respect to North Carolina’s method of electing state trial court judges in state-wide, rather than judicial district-wide, elec-tions where political party’s complaint alleged that repeated efforts to change from state-wide to district-wide elec-tions were rejected by opposition-con-trolled state general assembly, that only one candidate for state trial court judge running on political party’s ticket had been elected since turn of century, that state trial court judges rarely, if ever, performed judicial duties outside the re-spective districts, and that majority of voters voted for judicial candidates from other parts of state without know-ing anything about candidates other than party affiliation as indicated on ballot. Republican Party of North Car-olina v. Martin, 1992, 980 F.2d 943, rehearing denied 991 F.2d 1202, certio-rari denied 114 S.Ct. 93, 510 U.S. 828, 126 L.Ed.2d 60, on remand 841 F.Supp. 722. Constitutional Law O 3658(5) § 163–2. Repealed by S.L. 2001–460, § 2, eff. Jan. 1, 2002 Historical and Statutory Notes See, now, § 163–166. 11 TIME OF PRIMARIES AND ELECTIONS § 163–9 §§ 163–3 to 163–7. Reserved Article 2 Time of Elections to Fill Vacancies Section 163–8. Filling vacancies in State executive offices. 163–9. Filling vacancies in State and district judicial offices. 163–10. Filling vacancy in office of district attorney. 163–11. Filling vacancies in the General Assembly. 163–12. Filling vacancy in United States Senate. 163–13. Filling vacancy in United States House of Representatives. 163–14 to 163–18. Reserved. § 163–8. Filling vacancies in State executive offices If the office of Governor or Lieutenant Governor shall become vacant, the provisions of G.S. 147-11.1 shall apply. If the office of any of the following officers shall be vacated by death, resignation, or otherwise than by expiration of term, it shall be the duty of the Governor to appoint another to serve until his successor is elected and qualified: Secretary of State, Auditor, Treasurer, Superinten-dent of Public Instruction, Attorney General, Commissioner of Agriculture, Commissioner of Labor, and Commissioner of Insur-ance. Each such vacancy shall be filled by election at the first election for members of the General Assembly that occurs more than 60 days after the vacancy has taken place, and the person chosen shall hold the office for the remainder of the unexpired four-year term: Provided, that when a vacancy occurs in any of the offices named in this section and the term expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill the vacancy for the unexpired term of the office. Upon the occurrence of a vacancy in the office of any one of these officers for any of the causes stated in the preceding para-graph, the Governor may appoint an acting officer to perform the duties of that office until a person is appointed or elected pursuant to this section and Article III, Section 7 of the State Constitution, to fill the vacancy and is qualified. Added by Laws 1967, c. 775, § 1. Amended by Laws 1981, c. 504, § 14; Laws 1983, c. 324, § 1; Laws 1985 (Reg. Sess., 1986), c. 920, § 5. § 163–9. Filling vacancies in State and district judicial offices (a) Vacancies occurring in the offices of Justice of the Supreme Court, judge of the Court of Appeals, and judge of the superior court for causes other than expiration of term shall be filled by appointment of the Governor. An appointee to the office of Justice of the Supreme Court or judge of the Court of Appeals shall hold office until January 1 next following the election for members of 12 § 163–9 ELECTIONS & ELECTION LAWS the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held for an eight-year term and until a successor is elected and qualified. (b) Except for judges specified in the next paragraph of this subsection, an appointee to the office of judge of superior court shall hold his place until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill the unexpired term of the office. Appointees for judges of the superior court from any district: (1) With only one resident judge; or (2) In which no county is subject to section 5 of the Voting Rights Act of 1965, shall hold the office until the next election of members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill an eight-year term. (c) When the unexpired term of the office in which the vacancy has occurred expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill that vacancy for the unexpired term of the office. (d) Vacancies in the office of district judge which occur before the expiration of a term shall not be filled by election. Vacancies in the office of district judge shall be filled in accordance with G.S. 7A–142. Added by Laws 1967, c. 775, § 1. Amended by Laws 1969, c. 44, § 81; Laws 1979, c. 494; Laws 1981, c. 504, § 15; Laws 1981, c. 763, § 3; Laws 1985 (Reg. Sess., 1986), c. 920, § 6; Laws 1995, c. 98, § 1, eff. May 23, 1995; Laws 1996 (2nd Ex. Sess.),c. 9, § 21. Historical and Statutory Notes Laws 1995, c. 98, §§ 2 and 3, pro-vide: ‘‘Section 2. The terms of office of all duly elected judges of the Supreme Court and Judges of the Court of Ap-peals who are not already serving full eight-year terms of office are as follows: ‘‘(1) For the Court of Appeals seat now occupied by Joseph R. John, Sr., no election shall be held in 1998 for a full term, and the holder of that seat shall serve until a successor is elected in 2000 and qualifies. The succeeding term begins January 1, 2001. ‘‘(2) For the Court of Appeals seat now occupied by Ralph A. Walker, no election shall be held in 1998 for a full term, and the holder of that seat shall serve until a successor is elected in 2002 and qualifies. The succeeding term begins January 1, 2003. ‘‘(3) For the Court of Appeals seat now occupied by Mark D. Martin, no election shall be held in 1998 for a full term, and the holder of that seat shall serve until a successor is elected in 2002 and qualifies. The succeeding term begins January 1, 2003. ‘‘Section 3. If any provision of this act is held invalid by a court of compe-tent jurisdiction, such holding shall in-validate the remaining provisions of this act, so that its provisions are insepara-ble.’’ Laws 1996, 2 Ex. Sess., c. 9, § 21, provides, in part, that this section ‘‘is 13 TIME OF PRIMARIES AND ELECTIONS § 163–9 Note 1 effective upon ratification and applies to vacancies to be filled by elections con-ducted on or after that date’’. Notes of Decisions Validity 1 1. Validity General Assembly’s creation of three additional Court of Appeals judgeships, effective upon appointment by gover-nor, with initial appointive terms of ap-proximately four years, exceeded limita-tions of state constitutional provisions that required judicial appointees to run at next general election for members of General Assembly, and that judges serve eight-year terms following elections, even though creation of judgeships themselves was not unconstitutional, and legislature indicated that office of judge of Court of Appeals would not be created until appointment of judge so as to sidestep requirement that elections be held, given that office had to exist before it could be filled, and legislature could not delay effective date of judge-ships so as to circumvent constitutional requirements. Pope v. Easley, 2001, 354 N.C. 544, 556 S.E.2d 265. Judges O 2; Judges O 7 Section of statute creating three addi-tional judgeships on Court of Appeals was severable from unconstitutional section that delayed effective date of judgeships and failed to require elec-tions as mandated by state constitution, given that legislature specifically stated that sections of statute were severable, which evinced clear intent to allow en-forcement of section that created judge-ships, even in absence of sections that dealt with appointments and terms. Pope v. Easley, 2001, 354 N.C. 544, 556 S.E.2d 265. Statutes O 64(3) Statute providing that person elected to fill vacancy on superior court, Court of Appeals, or Supreme Court serves only unexpired portion of vacated term did not violate provision of North Car-olina Constitution providing that judges ‘‘shall hold office for terms of eight years.’’ Brannon v. North Carolina State Bd. of Elections, 1992, 416 S.E.2d 390, 331 N.C. 335. Judges O 8 Securing uniformity in beginning of terms of office for superior court judges was adequate public purpose to sustain under State Constitution statute provid-ing for that uniformity by delaying elec-tion for nine superior court judges. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Judges O 7 Statute which postponed election date for eight superior court judges for two years and for ninth judge for four years did not violate provision of Constitution stating that superior court judges shall hold office for term of eight years and until their successors are elected and qualified; legislature merely eliminated staggered terms within multi-seat judi-cial districts by creating one-time inter-im or hiatus between certain terms of office. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Judges O 7 One-time delay in certain judicial elections created by statute postponing election of certain superior court judges so as to eliminate staggered terms did not violate right of citizens to vote guar-anteed by State Constitution. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Elections O 10.5; Judges O 3 Where terms of incumbent superior court judges end without successors having been elected and qualified, new terms of office have not begun, and Constitution’s ‘‘hold over’’ provision op-erates and allows incumbents to contin-ue serving interim; thus, by allowing nine judges to hold over in office be-yond their terms’ expiration, legislature did not unconstitutionally use authority of governor to make judicial appoint-ments for vacancies in judicial offices. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Consti-tutional Law O 2391; Judges O 9 Delaying election of superior court judges in certain judicial districts did not confer separate emolument upon in-cumbents in violation of State Constitu-tion; any benefit to incumbent judges was incidental and subordinate to legiti-mate public benefits obtained by delay-ing elections. State ex rel. Martin v. Preston, 1989, 385 S.E.2d 473, 325 N.C. 438. Judges O 22(6) 14 § 163–10 ELECTIONS & ELECTION LAWS § 163–10. Filling vacancy in office of district attorney Any vacancy occurring in the office of district attorney for causes other than expiration of term shall be filled by appointment of the Governor. An appointee shall hold his place until the next election for members of the General Assembly that is held more than 60 days after the vacancy occurs, at which time an election shall be held to fill the unexpired term of the office: Provided, that when the unexpired term of the office in which the vacancy has occurred expires on the first day of January succeeding the next election for members of the General Assembly, the Governor shall appoint to fill that vacancy for the unexpired term of the office. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 47, § 2; Laws 1977, c. 265, § 2; Laws 1981, c. 504, § 16; Laws 1985 (Reg. Sess., 1986), c. 920, § 7. § 163–11. Filling vacancies in the General Assembly (a) If a vacancy shall occur in the General Assembly by death, resignation, or otherwise than by expiration of term, the Governor shall immediately appoint for the unexpired part of the term the person recommended by the political party executive committee provided by this section. The Governor shall make the appoint-ment within seven days of receiving the recommendation of the appropriate committee. If the Governor fails to make the appoint-ment within the required period, he shall be presumed to have made the appointment and the legislative body to which the appointee was recommended is directed to seat the appointee as a member in good standing for the duration of the unexpired term. (b) If the district consists solely of one county and includes all of that county, the Governor shall appoint the person recommended by the county executive committee of the political party with which the vacating member was affiliated when elected, it being the party executive committee of the county which the vacating member was resident. (c) If the district consists solely of one county but includes less than all of the county, the Governor shall appoint the person recommended by the county executive committee of the political party with which the vacating member was affiliated when elected, it being the county executive committee of the county which the vacating member was resident, provided that in voting only those county executive committee members who reside in the district shall be eligible to vote. (d) If the district consists of more than one county, the Gover-nor shall appoint for the unexpired portion of the term the person recommended by the State House of Representatives district com-mittee or the Senatorial district committee of the political party 15 TIME OF PRIMARIES AND ELECTIONS § 163–12 with which the vacating member was affiliated when elected. In the case where all of a county is included within a district, the county convention or county executive committee of that political party shall elect or appoint at least one member from that county to serve on the State House of Representatives district executive committee or State Senatorial district executive committee. In the case where only part of a county is included within a district, the county convention or county executive committee of that political party shall elect or appoint at least one member from that county to serve on the State House of Representatives district committee or the State Senatorial district committee, but only the delegates to the county convention or the members of the county executive committee who reside in the district may vote in electing the district committee member. When the State House of Representa-tives district committee or the State Senatorial district committee meets, a member shall be entitled to cast for his county (or the part of his county within the district) one vote for each 300 persons or major fraction thereof residing within that county, or in the case where less than the whole county is in the district one vote for each 300 persons or major fraction thereof residing in that part of the district within the county. A county convention or county executive committee may elect more than one member to the district committee but in the event that more than one member is selected from that county, then each member shall cast an equal share of the votes allotted to the county. (e) No person is eligible for appointment to fill a vacancy in the Senate or the House of Representatives under this section, unless that person would have been qualified to vote as an elector for that office if an election were to be held on the date of appointment. This section is intended to implement the provisions of Section 8 of Article VI of the Constitution. Added by Laws Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 35; Laws 1981, c. 504, § 17; Laws 1981 (Reg. Sess., 1992), c. 1265, § 3; S.L. 2007–391, § 27(b), eff. Aug. 19, 2007. Historical and Statutory Notes 2007 Legislation S.L. 2007–391, § 27(b), added subsec. (e). S.L. 2007–391, § 27(c), provides: ‘‘This section is effective when it be-comes law and applies only to appoint-ments made on or after that date.’’ § 163–12. Filling vacancy in United States Senate Whenever there shall be a vacancy in the office of United States Senator from this State, whether caused by death, resignation, or otherwise than by expiration of term, the Governor shall appoint to fill the vacancy until an election shall be held to fill the office. The Governor shall issue his writ for the election of a Senator to 16 § 163–12 ELECTIONS & ELECTION LAWS be held at the time of the first election for members of the General Assembly that is held more than 60 days after the vacancy occurs. The person elected shall hold the office for the remainder of the unexpired term. The election shall take effect from the date of the canvassing of the returns. Added by Laws 1967, c. 775, § 1. Amended by Laws 1981, c. 504, § 18; Laws 1985, c. 759, § 2; Laws 1985, c. 768, § 18. § 163–13. Filling vacancy in United States House of Repre-sentatives (a) Special Election.—If at any time after expiration of any Congress and before another election, or if at any time after an election, there shall be a vacancy in this State’s representation in the House of Representatives of the United States Congress, the Governor shall issue a writ of election, and by proclamation fix the date on which an election to fill the vacancy shall be held in the appropriate congressional district. (b) Nominating Procedures.—If a congressional vacancy occurs beginning on the tenth day before the filing period ends under G.S. 163-106(c) preceding the next succeeding general election, candi-dates for the special election to fill the vacancy shall not be nominated in primaries. Instead, nominations may be made by the political party congressional district executive committees in the district in which the vacancy occurs. The chairman and secretary of each political party congressional district executive committee nominating a candidate shall immediately certify his name and party affiliation to the State Board of Elections so that it may be printed on the special election ballots. If the congressional vacancy occurs before the tenth day before the filing period ends under G.S. 163-106(c) prior to the next succeeding general election, the Governor shall call a special primary for the purpose of nominating candidates to be voted on in a special election called by the Governor in accordance with the provisions of subsection (a) of this section. Such a primary election shall be conducted in accordance with the general laws governing primaries, except that the opening and closing dates for filing notices of candidacy with the State Board of Elections shall be fixed by the Governor in his call for the special primary. The Governor may also fix the absentee voting period for the special election and for the special first primary, but such period shall not be less than 30 days. Added by Laws 1967, c. 775, § 1. Amended by Laws 1985, c. 759, §§ 3 to 5. Cross References Special provisions for vacancies in certain offices, see § 163–115. §§ 163–14 to 163–18. Reserved 17 SUBCHAPTER II. ELECTION OFFICERS Article 3 State Board of Elections Section 163–19. State Board of Elections; appointment; term of office; vacan-cies; oath of office. 163–20. Meetings of Board; quorum; minutes. 163–21. Compensation of Board members. 163–22. Powers and duties of State Board of Elections. 163–22.1. Repealed. 163–22.2. Power of State Board to promulgate temporary rules and regulations. 163–22.3. State Board of Elections littering notification. 163–23. Powers of chairman in execution of Board duties. 163–24. Power of State Board of Elections to maintain order. 163–25. Authority of State Board to assist in litigation. 163–26. Executive Director of State Board of Elections. 163–27. Executive Director to be appointed by Board. 163–27.1. Emergency powers. 163–28. State Board of Elections independent agency. 163–29. Reserved. § 163–19. State Board of Elections; appointment; term of office; vacancies; oath of office All of the terms of office of the present members of the State Board of Elections shall expire on May 1, 1969, or when their successors in office are appointed and qualified. The State Board of Elections shall consist of five registered voters whose terms of office shall begin on May 1, 1969, and shall continue for four years, and until their successors are appointed and qualified. The Governor shall appoint the members of this Board and likewise shall appoint their successors every four years at the expiration of each four-year term. Not more than three members of the Board shall be members of the same political party. The Governor shall appoint the members from a list of nominees submitted to him by the State party chairman of each of the two political parties having the highest number of registered affiliates as reflected by the latest registration statistics published by the State Board of Elections. Each party chairman shall submit a list of five nominees who are affiliated with that political party. Any vacancy occurring in the Board shall be filled by the Governor, and the person so appointed shall fill the unexpired term. The Governor shall fill the vacancy from a list of three nominees submitted to him by the State party chairman of the political party that nominated the vacating member as provided by 18 § 163–19 ELECTIONS & ELECTION LAWS the preceding paragraph. The three nominees must be affiliated with that political party. At the first meeting held after new appointments are made, the members of the State Board of Elections shall take the following oath: ‘‘I, TTTTTTTTTT, do solemnly swear (or affirm) that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina, and to the constitutional powers and authorities which are or may be estab-lished for the government thereof; that I will endeavor to support, maintain and defend the Constitution of said State, and that I will well and truly execute the duties of the office of member of the State Board of Elections according to the best of my knowledge and ability, according to law, so help me, God.’’ After taking the prescribed oath, the Board shall organize by electing one of its members chairman and another secretary. No person shall be eligible to serve as a member of the State Board of Elections who holds any elective or appointive office under the government of the United States, or of the State of North Carolina or any political subdivision thereof. No person who holds any office in a political party, or organization, or who is a candidate for nomination or election to any office, or who is a campaign manager or treasurer of any candidate in a primary or election shall be eligible to serve as a member of the State Board of Elections. Added by Laws 1967, c. 775, § 1. Amended by Laws 1975, c. 286; Laws 1985, c. 62, §§ 1, 1.1; S.L. 2005–276, § 23A.3, eff. July 1, 2005; S.L. 2006–262, § 4.2, eff. Aug. 27, 2006. Historical and Statutory Notes 2005 Legislation S.L. 2005–276, § 23A.3, eff. July 1, 2005, substituted ‘‘shall’’ for ‘‘may’’ af-ter ‘‘The Governor’’ in the second sen-tence. 2006 Legislation S.L. 2006–262, § 4.2, eff. Aug. 27, 2006, repealed the changes made by S.L. 2005–276, § 23A.3, eff. July 1, 2005. § 163–20. Meetings of Board; quorum; minutes (a) Call of Meeting.—The State Board of Elections shall meet at the call of the chairman whenever necessary to discharge the duties and functions imposed upon it by this Chapter. The chair-man shall call a meeting of the Board upon the written application or applications of any two members thereof. If there is no chairman, or if the chairman does not call a meeting within three days after receiving a written request or requests from two mem-bers, any three members of the Board shall have power to call a meeting of the Board, and any duties imposed or powers conferred on the Board by this Chapter may be performed or exercised at 19 ELECTION OFFICERS § 163–20 Note 2 that meeting, although the time for performing or exercising the same prescribed by this Chapter may have expired. (b) Place of Meeting.