CHAPTER 02 – ELECTION PROTESTS

 

section .0100 – election protests

 

08 ncac 02 .0101             COMPLAINTS CONCERNING CONDUCT OF

ELECTIONS

08 ncac 02 .0102             PRELIMINARY CONSIDERATION OF

COMPLAINT BY COUNTY BOARD

08 ncac 02 .0103             SCHEDULING AND NOTICE OF COUNTY

BOARD HEARING

08 ncac 02 .0104             CONDUCT OF HEARING BY COUNTY BOARD

08 ncac 02 .0105             DECISION BY COUNTY BOARD

08 ncac 02 .0106             NOTICE AND PERFECTION OF APPEAL

08 ncac 02 .0107             CONSIDERATION OF APPEAL BY STATE

BOARD

08 ncac 02 .0108             STATE BOARD AUTHORITY OVER ELECTION

PROTESTS

 

History Note:        Authority G.S. 163-22; 163-22.1

Eff. March 12, 1976;

Amended Eff. November 1, 1984;

Temporary Repeal Eff. April 15, 2002;

Repealed Eff. August 1, 2004.

08 NCAC 02 .0109             NO FRIVOLOUS

PROTESTS

Neither the county board of elections nor the State Board of

Elections will investigate or conduct any hearing of charges or protests

frivolous in nature, or which in the opinion of either board have been filed

for the mere purpose of delay, or which have not been made in good faith.

When any charges are preferred either before the county

board of elections or the State Board of Elections, with respect to the canvass

or the vote in any primary or general election, pending the hearing an

examination or inspection of the ballots and other official documents of the

election officials shall be permitted under such conditions as the board may

prescribe in each particular case, great care being exercised in each instance to

preserve all ballots and official records and papers.

 

History Note:        Authority G.S. 163‑22; 163‑22.1;

Eff. March 12, 1976.

 

08 ncac 02 .0110             ACTIONS OF COUNTY BOARD AS TO

ELECTION PROTESTS

(a)  The county board shall deliver or place in the mail, a

copy of an election protest form and any attachments to it, to the State Board

of Elections within 24 hours after it is filed. Faxing the protest, with

attachments, on that same day it was filed to the State Board shall constitute

the required delivery.  Sending the protest and attachments, by e-mail, on the

same day it was filed shall also constitute the required delivery.

(b)  The county board may not consider election protests not

filed in time, but shall refer all such untimely protests, along with copies of

the protest and attachments, to the State Board of Elections office for

consideration of a possible hearing by the State Board of Elections under G.S.

163-182.12.

(c)  If after preliminary consideration of a protest, the

county board determines that a hearing should be held as authorized by G.S.

163-182.10, the board shall set the hearing no later than ten business days

from the date of the preliminary consideration, and shall start no earlier than

8:00 a.m. and no later than 8:00 p.m. at any location set by the county board

of elections. The county board may continue hearings for good cause. Only for

good cause and upon informing the State Board of Elections office, may a

hearing be set on or continued to a weekend day or holiday. 

(d)  Notice of hearing as required by G.S. 163-182.10 (b)(2)

shall be given at least three business prior to the day of the hearing, and the

notice required shall be actual notice by any means chosen by the county board.

Any oral notice of the hearing shall be followed as soon as possible with a

written notice. The oral notice shall constitute valid notice meeting the

three-day notice requirement.

(1)           Upon a reasonable and relevant request by a

protester or interested person, the chair or any two members of the county

board may issue subpoenas for persons or documents. Such subpoenas shall be

served in the same matter as allowed in the North Carolina Rules of Civil

Procedure.

(2)           The county board shall notify the person

protesting, any affected candidate, and any affected officeholder of its

decision in a protest hearing no later than 5:00 p.m. the next day after the

conclusion of the hearing itself. The board shall file at the board office a

written decision within the mandates of G.S. 163-182.10 (d) by 5:00 p.m. five

business days after the oral decision is given to the person filing the

protest. Such written decision shall be served by any means of actual delivery

upon the protestor and any affected candidate or officeholder within 24 hours

after being filed at the board office. Nothing herein shall discourage more

prompt decisions and written orders.  

