S.L. 1979-357

NORTH CAROLINA GENERAL ASSEMBLY

1979 SESSION

CHAPTER 357

HOUSE BILL 283

AN ACT TO REVISE THE PROCEDURES FOR HANDLING VOTER CHALLENGES.

The General Assembly of North Carolina enacts:

Section 1. G.S. 163-85 is rewritten to read as follows:

"§ 163-85. Challenge procedure other than on day of primary or election. — (a) Any registered voter of the county may challenge the right of any person to register, remain registered or vote in such county. No such challenge may be made after the close of the registration books, pursuant to G.S. 163-67, before each primary, general, or special election.

(b) Challenges shall be made to the county board of elections. Each challenge shall be made separately, in writing, under oath and on forms prescribed by the State Board of Elections, and shall specify the reasons why the challenged voter is not entitled to register, remain registered, or vote. When a challenge is made, the board of elections shall cause the word 'challenged' to be written in pencil on the registration records of the voter challenged. The challenge shall be signed by the challenger and shall set forth the challenger's address.

(1) that a person is not a resident of the State of North Carolina, or

(2) that a person is not a resident of the county in which the person is registered, or

(3) that a person is not a resident of the precinct in which the person is registered, or

(4) that a person is not 18 years of age, or if the challenge is made within 60 days before a primary, that the person will not be 18 years of age by the next general election, or

(5) that a person has been adjudged guilty of a felony and is ineligible to vote under G.S. 163-55(2), or

(6) that a person is disqualified from voting under G.S. 122-55.2(c) because such person has been adjudicated incompetent under the provisions of Chapter 35 of the General Statutes and has not been restored to legal capacity, or

(7) that a person has been disqualified from voting under G.S. 163-276 and the period of disqualification has not expired, or

(8) that a person is not a citizen of the United States, or

(9) with respect to municipal registration only, that a person is not a resident of the municipality in which the person is registered.

(d) When a challenge is made, the county board of elections shall schedule a preliminary hearing on the challenge, and shall take such testimony under oath and receive such other evidence proffered by the challenger as may be offered. The burden of proof shall be on the challenger, and if no testimony is presented, the board shall dismiss the challenge. If the challenger presents evidence and if the board finds that probable cause exists that the person challenged is not qualified to vote, then the board shall schedule a hearing on the challenge.

(e) The presentation of a letter mailed by returnable first-class mail to the voter at the address listed on the voter registration card and returned because the person does not live at the address shall constitute prima facie evidence that the person no longer resides in the precinct."

Sec. 2. G.S. 163-86 is rewritten to read as follows:

"§ 163-86. Hearing on challenge. — (a) A challenge made under G.S. 163-85 shall be heard and decided before the date of the next primary or election, except that if the board finds that because of the number of challenges, it cannot hold all hearings before the date of the election, it may order the challenges to be heard and decided at the next time the challenged person appears and seeks to vote, as if the challenge had been filed under G.S. 163-87. Unless the hearing is ordered held under G.S. 163-87, it shall be heard and decided by the board of elections.

(b) At least 10 days prior to the hearing scheduled under G.S. 163-86(c), the board of elections shall mail by first-class mail, a written notice of the challenge to the challenged voter, to the address of the voter listed in the registration records of the county. The notice shall state succinctly the grounds asserted, and shall state the time and place of the hearing. If the hearing is to be held at the polls, the notice shall state that fact and shall list the date of the next scheduled election, the location of the voter's polling place, and the time the polls will be open. A copy of the notice shall be sent to the person making the challenge and to the chairman of each political party in the county.

(c) At the time and place set for the hearing on a challenge entered prior to the date of a primary or election, the county board of elections shall explain to the challenged registrant the qualifications for registration and voting in this State. The board chairman, or in his absence the board secretary, shall then administer the following oath to the challenged registrant:

'You swear (or affirm) that the statements and information you shall give in this hearing with respect to your identity and qualifications to be registered and to vote shall be the truth, the whole truth, and nothing but the truth, so help you, God.'

After swearing the challenged registrant, the board shall examine him as to his qualifications to be registered and to vote. If the challenged registrant insists that he is qualified, the board shall tender to him the following oath or affirmation:

'You do solemnly swear (or affirm) that you are a citizen of the United States; that you are at least 18 years of age or will become 18 by the date of the next general election; that you have or will have resided in this State and in the precinct for which registered for 30 days by the date of the next general election; that you are not disqualified from voting by the Constitution or the laws of this State; that your name is _______________, and that in such name you were duly registered as a voter of _______________ precinct; and that you are the person you represent yourself to be, so help you, God.'

If the challenged registrant refuses to take the tendered oath, or submit to the board the affidavit required by subsection (d), below, the challenge shall be sustained. If the challenged registrant takes the tendered oath, the board may, nevertheless, sustain the challenge if it finds the challenged registrant is not a legal voter.