—Except as provided in subsection (c), below, the State Board of Elections shall meet in its offices in the City of Raleigh, or at another place in Raleigh to be designated by the chairman. However, subject to the limitation imposed by subsection (c), below, upon the prior written request of any four members, the State Board of Elections shall meet at any other place in the State designated by the four members. (c) Meetings to Investigate Alleged Violations of This Chapter.— When called upon to investigate or hear sworn alleged violations of this Chapter, the State Board of Elections shall meet and hear the matter in the county in which the violations are alleged to have occurred. (d) Quorum.—A majority of the members constitutes a quorum for the transaction of business by the State Board of Elections. If any member of the Board fails to attend a meeting, and by reason thereof there is no quorum, the members present shall adjourn from day to day for not more than three days, by the end of which time, if there is no quorum, the Governor may summarily remove any member failing to attend and appoint his successor. (e) Minutes.—The State Board of Elections shall keep minutes recording all proceedings and findings at each of its meetings. The minutes shall be recorded in a book which shall be kept in the office of the Board in Raleigh. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 793, § 3; Laws 1973, c. 1223, § 1. Notes of Decisions Construction and application 1 Venue 2 1. Construction and application Action challenging method of electing North Carolina Superior Court judges would be dismissed as against county boards of elections; county boards had no power to independently place candi-date on ballot in election, boards could not remove candidate from election bal-lot, and boards were merely acting in ministerial capacity and could only car-ry out duties as detailed by statute and State Board of Elections. Republican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Federal Civil Proce-dure O 1695 2. Venue For venue purposes, where public of-ficial is a party to action in his official capacity, he resides in judicial district where he maintains his official resi-dence, that is, where he performs his official duties. Republican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Federal Courts O 283 Venue in action challenging constitu-tionality of statutory method for electing North Carolina Superior Court judges did not lie in Middle District of North Carolina but did lie in the Eastern Dis-trict of North Carolina which was where legislature passed law establish-ing election system and where state board responsible for enforcing and im-plementing statute was located. Re-publican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Feder-al Courts O 92 20 § 163–21 ELECTIONS & ELECTION LAWS § 163–21. Compensation of Board members The members of the State Board of Elections shall be compen-sated for the time they are actually engaged in the discharge of their duties and for their traveling and other expenses necessary and incidental to the discharge of their duties in accordance with the provisions of Chapter 138 of the General Statutes. Added by Laws 1967, c. 775, § 1. § 163–22. Powers and duties of State Board of Elections (a) The State Board of Elections shall have general supervision over the primaries and elections in the State, and it shall have authority to make such reasonable rules and regulations with respect to the conduct of primaries and elections as it may deem advisable so long as they do not conflict with any provisions of this Chapter. (b) From time to time, the Board shall publish and furnish to the county and municipal boards of elections and other election officials a sufficient number of indexed copies of all election laws and Board rules and regulations then in force. It shall also publish, issue, and distribute to the electorate such materials explanatory of primary and election laws and procedures as the Board shall deem necessary. (c) The State Board of Elections shall appoint, in the manner provided by law, all members of the county boards of elections and advise them and municipal elections board members as to the proper methods of conducting primaries and elections. The Board shall require such reports from the county and municipal boards and election officers as are provided by law, or as are deemed necessary by the Board, and shall compel observance of the requirements of the election laws by county and municipal boards of elections and other election officers. In performing these duties, the Board shall have the right to hear and act on complaints arising by petition or otherwise, on the failure or neglect of a county or municipal board of elections to comply with any part of the election laws imposing duties upon such a board. The State Board of Elections shall have power to remove from office any member of a county or municipal board of elections for incompetency, neglect or failure to perform duties, fraud, or for any other satisfactory cause. Before exercising this power, the State Board shall notify the county or municipal board member affected and give him an opportunity to be heard. When any county board member shall be removed by the State Board of Elections, the vacancy occurring shall be filled by the State Board of Elections. When any municipal board member shall be re-moved by the State Board of Elections, the vacancy occurring 21 ELECTION OFFICERS § 163–22 shall be filled by the city council of the city appointing members of that board. (d) The State Board of Elections shall investigate when neces-sary or advisable, the administration of election laws, frauds and irregularities in elections in any county and municipality and special district, and shall report violations of the election laws to the Attorney General or district attorney or prosecutor of the district for further investigation and prosecution. (e) The State Board of Elections shall determine, in the manner provided by law, the form and content of ballots, instruction sheets, pollbooks, tally sheets, abstract and return forms, certifi-cates of election, and other forms to be used in primaries and elections. The Board shall furnish to the county boards of elec-tions the registration application forms required pursuant to G.S. 163–82.3. The State Board of Elections shall direct the county boards of elections to purchase a sufficient quantity of all forms attendant to the registration and elections process. In addition, the State Board shall provide a source of supply from which the county boards of elections may purchase the quantity of pollbooks needed for the execution of its responsibilities. In the preparation of ballots, pollbooks, abstract and return forms, and all other forms, the State Board of Elections may call to its aid the Attorney General of the State, and it shall be the duty of the Attorney General to advise and aid in the preparation of these books, ballots and forms. (f) The State Board of Elections shall prepare, print, distribute to the county and municipal boards of elections all ballots for use in any primary or election held in the State which the law provides shall be printed and furnished by the State to the counties. The Board shall instruct the county boards of elections as to the printing of county and local ballots. (g) The State Board of Elections shall certify to the appropriate county boards of elections the names of candidates for district offices who have filed notice of candidacy with the Board and whose names are required to be printed on county ballots. (h) It shall be the duty of the State Board of Elections to tabulate the primary and election returns, to declare the results, and to prepare abstracts of the votes cast in each county in the State for offices which, according to law, shall be tabulated by the Board. (i) The State Board of Elections shall make recommendations to the Governor and legislature relative to the conduct and adminis-tration of the primaries and elections in the State as it may deem advisable. (j) Notwithstanding the provisions of any other section of this Chapter, the State Board of Elections is empowered to have access 22 § 163–22 ELECTIONS & ELECTION LAWS to any ballot boxes and their contents, any voting machines and their contents, any registration records, pollbooks, voter authoriza-tion cards or voter lists, any lists of absentee voters, any lists of presidential registrants under the Voting Rights Act of 1965 as amended, and any other voting equipment or similar records, books or lists in any precinct, county, municipality or electoral district over whose elections it has jurisdiction or for whose elections it has responsibility. Text of subsec. (k) eff. until Jan. 1, 2010. (k) Notwithstanding the provisions contained in Article 20 or Article 21 of Chapter 163 the State Board of Elections shall be authorized, by resolution adopted prior to the printing of the primary ballots, to reduce the time by which absentee ballots are required to be printed and distributed for the primary election from 50 days to 45 days. This authority shall not be authorized for absentee ballots to be voted in the general election. Text of subsec. (k) eff. Jan. 1, 2010. (k) Notwithstanding the provisions contained in Article 20 or Article 21 of Chapter 163 the State Board of Elections shall be authorized, by resolution adopted prior to the printing of the primary ballots, to reduce the time by which absentee ballots are required to be printed and distributed for the primary election from 50 days to 45 days. This authority shall not be authorized for absentee ballots to be voted in the general election, except if the law requires ballots to be available for mailing 60 days before the general election, and they are not ready by that date, the State Board of Elections shall allow the counties to mail them out as soon as they are available. (l ) Notwithstanding any other provision of law, in order to obtain judicial review of any decision of the State Board of Elections rendered in the performance of its duties or in the exercise of its powers under this Chapter, the person seeking review must file his petition in the Superior Court of Wake County. (m) Repealed by S.L. 2001–398, § 4, eff. Jan. 1, 2002. (n) The State Board of Elections shall provide specific training to county boards of elections regarding rules for registering stu-dents. (o) The State Board of Elections shall promulgate minimum requirements for the number of pollbooks, voting machines and curbside ballots to be available at each precinct, such that more of such will be available at general elections and a sufficient number will be available to allow voting without excessive delay. The State Board of Elections shall provide for a training and screening program for chief judges and judges. The State Board of Elec- 23 ELECTION OFFICERS § 163–22 tions shall provide additional testing of voting machines to ensure that they operate properly even with complicated ballots. (p) The State Board of Elections shall require counties with voting systems to have sufficient personnel available on election day with technical expertise to make repairs in such equipment, to investigate election day problems, and assist in curbside voting. (q) The State Board of Elections may assign responsibility for enumerated administrative matters to the Executive Director by resolution, if that resolution provides a process for the State Board to review any administrative decision made by the Executive Director. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 47, § 2; Laws 1973, c. 793, § 2; Laws 1975, c. 19, § 65; Laws 1977, c. 661, § 6; Laws 1979, c. 411, § 1; Laws 1981, c. 556; Laws 1985 (Reg. Sess., 1986), c. 986, §§ 2, 3; Laws 1985 (Reg. Sess., 1986), c. 987, § 3; Laws 1987, c. 485, §§ 2, 5; Laws 1987, c. 509, § 9; Laws 1987, c. 642, § 3; Laws 1989, c. 635, § 5; Laws 1991, c. 727, §§ 5.2, 7; Laws 1993 (Reg. Sess., 1994), c. 762, §§ 5, 12, eff. Jan. 1, 1995; Laws 1995, c. 509, § 114, eff. July 29, 1995; S.L. 1999–424, § 7(a), eff. Aug. 5, 1999; S.L. 2001–398, § 4, eff. Jan. 1, 2002; S.L. 2009–537, § 10, eff. Jan. 1, 2010; S.L. 2009–541, § 1, eff. Aug. 28, 2009. Historical and Statutory Notes Laws 1993, c. 762, §§ 5 and 73, pro-vide: ‘‘Section 5. Wherever the term ‘reg-istrar’ appears in Chapter 163 of the General Statutes, the term shall be changed to read ‘chief judge’.’’ ‘‘Section 73. Sections 1 through 68 of this act become effective January 1, 1995, and apply to all primaries and elections occurring on or after that date. The remainder of this act is effec-tive upon ratification and shall apply to all primaries and elections occurring on or after the date of ratification. Prose-cutions for, or sentences based on, of-fenses occurring before the effective date of any section of this act are not abated or affected by this act and the statutes that would be applicable to those prosecutions or sentences but for the provisions of this act remain appli-cable to those prosecutions or sen-tences.’’ [Amended by Laws 1995, c. 507, § 25.10(c), eff. July 1, 1995; Laws 1995, c. 608, § 1, eff. July 1, 1996.] 2001 Legislation S.L. 2001–398, § 4, eff. Jan. 1, 2002, repealed subsec. (m). 2009 Legislation S.L. 2009–537, § 10, in the second sentence, added ‘‘, except if the law requires ballots to be available for mail-ing 60 days before the general election, and they are not ready by that date, the State Board of Elections shall allow the counties to mail them out as soon as they are available.’’ S.L. 2009–537, § 11, provides: "This act becomes effective January 1, 2010, and applies with respect to elec-tions held on or after that date." S.L. 2009–541, § 1, designated the second paragraph of subsec. (o) as sub-sec. (p), and added subsec. (q). Cross References Grounds for removal; political activities by boards of election members, see § 163–40. Administrative Code References Approval and operation of voting systems, see 8 NCAC 4.0301 et seq. Ballots, see 8 NCAC 6B.0101 et seq. Conduct of vote recounts, see 8 NCAC 9.0106 et seq. 24 § 163–22 ELECTIONS & ELECTION LAWS County board of elections, voting procedures and duties, 8 NCAC 12.0101 et seq. Election protests, see 8 NCAC 2.0110 et seq. Filing of notice of candidacy for office of superior court judge, see 8 NCAC 7.0003 et seq. Investigation and reports of criminal violation, see 8 NCAC 3.0301 et seq. Members of county board of elections, see 8 NCAC 3.0101 et seq. Precinct election officials, see 8 NCAC 3.0201 et seq. Voter registration, see 8 NCAC 7B.0101 et seq. Voting places, see 8 NCAC 10B.0101 et seq. Notes of Decisions Construction and application 2 Correction or amendment of election returns 5 Determination of election results 4 Federal Voting Rights Act 3 Injunction 10 Investigations 6-8 In general 6 Judicial review 8 Trial or hearing 7 Judicial action 11 Judicial review, investigations 8 New political parties 9 Trial or hearing, investigations 7 Validity 1 1. Validity Notice of, and opportunity for, hear-ing on petition for creation of new polit-ical party are necessary to meet consti-tutional requirement of ‘‘due process of law,’’ which hears before it condemns, proceeds on inquiry, and renders judg-ment only after trial. States’ Rights Democratic Party v. State Bd. of Elec-tions, 1948, 49 S.E.2d 379, 229 N.C. 179. Constitutional Law O 4475 The statutory power of State Board of Elections to make reasonable rules for carrying into effect law governing cre-ation of new political parties is subject to restriction that such rules must not conflict with any provisions of such law, even if such restriction were not specifi-cally annexed by statute, to grant of such power, as constitution forbids leg-islature to delegate power to make law to any other body. States’ Rights Dem-ocratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Administrative Law And Procedure O 387; Elections O 54 Regulations of State Board of Elec-tions, requiring that voters petitioning for creation of new political party at-tach to and file with petition certificates from chairman of county boards of elec-tions that registration and poll books disclose that requisite number of sign-ers of petition are registered voters who have not voted in primary election of any existing party during year in which petition is signed, cannot be sustained as proper exercise of state board’s rule making power for mere purpose of es-tablishing expeditious procedure to de-termine whether petition is signed by requisite number of registered voters. States’ Rights Democratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Administrative Law And Procedure O 390.1; Elections O 54 2. Construction and application A statute authorizing state board of elections to canvass returns and deter-mine who was nominated or elected was not a denial or negation of the board’s supervisory powers which were to be exercised prior to final acceptance of the returns. Burgin v. North Car-olina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 54 3. Federal Voting Rights Act Even if Executive Secretary of State Board of Elections of North Carolina personally delivered amendment to vot-ing law to assistant United States Attor-ney General, where state did not re-quest Attorney General’s consideration of change pursuant to statute rendering inoperative any change of standard, practice or procedure as to voting in areas covered by Voting Rights Act, un-less change receives prior judicial ap-proval or has been submitted to Attor-ney General who has not interposed objections, delivery did not constitute ‘‘submission’’ within the Act. Clayton v. North Carolina State Bd. of Elec-tions, 1970, 317 F.Supp. 915. Elec-tions O 24 Section of Voting Rights Act render-ing inoperative any standard, practice or procedure as to voting different from that in force or effect on November 1, 1964, unless it has received judicial ap-proval or has been submitted to attor-ney general who has not objected with- 25 ELECTION OFFICERS § 163–22 Note 6 in 60 days is applicable to any change in such standard, practice or procedure and not just those which have a discer-nible racial discriminatory purpose. Clayton v. North Carolina State Bd. of Elections, 1970, 317 F.Supp. 915. Elections O 10 4. Determination of election results Declaration of election as contained in the certificate conclusively settles pri-ma facie the right of the person so as-certained and declared to be elected to be inducted into and exercise the duties of the office. In re Election Protest of Fletcher, 2006, 175 N.C.App. 755, 625 S.E.2d 564. Elections O 267 Where only protest before state board of elections involving returns from mul-tiple county senatorial districts related to one county, when amended returns from that county were certified in ac-cordance with findings of fact and con-clusions of law of state board, it would have legal duty to declare results of primary election and to certify nominee. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 153 While returns certified to state board of elections or county board of elec-tions, nothing else appearing, will be deemed prima facie correct, such certi-fication is not conclusive and returns certified by county board may be collat-erally attacked. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elec-tions O 267 County board of elections is proper agency to canvass returns in primary for selection of party nominees for county offices as well as general elec-tion to fill such offices. Ponder v. Jos-lin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 126(7) State board of elections is appropriate agency to canvass and judicially declare results of primary for nomination of candidate in senatorial district com-posed of more than one county. Pon-der v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 126(7) County board of elections in multiple county senatorial district has no power to canvass election returns and deter-mine judicially nominee in such district but such power is vested exclusively in state board. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elec-tions O 126(7) 5. Correction or amendment of elec-tion returns Primary election returns which were amended by county board of elections pursuant to directions of state board of elections, made in good faith, could not be declared void as a matter of law, where amended returns appeared regu-lar on their face and they were im-peached only by an affidavit of the county board chairman who participat-ed in a meeting which was duly called and held for the purpose of passing on the amended returns, and who certified to their correctness. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 Amendments to primary election re-turns pursuant to direction of state board of elections were void as a matter of law, where the returns were amend-ed by two members of the county elec-tion boards without knowledge or con-sent of third member. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 A county board of elections cannot change or amend its returns to the state board of elections without some official action on the part of the county board. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 6. Investigations—In general Authority of State Board of Elections to conduct election investigation and to enter order calling for new election is not dependent upon filing of timely pro-test to election. Appeal of Judicial Re-view by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 271 State Board of Elections was not without jurisdiction and authority to de-clare portions of county general election void and to order new election for some of county officers on its own motion without election contest having been filed with Board. Appeal of Judicial Review by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 271 Notice, which was provided by State Board of Elections of a public hearing on county general election notifying public generally, county board of elec- 26 § 163–22 ELECTIONS & ELECTION LAWS Note 6 tions, and each candidate for county office whose name was on ballot that inquiry had been launched into conduct of election and particularly processes involving absentee ballots, was suffi-cient notice of charges even though Board failed to comply strictly with statutory notice requirements for elec-tion protests, as there was no action against any specific candidate and there was no specific charge against any can-didate. Appeal of Judicial Review by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 280 Authority of State Board of Elections to conduct investigation and to order a new election of town commissioners was not dependent upon filing of timely protest. Sharpley v. State Bd. of Elec-tions, 1974, 209 S.E.2d 513, 23 N.C.App. 650. Elections O 271 When protest has been filed challeng-ing legality of returns certified by coun-ty board of elections, state board of elections can go behind returns as certi-fied and its duty is not restricted to computation and tabulation of returns as certified by various county boards. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 259 State board of elections is not limited merely to investigating frauds and irreg-ularities in any county for sole purpose of making report of such frauds and irregularities to attorney general or so-licitor for further investigation and prosecution. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elec-tions O 259 State board of elections is quasi-judi-cial agency and may, in primary or elec-tion in multiple county district, investi-gate alleged frauds and irregularities in any county upon appeal from county board or upon protest filed in apt time with state board and may take such action as findings of fact may justify, and may direct county board to amend returns in accordance therewith. Pon-der v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 153; Elections O 259 Whenever protest is filed before coun-ty board of elections in multiple county senatorial district, charging fraud and misconduct in connection with primary or election, and there is appeal from board or upon protest filed in apt time with state board, state board has right and duty to investigate charges and de-termine actual total of valid ballots cast and to require county board to amend returns accordingly, and, based upon its findings and amended returns, to deter-mine which candidate is entitled to be certified as nominee in multiple county senatorial district. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 126(7); Elections O 259; Elections O 260 7. —— Trial or hearing, investiga-tions Alleged denial of cross-examination of witnesses at preliminary inquiry into county general election was not unlawful and unconstitutional where chairman of hearing indicated that if preliminary proceedings were such as to require further proceedings, any successful candidate who contested or-der for new election would have right to recall any witness for cross-exami-nation, at least two witnesses were re-called and made available for cross-examination, and though successful candidates were so advised, they did not ask that any witness not recalled be recalled and be made available for cross-examination. Appeal of Judicial Review by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 300 Decision of State Board of Elections, which was made after Board retired into executive session at conclusion of testimony in election inquiry hearing, was not made on unlawful procedures and did not result in any prejudice to successful candidates. Appeal of Judi-cial Review by Republican Candidates for Election in Clay County, 1980, 264 S.E.2d 338, 45 N.C.App. 556, review denied 267 S.E.2d 672, 299 N.C. 736. Elections O 300 8. —— Judicial review, investigations Findings of fact and conclusions of law made by state board of elections may be reviewed in action instituted in Superior Court of Wake county under statute; and in such an action appellant is not entitled to a jury trial. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 269; Jury O 19(1) When state board of elections obtains jurisdiction of election protest on ap-peal from single county in multiple county senatorial district, or by filing in apt time of protest directly with state board, its decision can be reviewed only as provided in statute, and superior 27 ELECTION OFFICERS § 163–22 Note 10 court has no original jurisdiction to hear and determine the controversy. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 275 Superior Court of Madison county was without jurisdiction to review order of state board of elections. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Elections O 275 The courts will not undertake to con-trol the state board of elections in the exercise of its duty of general supervi-sion over primaries and elections, so long as such supervision conforms to the rudiments of fair play and the stat-utes on the subject. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Constitutional Law O 2547 9. New political parties The duty to determine whether peti-tion for organization of new political party is in accordance with statutory requirements devolves in first instance on State Board of Elections, which must ascertain whether petition is signed by required number of qualified registered voters. States’ Rights Demo-cratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 153 The State Board of Elections has au-thority to determine registration or non-registration of signers of petition for creation of new political party by exam-ination of registration books through agency of county election boards as matter of administrative routine before calling on signers to prove signature of petition by requisite number of qualified voters. States’ Rights Democratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 153 The statute governing creation of new political parties imposes no duty on State Board of Elections to determine sufficiency of petition for organization of new party at time of its filing, but purpose of statutory provision for filing of petition with board at least 90 days before general election is to afford board approximately 60 days time in which to determine sufficiency of peti-tion and print ballots bearing names of new party’s nominees. States’ Rights Democratic Party v. State Bd. of Elec-tions, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 153 Regulations of State Board of Elec-tions, requiring voters desiring to create new political party to attach to and file with petition therefor certificates from chairmen of county boards of elections that registration and poll books disclose that required number of signers of peti-tion are registered voters, who have not voted in primary election of any existing party during year in which petition is signed, are invalid as legislating rather than regulating. States’ Rights Demo-cratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Constitutional Law O 2621 The statute providing for creation of new political parties confers on any qualified voter legal right to sign peti-tion therefor, irrespective of whether he has participated in primary election of existing political party during year in which petition is signed. States’ Rights Democratic Party v. State Bd. of Elec-tions, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 121(1) The primary election laws do not modify statute giving any qualified voter legal right to sign petition for creation of new political party, regardless of whether he has voted in primary elec-tion of existing party during year in which petition is signed and filed, as such laws are inapplicable to new par-ties created by such petitions, but apply only to existing political parties. States’ Rights Democratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 121(1) The Supreme Court cannot determine whether primary election laws impose on qualified voters, participating in pri-mary elections of existing political par-ties, moral obligation to such party to refrain from signing statutory petition for creation of new political party dur-ing year in which such elections are held, but must decide whether partic-ipation in such elections legally disables qualified electors to sign such a petition during that year. States’ Rights Demo-cratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Elections O 154(1) 10. Injunction Contestant claiming to be entitled to be certified as party nominee for state senator in multiple county district was not entitled to have state board of elec-tions restrained in order to keep board from completing investigation of protest filed, finding facts with respect thereto, and making conclusions of law based thereon. Ponder v. Joslin, 1964, 138 S.E.2d 143, 262 N.C. 496. Injunction O 80 28 § 163–22 ELECTIONS & ELECTION LAWS Note 10 The unsuccessful candidate for Demo-cratic nominee for Congress was enti-tled to an order staying the state board of elections from certifying his oppo-nent as the nominee pending state board’s receipt of final returns from county boards whose original returns were void as a matter of law for having been amended by two members of county election boards without knowl-edge or consent of third member. Bur-gin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Injunction O 80 11. Judicial action Venue in action challenging constitu-tionality of statutory method for electing North Carolina Superior Court judges did not lie in Middle District of North Carolina but did lie in the Eastern Dis-trict of North Carolina which was where legislature passed law establish-ing election system and where state board responsible for enforcing and im-plementing statute was located. Re-publican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Feder-al Courts O 92 Action challenging method of electing North Carolina Superior Court judges would be dismissed as against county boards of elections; county boards had no power to independently place candi-date on ballot in election, boards could not remove candidate from election bal-lot, and boards were merely acting in ministerial capacity and could only car-ry out duties as detailed by statute and State Board of Elections. Republican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Federal Civil Proce-dure O 1695 Where petition for creation of new political party was shown beyond doubt to have been signed by at least 10,000 qualified voters and otherwise met ev-ery statutory requirement, Superior Court properly granted writ of manda-mus, ordering State Board of Elections to cause names of new party’s nominees for President and Vice-President of the United States to be printed on official ballots for general election. States’ Rights Democratic Party v. State Bd. of Elections, 1948, 49 S.E.2d 379, 229 N.C. 179. Mandamus O 74(3) § 163–22.1. Repealed by S.L. 2001–398, § 2, eff. Jan. 1, 2002 Historical and Statutory Notes The repealed section, which related to power of the State Board to order new elections, was derived from: Laws 1973, c. 793, § 5. Laws 1982, c. 1265, § 2. Laws 1983, c. 210. Laws 1995 (Reg. Sess., 1996), c. 694, § 2. S.L. 1999–424, § 1. § 163–22.2. Power of State Board to promulgate temporary rules and regulations In the event any portion of Chapter 163 of the General Statutes or any State election law or form of election of any county board of commissioners, local board of education, or city officer is held unconstitutional or invalid by a State or federal court or is unen-forceable because of objection interposed by the United States Justice Department under the Voting Rights Act of 1965 and such ruling adversely affects the conduct and holding of any pending primary or election, the State Board of Elections shall have authority to make reasonable interim rules and regulations with respect to the pending primary or election as it deems advisable so long as they do not conflict with any provisions of Chapter 163 of the General Statutes and such rules and regulations shall become null and void 60 days after the convening of the next regular session of the General Assembly. The State Board of Elections shall also be authorized, upon recommendation of the Attorney 29 ELECTION OFFICERS § 163–22.3 General, to enter into agreement with the courts in lieu of pro-tracted litigation until such time as the General Assembly con-venes. Added by Laws 1981, c. 741. Amended by Laws 1982 (2nd Ex. Sess.), c. 3, § 19.1; Laws 1985, c. 563, § 15; Laws 1986 (1st Ex. Sess.), c. 3, § 1. Administrative Code References Filing of notice of candidacy for office of superior court judge, see 8 NCAC 7.0003 et seq. Notes of Decisions Construction and application 1 Special elections 2 1. Construction and application Remedial statute, such as one giving State Board of Elections authority to make reasonable interim rules and regulations with respect to pending primary or election if objection is in-terposed by United States Justice De-partment under Voting Rights Act of 1965, must be construed liberally in light of evil sought to be eliminated, remedies intended to be applied, and legislative objective. Newsome