(3)           All election protest hearings before county

boards shall be recorded by a court reporter. The hearing need not be

transcribed unless the board's decision is appealed. Upon notice of appeal to

the State Board of an election protest, the county board shall cause the record

of the hearing to be transcribed and delivered to the State Board, at the

county board's expense, within seven business days of the notice of appeal. A

county board may cause hearings, that on their face do not present merit to be

recorded by mechanical means and not by court reporter only with prior

permission of the Executive Director of the State Board of Elections. Any

non-transcripted record of the county hearings may be destroyed 60 days after

the date of hearing if not appealed, or 60 days after the entry of any final

order or decision in an appealed hearing. Transcripts of hearings shall be kept

for two years after their creation.

(4)           If the State Board sets an appeal for

hearing, it shall designate who shall appear on behalf of the county board.

 

History Note:        Authority G.S. 163-22; 163-182-10;

Temporary Adoption Eff. April 15, 2002;

Eff. August 1, 2004.

 

08 ncac 02 .0111             ELECTION PROTEST FORM

All persons filing election protests with a county board of

election shall use the following form:

 

ELECTION PROTEST

(Use of this form is

required by G.S. 163-182.9(c))

 

This form must be filed with the county board of elections

within the timeframes set out in G.S. 163-182.9 (b)(4).  Please print or type

your answers.  Feel free to use and attach additional sheets if needed to fully

answer the questions below.  You may also attach relevant exhibits and

documents.  Please number the pages of such additional sheets and attachments. 



 

1.  Full name and mailing address of person filing the

protest.

________________________________________________________________________________________________

2.  Home and business phone number, fax number, and e-mail

address.

________________________________________________________________________________________________

3.  Are you either a candidate or registered voter eligible

to vote in the protested election.  If a candidate, for what office?

________________________________________________________________________________________________

4.  List the date, location, and exact nature of the

election protested.  Name all candidates in the election and the number of

votes each received.  Note the winning candidate(s) elected or nominated.

________________________________________________________________________________________________

5.  Does this protest involve an alleged error in vote count

or tabulation?  If so, please explain in detail.

________________________________________________________________________________________________

6.  Does this protest involve an irregularity or misconduct

not described in number 5 above?  If so, please give a detailed description of

such misconduct or irregularity and name those who committed such action.

________________________________________________________________________________________________

7.  Please set out all election laws or regulations that you

allege were violated in your responses to 5 or 6 above.  State how each

violation occurred. Please provide the names, addresses, and phone numbers of

those who you allege committed such violations.

________________________________________________________________________________________________

8.  Please provide the names, addresses, and phone numbers

of any witnesses to any misconduct alleged by you in this protest, and specify

what each witness listed saw or knows.

________________________________________________________________________________________________

9.  What action do you desire the county board of elections

to take in this matter?

________________________________________________________________________________________________

10.  Do you contend the allegations set out by you are

sufficient to have affected or cast doubt upon the results of the protested

election?  If your answer is yes, please state the factual basis for your

opinion.

________________________________________________________________________________________________

11.  Have you read and reviewed the North Carolina law

pertaining to election protests as set out in G.S. 163-182.9 through G.S.

163-182.14 and current North Carolina State Board of Elections regulations

pertaining to election protests?

________________________________________________________________________________________________

12.  How many pages of additional answer are attached to

this protest?___How many pages of attachments are attached?____

 

_________________________________

Signature of Protestor

 

Date/Time Filed with County Board

______________________________________

(to be filled out by the county board)

 

NOTE: The county board must provide the State Board

with a complete copy of a filed protest within one business day after it is

filed. In addition, the county board shall provide a copy of the election audit

with this copy of the protest.

 

Please direct any questions to your county board of elections

or the North Carolina State Board of Elections, PO Box 27255, Raleigh, NC

27611-7255, (919) 733-7173.

 

History Note:        Authority G.S. 163-22; 163-182.9;

Temporary Adoption Eff. April 15, 2002;

Eff. August 1, 2004.

 

08 ncac 02 .0112             APPEAL TO THE STATE BOARD OF

ELECTIONS

All appeals of a county board of election protest decision

must use the following form:

 

APPEAL OF ELECTION

PROTEST TO STATE BOARD OF ELECTIONS

(Use of this form is

required by G. S. 163-182.11 (a))

 

A copy of this appeal must be given to the county board of

elections within 24 hours (weekends and holidays excluded) after the county

board files its written decision at its office. This same appeal must be filed

with or mailed to the State Board of Elections by the end of the second day

following the county board decision if the protest involves a first primary. 