The board, in conducting hearings on challenges, shall have authority to subpoena any witnesses it may deem appropriate, and administer the necessary oaths or affirmations to all witnesses brought before it to testify to the qualifications of the persons challenged.

(d) Appearance by challenged registrant. The challenged registrant shall appear in person at the challenge hearing. If he is unable to appear in person, he may be represented by another person and must tender to the county board of elections an affidavit that he is a citizen of the United States, is at least 18 years of age or will become 18 by the date of the next general election, has or will have resided in this State and in the precinct for which registered for 30 days by the date of the next general election, is not disqualified from voting by the Constitution or laws of this State, is named _______________ and was duly registered as a voter of _______________ precinct in such name, and is the person represented to be by the affidavit."

Sec. 3. G.S. 163, Article 8, is amended by adding a new section G.S. 163-88.1 to read as follows:

"§ 163-88.1. Request for challenged ballot. — (a) If the decision of the registrar and judges pursuant to G.S. 163-88 is to sustain the challenge, the challenged voter may request a challenged ballot by submitting an application to the registrar, such application shall include as part thereof an affidavit that such person possesses all the qualifications for voting and is entitled to vote at the election. The form of such affidavit shall be prescribed by the State Board of Elections and shall be available at the polls.

(b) Any person requesting a challenged ballot shall have the letter 'C' entered at the appropriate place on the voter's permanent registration record. The voter's name shall be entered on a separate page in the pollbook entitled 'Challenged Ballot', and serially numbered. The challenged ballot shall be the same type of ballot used for absentee voters, and the registrar shall write across the top of the ballot 'Challenged Ballot #_____', and shall insert the same serial number as entered in the pollbook. The registrar shall deliver to such voter a challenged ballot together with an envelope marked 'Challenged Ballot' and serially numbered. The challenged voter shall forthwith mark the ballot in the presence of the registrar in such manner that the registrar shall not know how the ballot is marked. He shall then fold the ballot in the presence of the registrar so as to conceal the markings and deposit and seal it in the serially numbered envelope. He shall then deliver such envelope to the registrar. The registrar shall retain all such envelopes in an envelope provided by the county board of elections, which he shall seal immediately after the polls close, and deliver to the board chairman at the canvass.

(c) The chairman of the county board of elections shall preserve such ballots in the sealed envelopes for a period of six months after the election. However, in the case of a contested election, either party to such action may request the court to order that the sealed envelopes containing challenged ballots be delivered to the board of elections by the chairman. If so ordered, the board of elections shall then convene and consider each challenged ballot and rule as to which ballots shall be counted. In such consideration, the board may take such further evidence as it deems necessary, and shall have the power of subpoena. If any ballots are ordered to be counted, they shall be added to the vote totals."

Sec. 4. G.S. 163, Article 8, is amended by adding new sections G.S. 163-90.1 through G.S. 163-90.3, to read as follows:

"§ 163-90.1. Burden of proof. — (a) Challenges shall not be made indiscriminately and may only be made if the challenger knows, suspects or reasonably believes such a person not to be qualified and entitled to vote.

(b) No challenge shall be sustained unless the challenge is substantiated by affirmative proof. In the absence of such proof, the presumption shall be that the voter is properly registered or affiliated.

"§ 163-90.2. Action when challenge sustained, overruled, or dismissed. — (a) When any challenge is sustained for any cause listed under G.S. 163-85(c), the board shall cancel the voter registration of the voter and shall remove his card from the book, but shall maintain such record for at least six months and during the pendency of any appeal.

(b) When any challenge heard under G.S. 163-88 or G.S. 163-89 is sustained on the ground that the voter is not affiliated with the political party shown on his registration record, the board shall change the voter's party affiliation to 'unaffiliated'.

(c) When any challenge made under G.S. 163-85 is overruled or dismissed, the board shall erase the word 'challenged' which appears on the person's registration records.

"§ 163-90.3. Making false affidavit perjury. — Any person who shall knowingly make any false affidavit or shall knowingly swear or affirm falsely to any matter of thing required by the terms of this Article to be sworn or affirmed shall be guilty of perjury."

Sec. 5. G.S. 163-153(6) is amended by adding the following language before the period:

", and any voter of the county who has challenged a voter in that precinct if the challenge is heard at the polls under G.S. 163-87 and G.S. 163-88, while entering and explaining a challenge."

Sec. 6. In the case of any challenge pending on the date of ratification of this act, the board of elections shall notify the challenger of the pendency of the challenge. Unless the challenger resubmits the challenge under this act within 60 days of notification, the board of elections shall dismiss the challenge.

Sec. 7. This act is effective upon ratification.

In the General Assembly read three times and ratified, this the 13th day of April, 1979.