v. North Carolina State Bd. of Elections, 1992, 415 S.E.2d 201, 105 N.C.App. 499. Statutes O 236 Statute granting State Board of Elec-tions authority to make reasonable in-terim rules and regulations with respect to pending primary or election which became null and void 60 days after con-vening of next regular session of Gener-al Assembly exempted Board from rule-making procedures of Administrative Procedure Act (APA); APA states that it applies to every agency except to the extent and in the particulars that any statute makes specific provisions to the contrary and election statute contained specific provisions to the contrary. Newsome v. North Carolina State Bd. of Elections, 1992, 415 S.E.2d 201, 105 N.C.App. 499. Administrative Law And Procedure O 384; Elections O 54 2. Special elections Effect of improper submission to United States Attorney General for pre-clearance of special election to incorpo-rate a town was tantamount to objec-tion by Attorney General and sufficient to authorize State Board of Elections to proceed under statute giving Board au-thority to make reasonable interim rules and regulations with respect to pending primary or election when objection is interposed by Justice Department under Voting Rights Act. Newsome v. North Carolina State Bd. of Elections, 1992, 415 S.E.2d 201, 105 N.C.App. 499. Municipal Corporations O 12(8) Action of State Board of Elections in ordering special municipal election did not become null and void 60 days after its promulgation under statute giving Board authority to make reasonable in-terim rules and regulations with respect to pending primary or election which would become null and void 60 days after convening of next regular session of General Assembly when objection is interposed by United States Justice De-partment under Voting Rights Act; when state ordered special election in even-numbered year, there was no ‘‘reg-ular’’ session of the General Assembly but, rather, session of General Assembly held in 1990 was a continuation of 1989 ‘‘regular’’ session. Newsome v. North Carolina State Bd. of Elections, 1992, 415 S.E.2d 201, 105 N.C.App. 499. Municipal Corporations O 12(8) § 163–22.3. State Board of Elections littering notification At the time an individual files with the State Board of Elections a notice of candidacy pursuant to G.S. 163–106, 163–112, 163–291, 163–294.2, or 163–323, is certified to the State Board of Elections by a political party executive committee to fill a nomina-tion vacancy pursuant to G.S. 163–114, is certified to the State Board of Elections by a new political party as that party’s nominee 30 § 163–22.3 ELECTIONS & ELECTION LAWS pursuant to G.S. 163–98, qualifies with the State Board of Elec-tions as an unaffiliated or write-in candidate pursuant to Article 11 of this Chapter, or formally initiates a candidacy with the State Board of Elections pursuant to any statute or local act, the State Board of Elections shall notify the candidate of the provisions concerning campaign signs in G.S. 136–32 and G.S. 14–156, and the rules adopted by the Department of Transportation pursuant to G.S. 136–18. Added by S.L. 2001–512, § 7, eff. Jan. 4, 2002. § 163–23. Powers of chairman in execution of Board duties In the performance of the duties enumerated in this Chapter, the chairman of the State Board of Elections shall have power to administer oaths, issue subpoenas, summon witnesses, and compel the production of papers, books, records and other evidence. Upon the written request or requests of two or more members of the State Board of Elections, he shall issue subpoenas for designat-ed witnesses or identified papers, books, records and other evi-dence. In the absence of the chairman or upon his refusal to act, any two members of the State Board of Elections may issue subpoenas, summon witnesses, and compel the production of papers, books, records and other evidence. In the absence of the chairman or upon his refusal to act, any member of the Board may administer oaths. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 793, § 4. § 163–24. Power of State Board of Elections to maintain order The State Board of Elections shall possess full power and authority to maintain order, and to enforce obedience to its lawful commands during its sessions, and shall be constituted an inferior court for that purpose. If any person shall refuse to obey the lawful commands of the State Board of Elections or its chairman, or by disorderly conduct in its hearing or presence shall interrupt or disturb its proceedings, it may, by an order in writing, signed by its chairman, and attested by its secretary, commit the person so offending to the common jail of the county for a period not exceeding 30 days. Such order shall be executed by any sheriff to whom the same shall be delivered, or if a sheriff shall not be present, or shall refuse to act, by any other person who shall be deputed by the State Board of Elections in writing, and the keeper of the jail shall receive the person so committed and safely keep him for such time as shall be mentioned in the commitment: Provided, that any person committed under the provisions of this section shall have the right to post a two hundred dollar ($200.00) 31 ELECTION OFFICERS § 163–26 bond with the clerk of the superior court and appeal to the superior court for a trial on the merits of his commitment. Added by Laws 1967, c. 775, § 1. Amended by Laws 1995, c. 379, § 14(e), eff. July 6, 1995. Historical and Statutory Notes Laws 1995, c. 379, § 20, provides that this act ‘‘does not affect pending litigation’’. § 163–25. Authority of State Board to assist in litigation The State Board of Elections shall possess authority to assist any county or municipal board of elections in any matter in which litigation is contemplated or has been initiated, provided, the county or municipal board of elections in such county petitions, by majority resolution, for such assistance from the State Board of Elections and, provided further, that the State Board of Elections determines, in its sole discretion by majority vote, to assist in any such matter. It is further stipulated that the State Board of Elections shall not be authorized under this provision to enter into any litigation in assistance to counties, except in those instances where the uniform administration of Chapter 163 of the General Statutes of North Carolina has been, or would be threatened. The Attorney General shall provide the State Board of Elections with legal assistance in execution of its authority under this section or, in his discretion, recommend that private counsel be employed. If the Attorney General recommends employment of private counsel, the State Board may employ counsel with the approval of the Governor. Added by Laws 1969, c. 408, § 1. Amended by Laws 1973, c. 793, § 6; Laws 1983, c. 324, § 2. § 163–26. Executive Director of State Board of Elections There is hereby created the position of Executive Director of the State Board of Elections, who shall perform all duties imposed upon him by statute and such duties as might be assigned to him by the State Board of Election.1 Added by Laws 1973, c. 1272, § 4. Amended by S.L. 2001–319, § 11, eff. July 28, 2001. 1 So in original. Historical and Statutory Notes 2001 Legislation S.L. 2001–319, § 11, eff. July 28, 2001, substituted ‘‘Executive Director’’ for ‘‘Executive Secretary-Director’’ and ‘‘State Executive Secretary-Director’’ throughout this section. 32 § 163–27 ELECTIONS & ELECTION LAWS § 163–27. Executive Director to be appointed by Board The appointment of the Executive Director of the State Board of Elections is extended to May 15, 1989, unless removed for proper cause, and thereafter the Board shall appoint an Executive Di-rector for a term of four years with compensation to be deter-mined by the Department of Personnel. He shall serve, unless removed for cause, until his successor is appointed. Such Execu-tive Director shall be responsible for staffing, administration, exe-cution of the Board’s decisions and orders and shall perform such other responsibilities as may be assigned by the Board. In the event of a vacancy, the vacancy shall be filled for the remainder of the term. Added by Laws 1973, c. 1409, § 3. Amended by Laws 1985, c. 62, § 2; S.L. 2001–319, § 11, eff. July 28, 2001. Historical and Statutory Notes 2001 Legislation S.L. 2001–319, § 11, eff. July 28, 2001, substituted ‘‘Executive Director’’ for ‘‘Executive Secretary-Director’’ and ‘‘State Executive Secretary-Director’’ throughout this section. § 163–27.1. Emergency powers The Executive Director, as chief State elections official, may exercise emergency powers to conduct an election in a district where the normal schedule for the election is disrupted by any of the following: (1) A natural disaster. (2) Extremely inclement weather. (3) An armed conflict involving United States Armed Forces, or mobilization of those forces, including State National Guard and reserve components. In exercising those emergency powers, the Executive Director shall avoid unnecessary conflict with the provisions of this Chap-ter. The Executive Director shall adopt rules describing the emer-gency powers and the situations in which the emergency powers will be exercised. Added by S.L. 1999–455, § 23. Amended by S.L. 2001–319, § 11, eff. July 28, 2001. Historical and Statutory Notes S.L. 1999–455, § 24 provides: ‘‘This act applies to elections held on or after January 1, 2000, except that the State Board of Elections may issue rules required or permitted by this act prior to that date.’’ 2001 Legislation S.L. 2001–319, § 11, eff. July 28, 2001, substituted ‘‘Executive Director’’ for ‘‘Executive Secretary-Director’’ and ‘‘State Executive Secretary-Director’’ throughout this section. § 163–28. State Board of Elections independent agency The State Board of Elections shall be and remain an indepen-dent regulatory and quasi-judicial agency and shall not be placed 33 ELECTION OFFICERS § 163–30 within any principal administrative department. The State Board of Elections shall exercise its statutory powers, duties, functions, authority, and shall have all powers and duties conferred upon the heads of principal departments under G.S. 143B-10. Added by Laws 1973, c. 1409, § 2. § 163–29. Reserved Article 4 County Boards of Elections Section 163–30. County boards of elections; appointments; terms of office; qualifications; vacancies; oath of office; instructional meetings. 163–31. Meetings of county boards of elections; quorum; minutes. 163–32. Compensation of members of county boards of elections. 163–33. Powers and duties of county boards of elections. 163–33.1. Power of chairman to administer oaths. 163–33.2. Chairman and county board to examine voting machines. 163–33.3. County board of elections littering notification. 163–34. Power of county board of elections to maintain order. 163–35. Director of elections to county board of elections; appoint-ment; compensation; duties; dismissal. 163–36. Modified full-time offices. 