As to a protest of any other election, this appeal must be filed or deposited

in the mail by the end of the fifth day following the county board decision. 

See G.S. 163-182.11 (a).  A copy of the original election protest form with

attachments must be filed with this appeal.  A copy of the county board

decision must be filed with this appeal.  The county board will provide the

record on appeal.  As many additional sheets as are necessary to answer the

questions below may be attached, but they must be numbered.  Please print or

type your answers. 

 

1.  Full name, mailing address, home and business phone, fax

number, and e-mail address of undersigned.

________________________________________________________________________________________________

2.  Are you the person who filed the original protest, a

candidate or office holder adversely affected by the county decision, or

someone else whose interest has been adversely affected by the county decision?

________________________________________________________________________________________________

3.  State the date, place, kind of election, and results of

the election protested (if different from the information on the election and

its results as set out in the attached original protest form).

________________________________________________________________________________________________

4.  State the name, mailing address, home phone, and

business phone of all candidates involved in the protested election.

________________________________________________________________________________________________

5.  State the date of the county board

hearing_______________________________________________

6.  State the legal and factual basis for your appeal.

________________________________________________________________________________________________

7.  Is there any material submitted with this appeal that

was not presented to and considered by the county board?  Is so, please

identify and state why it was not presented to the county board.  Why do you

think the State Board of Elections should consider it?

________________________________________________________________________________________________

8.  Normally the State Board will make its decision in an

appeal based upon the record from the county board.  If you desire the record

in this matter to be supplemented, additional evidence to be considered, or a

completely new hearing, please state such desire and why it should be allowed

in this appeal.  See G.S. 163-182.11 (b).

________________________________________________________________________________________________

9.  What relief do you seek?  Why?

________________________________________________________________________________________________

10.  Have you read and reviewed G.S. 163-182.11 through G.S.

163-182.14 and the current North Carolina State Board of Elections regulations

on appeals of election protests?

11.  Besides a copy of the original protest and the county

board decisions, this appeal includes___ pages of additional answers and__

pages of exhibits and documents not included in the original protest and

decision. 

 

 

_______________________________                        ________________

Signature of Person Appealing                                          Date

Appeal Signed

 

 

Date appeal received by State

Board of Elections

_________________________________________

(To be entered by the State Board

of Elections staff)

 

Send your appeal to, or it you have questions contact: North

Carolina State Board of Elections, P.O. Box 27255, Raleigh, NC 27611-7255,

(919) 733-7173.

 

History Note:        Authority G.S.163-22; 163-182.11;

Temporary Adoption Eff. April 15, 2002;

Eff. August 1, 2004.

 

08 ncac 02 .0113             NEW ELECTIONS ORDERED BY STATE BOARD

OF ELECTIONS

(a)  Eligibility to vote in a new election shall be

determined by the voter's eligibility and circumstances at the time of the new

election.

(b)  Eligibility to register to vote and to vote in a new

election shall be governed by G.S. 163-82.6.

(c)  The date of any new non-municipal election, in which

absentee ballots are to be required or allowed, shall be set by the State Board

no earlier than 75 days after the date of the order for a new election. In the

case of a municipal election where absentee ballots are allowed, a new election

shall not be set earlier than 55 days after the date of the order for a new

election. This is required in order to provide sufficient time for absentee

ballots to be prepared, printed and made available and for "one-stop"

voting to be provided within the mandates set out in G.S. 163, Article 20.

(d)  The date of any new election ordered in a county

covered by the preclearance requirements of Section 5 of the Voting Rights Act

of 1965 shall be set no earlier than 75 days from the date of the new election

order in order to prepare, submit, and obtain preclearance approval.

(e)  If a new primary is ordered by the State Board, no

person who voted in the initial primary of one party shall be allowed to vote

in the new primary of another party. County board documentation of the voter's

participation in the initial primary shall be prima facie evidence sufficient

to disallow the voter from participating in the primary of another party in the

new election.

 

History Note:        Authority G.S. 163-22; 163- 182.13(c);

Temporary Adoption Eff. April 15, 2002;

Eff. August 1, 2004.