Election and related laws of North Carolina : chaper 163 : elections and election laws

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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 Registration of Voters [Repealed].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 Resign-to-Run [Repealed].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 General Instructions [Repealed].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 Voting Systems [Repealed].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Results in Precinct and County [Repealed].TTTTTTT 163–168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of State Abstracts [Repealed].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
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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
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§ 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
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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-
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§ 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-
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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
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§ 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.’’
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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