163–37. Duty of county board of commissioners. § 163–30. County boards of elections; appointments; terms of office; qualifications; vacancies; oath of office; instruc-tional meetings In every county of the State there shall be a county board of elections, to consist of three persons of good moral character who are registered voters in the county in which they are to act. Members of county boards of elections shall be appointed by the State Board of Elections on the last Tuesday in June 1985, and every two years thereafter, and their terms of office shall continue for two years from the specified date of appointment and until their successors are appointed and qualified. Not more than two members of the county board of elections shall belong to the same political party. No person shall be eligible to serve as a member of a county board of elections who holds any elective office under the govern-ment of the United States, or of the State of North Carolina or any political subdivision thereof. No person who holds any office in a state, congressional district, county or precinct political party or organization, or who is a campaign manager or treasurer of any candidate or political party in a primary or election, shall be eligible to serve as a member of a county board of elections, provided however that the position of 34 § 163–30 ELECTIONS & ELECTION LAWS delegate to a political party convention shall not be considered an office for the purpose of this section. No person shall be eligible to serve as a member of a county board of elections who is a candidate for nomination or election. No person shall be eligible to serve as a member of a county board of elections who is the wife, husband, son, son-in-law, daughter, daughter-in-law, mother, mother-in-law, father, father-in- law, sister, sister-in-law, brother, brother-in-law, aunt, uncle, niece, or nephew of any candidate for nomination or election. Upon any member of the board of elections becoming ineligible, that member’s seat shall be declared vacant. This paragraph only applies if the county board of elections is conducting the election for which the relative is a candidate. The State chairman of each political party shall have the right to recommend to the State Board of Elections three registered voters in each county for appointment to the board of elections for that county. If such recommendations are received by the Board 15 or more days before the last Tuesday in June 1985, and each two years thereafter, it shall be the duty of the State Board of Elections to appoint the county boards from the names thus recommended. Whenever a vacancy occurs in the membership of a county board of elections for any cause the State chairman of the political party of the vacating member shall have the right to recommend two registered voters of the affected county for such office, and it shall be the duty of the State Board of Elections to fill the vacancy from the names thus recommended. At the meeting of the county board of elections required by G.S. 163–31 to be held on Tuesday following the third Monday in July in the year of their appointment the members shall take the following oath of office: ‘‘I, TTTTTTTTTT, do solemnly swear (or affirm) that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina and to the constitutional powers and authorities which are or may be established for the government thereof; that I will endeavor to support, maintain and defend the Constitution of said State, not inconsistent with the Constitution of the United States; and that I will well and truly execute the duties of the office of member of the TTTTTTTTTT County Board of Elections to the best of my knowledge and ability, according to law; so help me God.’’ Each member of the county board of elections shall attend each instructional meeting held pursuant to G.S. 163–46, unless ex-cused for good cause by the chairman of the board, and shall be 35 ELECTION OFFICERS § 163–31 paid the sum of twenty-five dollars ($25.00) per day for attending each of those meetings. Added by Laws 1967, c. 775, § 1. Amended by Laws 1969, c. 208, § 1; Laws 1973, c. 793, § 7; Laws 1973, c. 1094; Laws 1973, c. 1344, § 4; Laws 1975, c. 19, § 66; Laws 1975, c. 159, § 1; Laws 1981, c. 954, § 1; Laws 1983, c. 617, §§ 1, 2; Laws 1985, c. 472, § 4; S.L. 1997–211, § 1, eff. June 19, 1997. Historical and Statutory Notes S.L. 1997–211, § 2, provides: ‘‘This act is effective when it becomes law and applies to appointments to county boards of elections for terms commencing on or after June 24, 1997.’’ § 163–31. Meetings of county boards of elections; quorum; minutes In each county of the State the members of the county board of elections shall meet at the courthouse or board office at noon on the Tuesday following the third Monday in July in the year of their appointment by the State Board of Elections and, after taking the oath of office provided in G.S. 163–30, they shall organize by electing one member chairman and another member secretary of the county board of elections. On the Tuesday following the third Monday in August of the year in which they are appointed the county board of elections shall meet and appoint precinct chief judges and judges of elections. The board may hold other meet-ings at such times as the chairman of the board, or any two members thereof, may direct, for the performance of duties pre-scribed by law. A majority of the members shall constitute a quorum for the transaction of board business. The chairman shall notify, or cause to be notified, all members regarding every meet-ing to be held by the board. The county board of elections shall keep minutes recording all proceedings and findings at each of its meetings. The minutes shall be recorded in a book which shall be kept in the board office and it shall be the responsibility of the secretary, elected by the board, to keep the required minute book current and accurate. The secretary of the board may designate the director of elections to record and maintain the minutes under his supervision. Added by Laws 1967, c. 775, § 1. Amended by Laws 1969,c. 208, § 2; Laws 1975, c. 159, § 2; Laws 1977, c. 626, § 1; Laws 1983, c. 617, § 3; Laws 1993 (Reg. Sess., 1994), c. 762, § 13, eff. Jan. 1, 1995; Laws 1995, c. 243, § 1, eff. Jan. 1, 1996. Historical and Statutory Notes Laws 1993, c. 762, § 73, provides: ‘‘Sections 1 through 68 of this act become effective January 1, 1995, and apply to all primaries and elections oc-curring on or after that date. The re-mainder of this act is effective upon ratification and shall apply to all prima-ries and elections occurring on or after the date of ratification. Prosecutions for, or sentences based on, offenses oc- 36 § 163–31 ELECTIONS & ELECTION LAWS curring before the effective date of any section of this act are not abated or affected by this act and the statutes that would be applicable to those prosecu-tions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.’’ [Amended by Laws 1995, c. 507, § 25.10(c), eff. July 1, 1995; Laws 1995, c. 608, § 1, eff. July 1, 1996.] Laws 1995, c. 243, § 1, provides: ‘‘Wherever the term ‘supervisor’ ap-pears in the General Statutes of North Carolina or in any local act in reference to the county supervisor of elections as provided in G.S. 163–35, the term is changed to read ‘director.’ ’’ Cross References Precinct chief judges, see § 163–41. § 163–32. Compensation of members of county boards of elec-tions In full compensation of their services, members of the county board of elections (including the chairman) shall be paid by the county twenty-five dollars ($25.00) per meeting for the time they are actually engaged in the discharge of their duties, together with reimbursement of expenditures necessary and incidental to the discharge of their duties; provided that members are not entitled to be compensated for more than one meeting held in any one 24–hour period. In its discretion, the board of county commis-sioners of any county may pay the chairman and members of the county board of elections compensation in addition to the per meeting and expense allowance provided in this paragraph. In all counties the board of elections shall pay its clerk, assistant clerks, and other employees such compensation as it shall fix within budget appropriations. Counties which adopt full-time and permanent registration shall have authority to pay directors of elections whatever compensation they may fix within budget ap-propriations. Added by Laws 1967, c. 775, § 1. Amended by Laws 1971, c. 1166, § 1; Laws 1973, c. 793, § 8; Laws 1973, c. 1344, § 5; Laws 1977, c. 626, § 1; Laws 1991, c. 338, § 1; Laws 1993 (Reg. Sess., 1994),c. 762, § 14, eff. Jan. 1, 1995; Laws 1995, c. 243, § 1, eff. Jan. 1, 1996. Historical and Statutory Notes Laws 1993, c. 762, § 73, provides: ‘‘Sections 1 through 68 of this act become effective January 1, 1995, and apply to all primaries and elections oc-curring on or after that date. The re-mainder of this act is effective upon ratification and shall apply to all prima-ries and elections occurring on or after the date of ratification. Prosecutions for, or sentences based on, offenses oc-curring before the effective date of any section of this act are not abated or affected by this act and the statutes that would be applicable to those prosecu-tions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.’’ [Amended by Laws 1995, c. 507, § 25.10(c), eff. July 1, 1995; Laws 1995, c. 608, § 1, eff. July 1, 1996.] Laws 1995, c. 243, § 1, provides: ‘‘Wherever the term ‘supervisor’ ap-pears in the General Statutes of North Carolina or in any local act in reference to the county supervisor of elections as provided in G.S. 163–35, the term is changed to read ‘director.’ ’’ 37 ELECTION OFFICERS § 163–33 § 163–33. Powers and duties of county boards of elections The county boards of elections within their respective jurisdic-tions shall exercise all powers granted to such boards in this Chapter, and they shall perform all the duties imposed upon them by law, which shall include the following: (1) To make and issue such rules, regulations, and instruc-tions, not inconsistent with law, with directives promulgat-ed under the provisions of G.S. 163–132.4, or with the rules, orders, and directives established by the State Board of Elections, as it may deem necessary for the guidance of election officers and voters. (2) To appoint all chief judges, judges, assistants, and other officers of elections, and designate the precinct in which each shall serve; and, after notice and hearing, to remove any chief judge, judge of elections, assistant, or other officer of election appointed by it for incompetency, failure to discharge the duties of office, failure to qualify within the time prescribed by law, fraud, or for any other satisfac-tory cause. In exercising the powers and duties of this subdivision, the board may act only when a majority of its members are present at any meeting at which such powers or duties are exercised. (3) To investigate irregularities, nonperformance of duties, and violations of laws by election officers and other per-sons, and to report violations to the State Board of Elec-tions. In exercising the powers and duties of this subdivi-sion, the board may act only when a majority of its members are present at any meeting at which such powers or duties are exercised. Provided that in any hearing on an irregularity no board of elections shall consider as evidence the testimony of a voter who cast a ballot, which ballot that voter was not eligible to cast, as to how that voter voted on that ballot. (4) As provided in G.S. 163–128, to establish, define, provide, rearrange, discontinue, and combine election precincts as it may deem expedient, and to fix and provide for places of registration and for holding primaries and elections. (5) To review, examine, and certify the sufficiency and validity of petitions and nomination papers. (6) To advertise and contract for the printing of ballots and other supplies used in registration and elections; and to provide for the delivery of ballots, pollbooks, and other required papers and materials to the voting places. (7) To provide for the purchase, preservation, and mainte-nance of voting booths, ballot boxes, registration and poll- 38 § 163–33 ELECTIONS & ELECTION LAWS books, maps, flags, cards of instruction, and other forms, papers, and equipment used in registration, nominations, and elections; and to cause the voting places to be suitably provided with voting booths and other supplies required by law. (8) To provide for the issuance of all notices, advertisements, and publications concerning elections required by law. If the election is on a State bond issue, an amendment to the Constitution, or approval of an act submitted to the voters of the State, the State Board of Elections shall reimburse the county boards of elections for their reasonable addi-tional costs in placing such notices, advertisements, and publications. In addition, the county board of elections shall give notice at least 20 days prior to the date on which the registration books or records are closed that there will be a primary, general or special election, the date on which it will be held, and the hours the voting places will be open for voting in that election. The notice also shall describe the nature and type of election, and the issues, if any, to be submitted to the voters at that election. Notice shall be given by advertisement at least once weekly dur-ing the 20–day period in a newspaper having general circulation in the county and by posting a copy of the notice at the courthouse door. Notice may additionally be made on a radio or television station or both, but such notice shall be in addition to the newspaper and other required notice. This subdivision shall not apply in the case of bond elections called under the provisions of Chapter 159. (9) To receive the returns of primaries and elections, canvass the returns, make abstracts thereof, transmit such ab-stracts to the proper authorities, and to issue certificates of election to county officers and members of the General Assembly except those elected in districts composed of more than one county. (10) To appoint and remove the board’s clerk, assistant clerks, and other employees; and to appoint and remove pre-cinct transfer assistants as provided in G.S. 163–82.15(g). (11) To prepare and submit to the proper appropriating offi-cers a budget estimating the cost of elections for the ensuing fiscal year. (12) To perform such other duties as may be prescribed by this Chapter, by directives promulgated pursuant to G.S. 163–132.4, or by the rules, orders, and directives of the State Board of Elections. 39 ELECTION OFFICERS § 163–33 (13) Notwithstanding the provisions of any other section of this Chapter, to have access to any ballot boxes and their contents, any voting machines and their contents, any registration records, pollbooks, voter authorization cards or voter lists, any lists of absentee voters, any lists of presidential registrants under the Voting Rights Act of 1965 as amended, and any other voting equipment or similar records, books or lists in any precinct or munici-pality over whose elections it has jurisdiction or for whose elections it has responsibility. Added by Laws 1967, c. 775, § 1. Amended by Laws 1973, c. 793, §§ 9 to 11; Laws 1983, c. 392, § 1; Laws 1989, c. 93, § 1; Laws 1993 (Reg. Sess., 1994), c. 762, §§ 5, 15, eff. Jan. 1, 1995; Laws 1995 (Reg. Sess., 1996), c. 694, § 1, eff. June 21, 1996; S.L. 1997–510, § 1, eff. Sept. 17, 1997; S.L. 1999–424, § 7(b), eff. Aug. 5, 1999; S.L. 2009–541, § 2, eff. Aug. 28, 2009. Historical and Statutory Notes Laws 1993, c. 762, § 73, provides: ‘‘Sections 1 through 68 of this act become effective January 1, 1995, and apply to all primaries and elections oc-curring on or after that date. The re-mainder of this act is effective upon ratification and shall apply to all prima-ries and elections occurring on or after the date of ratification. Prosecutions for, or sentences based on, offenses oc-curring before the effective date of any section of this act are not abated or affected by this act and the statutes that would be applicable to those prosecu-tions or sentences but for the provisions of this act remain applicable to those prosecutions or sentences.’’ [Amended by Laws 1995, c. 507, § 25.10(c), eff. July 1, 1995; Laws 1995, c. 608, § 1, eff. July 1, 1996.] Laws 1995, c. 694, § 3, provides: ‘‘This act is effective upon ratification and applies to all votes cast on or after that date.’’ 2009 Legislation S.L. 2009–541, § 2, in subd. (1), sub-stituted ‘‘law, with directives promul-gated under the provisions of G.S. 163–132.4, or with the rules, orders, and directives’’ for ‘‘law or the rules’’; and in subd. (12), substituted ‘‘Chapter, by directives promulgated pursuant to G.S. 163–132.4, or by the rules, orders, and directives’’ for ‘‘Chapter or the rules’’. Local Modifications Town of Calabash: Laws 1989, c. 593, § 3; S.L. 1998–75, §§ 1, 5. Town of Carolina Shores: S.L. 1998–75, § 5. Town of Hazelwood: Laws 1987, c. 383, § 8. Town of Spruce Pine: S.L. 1998–152, § 2. Town of Waynesville: Laws 1987, c. 338, § 8. Alamance County Board of Elections: S.L. 1998–151, § 9.6. Anson County Board of Commission-ers: Laws 1991 (Reg. Sess., 1992), c. 781, § 8. Union County Board of Elections: S.L. 1998–151, § 9.6. Cross References Metropolitan water districts; procedure for inclusion of additional political subdivi-sion or unincorporated area; notice and hearing; elections; actions ques-tioning validity of elections, see § 162A–35. Rules governing elections, school tax supplements, see § 115C–507. 40 § 163–33 ELECTIONS & ELECTION LAWS Notes of Decisions Amendment of election returns 1 Review of Board actions 2 1. Amendment of election returns Primary election returns which were amended by county board of elections pursuant to directions of state board of elections, made in good faith, could not be declared void as a matter of law, where amended returns appeared regu-lar on their face and they were im-peached only by an affidavit of the county board chairman who participat-ed in a meeting which was duly called and held for the purpose of passing on the amended returns, and who certified to their correctness. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 Amendments to primary election re-turns pursuant to direction of state board of elections were void as a matter of law, where the returns were amend-ed by two members of the county elec-tion boards without knowledge or con-sent of third member. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 A county board of elections cannot change or amend its returns to the state board of elections without some official action on the part of the county board. Burgin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Elections O 254 2. Review of Board actions Action challenging method of electing North Carolina Superior Court judges would be dismissed as against county boards of elections; county boards had no power to independently place candi-date on ballot in election, boards could not remove candidate from election bal-lot, and boards were merely acting in ministerial capacity and could only car-ry out duties as detailed by statute and State Board of Elections. Republican Party of North Carolina v. Martin, 1988, 682 F.Supp. 834. Federal Civil Proce-dure O 1695 The unsuccessful candidate for Demo-cratic nominee for Congress was enti-tled to an order staying the state board of elections from certifying his oppo-nent as the nominee pending state board’s receipt of final returns from county boards whose original returns were void as a matter of law for having been amended by two members of county election boards without knowl-edge or consent of third member. Bur-gin v. North Carolina State Board of Elections, 1938, 198 S.E. 592, 214 N.C. 140. Injunction O 80 § 163–33.1. Power of chairman to administer oaths The chairman of the county board of elections is authorized to administer to election officials specified in Articles 4, 5, and 20 of this Chapter the required oath, and may also administer the required oath to witnesses appearing before the county board at a duly called public hearing. Added by Laws 1981, c. 154. Amended by S.L. 2007–391, § 5, eff. Aug. 19, 2007. Historical and Statutory Notes 2007 Legislation S.L. 2007–391, § 5, substituted ‘‘Arti-cles 4, 5, and 20 of this Chapter’’ for ‘‘G.S. 163–80’’. § 163–33.2. Chairman and county board to examine voting machines Prior to each primary and general election the chairman and members of the county board of elections, in counties where 41 ELECTION OFFICERS § 163–34 voting machines are used, shall test vote, in a reasonable number of combinations, no less than ten percent (10%) of all voting machines programmed for each primary or election, such ma-chines to be selected at random by the board after programming has been completed, and further, the board shall record the serial numbers of the machines test voted in the official minutes of the board. In the alternative, the board may cause the test voting required herein to be performed by persons qualified to program and test voting equipment. Added by Laws 1981, c. 303. § 163–33.3. County board of elections littering notification At the time an individual files with a county board of elections a notice of candidacy pursuant to G.S. 163–106, 163–112, 163–291, or 163–294.2, is certified to a county board of elections by a political party executive committee to fill a nomination vacancy pursuant to G.S. 163–114, qualifies with a county board of elec-tions as an unaffiliated or write-in candidate pursuant to Article 11 of this Chapter, or formally initiates with a county board of elections a candidacy pursuant to any statute or local act, the county board of elections shall notify the candidate of the provi-sions concerning campaign signs in G.S. 136–32 and G.S. 14–156 and the rules adopted by the Department of Transportation pursu-ant to G.S. 136–18. Added by S.L. 2001–512, § 8, eff. Jan. 4, 2002. § 163–34. Power of county board of elections to maintain order Each county board of elections shall possess full power to maintain order, and to enforce obedience to its lawful commands during its sessions, and shall be constituted an inferior court for that purpose. If any person shall refuse to obey the lawful commands of any county board of elections, or by disorderly conduct in its hearing or presence shall interrupt or disturb its proceedings, it may, by an order in writing, signed by its chair-man, and attested by its secretary, commit the person so offending to the common jail of the county for a period not exceeding 30 days. Such order shall be executed by any sheriff to whom the same shall be delivered, or if a sheriff shall not be present, or shall refuse to act, by any other person who shall be deputed by the county board of elections in writing, and the keeper of the jail shall receive the person so committed and safely keep him for such time as shall be mentioned in the commitment: Provided, that any person committed under the provisions of this section shall have the right to post a two hundred dollar ($200.00) bond with the 42 § 163–34 ELECTIONS & ELECTION LAWS clerk of the superior court and appeal to the superior court for a trial on the merits of his commitment. Added by Laws 1967, c. 775, § 1. Amended by S.L. 2004–203, § 57, eff. Aug. 17, 2004. § 163–35. Director of elections to county board of elections; appointment; compensation; duties; dismissal (a) In the event a vacancy occurs in the office of county director of elections in any of the county boards of elections in this State, the county board of elections shall submit the name of the person it recommends to fill the vacancy, in accordance with provisions specified in this section, to the Executive Director of the State Board of Elections who shall issue a letter of appointment. A person shall not serve as a director of elections if he: (1) Holds |
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