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Board Meeting Agenda Packet 06-30-2022MEETING AGENDA Date: June 30, 2022 Time: 1:00 PM Location: Longleaf Room Type: Special Scheduled Attendees: Oliver Carter III, Chair Rae Hunter-Havens, Elections Director Derrick R. Miller, Secretary Caroline Dawkins, Elections Deputy Director Lyana G. Hunter, Member Joan Geiszler-Ludlum, Administrative Elections Bruce Kemp, Member Technician Russ C. Bryan, Member Visitor(s): Lisa Wurtzbacher, Assistant County Manager; Kemp Burpeau, Deputy County Attorney AGENDA ITEMS 1.Meeting Opening a.Call to Order b.Preliminary Announcement i.Silence Phones ii.Recording & Streaming iii.Other c.Pledge of Allegiance d.Approval of Agenda 2.New Business •Preliminary Consideration of Elections Protest 3.Adjournment *Agenda packets are sent via email in advance of meetings. Special Meeting New Hanover County Board of Elections June 30, 2022 Subject: Approval of Agenda Summary: N/A Board Action Required: Staff recommends approval Item # 1d Special Meeting New Hanover County Board of Elections June 30, 2022 Subject: Preliminary Consideration of Elections Protest Applicable Statutes and/or Rules: N.C. Gen. Stats §§ 163-182.9, 163-182.10, 163-182.7, 163-182.7A, 163-182.13; 08 NCAC 02 .0110; 08 NCAC 02 .0114(a); 08 NCAC 09.0106(h), NCSBOE Elections Protest Procedure Guide Summary: The purpose of this meeting is the preliminary consideration of an elections protest. If the personal or business interests of a board member may conflict with their official duty to consider this matter, then that board member must recuse himself or herself from all discussion and decision making regarding the elections protest. At the very least, the board member must step down from the dais. In addition, nonverbal communication can be powerful so it may be appropriate for the recused board member to leave the room entirely during the preliminary consideration stage of this process. Elections protests are formal complaints that call into question the apparent results of an election or contest based on irregularities or misconduct that affected the outcome of the election. On June 17, 2022 at 2:40 pm, the New Hanover County Board of Elections received an election protest from Jennifer Ingulli regarding the recount(s) of the NHC Board of Education (DEM) contest for Nelson Beaulieu and Jenna Bosch. This protest alleges there was a defect in the way in which votes were counted or results tabulated sufficient to cast doubt on the election result, and/or a violation of election law, irregularity, or misconduct sufficient to cast doubt on the apparent results of the election. County elections directors may recommend administrative dismissal of a protest if it meets certain criteria, such as being improperly filed. In accordance with 08 NCAC 02 .0114, Director Hunter-Havens submitted in writing to county board members and the executive director of the NC State Board of Elections a recommendation for administrative dismissal of the election protest. The recommendation must state applicable defects associated with the elections protest and be issued no later than two business days after the matter was filed. In this case, the recommendation noted that the person submitting the election protest is not a candidate and is not entitled to submit an election protest regarding a recount (08 NCAC 09.0106(h)). In addition, the recommendation stated that the elections protest was not submitted timely since it was received by our office after the deadline for submission of timely protest, which would have been within 24 hours after a recount was concluded or by noon of the next business day, whichever is later. The recount concluded at 1:16 pm on Thursday, June 16, 2022. The election protest was submitted to our office at 2:40 pm on Friday, June 17, 2022. Item # 3a Item # 2 If either a county board member or executive director of the State Board raises an objection within two calendar days of issuance of administrative recommendation for dismissal, the county board is required to proceed to the preliminary consideration stage of the elections protest process. Member Bruce Kemp objected to the administrative dismissal of the elections protest. The preliminary consideration phase is limited to whether the protest itself, as filed, meets the procedural requirements, and contains probable cause of the occurrence of an election law violation, irregularity, or misconduct. During this meeting, the county board will determine whether the protestor has standing to file an elections protest in this recount and whether it was timely filed. If the county board determines that the protest does not meet either or both procedural requirements, the board must dismiss the protest. The substantive analysis of the protest, if conducted, requires the county board to review the following: 1. Does the protest establish probable cause that a violation of election law occurred? 2. Does the protest establish probable cause that an irregularity occurred? 3. Does the protest establish probable cause that misconduct occurred? If the board answers “yes” to any of the questions above, the board must determine whether the protest establishes probable cause that the improper act changed the outcome of the election. If the county board establishes probable cause of an outcome-determinative irregularity, violation of law, or misconduct, and that the procedural requirements were met, the protest advances to the protest hearing phase of the process. If the county board dismisses the protest at this stage, the board must prepare a written order to memorialize its decision. The written order must be sent to the protestor and the State Board. The decision of a county board to dismiss a protest may be appealed to the NC State Board of Elections. Document/s Included: Jennifer Ingulli Protest Form, Administrative Dismissal Recommendation, NCSBOE Elections Protest Procedure Guide, N.C. Gen. Stats §§ 163-182.9, 163-182.10, 163-182.7, 163-182.7A, 163-182.13; 08 NCAC 02 .0110; 08 NCAC 02 .0114(a); 08 NCAC 09.0106(h) Board Action Required: Discuss as necessary and action required DISCLAIMER: This guide was prepared by State Board of Elections legal staff for general in- formational purposes and does not constitute legal advice. The agency does not warrant that content is comprehensive or current. Always consult applicable laws and rules. Mailing Address: P.O. Box 27255 Raleigh, NC 27611 (919) 814-0700 or (866) 522-4723 Fax: (919) 715-0135 Election Protest Procedures Guide 1. OVERVIEW The apparent results of an election may be called into question through a formal complaint called an “election protest” based on irregularities or misconduct that affected the outcome of the election. State law allows voters or candidates to bring an election protest alleging a defect in the way votes were counted or alleging some of other violation of election law, irregularity, or misconduct. An election protest proved by substantial evidence can correct results, cause a recount, or can even result a new election, among other things.1 An election protest is initiated when a candidate or registered voter eligible to participate in the protested contest files a protest with the county board of elections where the alleged problem occurred. The county board first engages in a preliminary consideration and decides whether the protest demonstrates probable cause and whether it substantially complies with the filing requirements. If it does, the protest advances to a protest hearing where the board will assess evidence in the form of witness testimony, affidavits, documents, and any other evidence presented. The county board will determine whether there is substantial evidence that voting irregularities occurred and whether the irregularities were outcome-determinative. An interested party may appeal the county board’s determination to the State Board. A final State Board decision may be appealed to the Superior Court in Wake County. Unless otherwise indicated, applicable statutes and rules are available at Article 15A of Chapter 163 of the North Carolina General Statutes and Chapter 02 of Title 08 of the North Carolina Administrative Code. 2. FILING A PROTEST Who may file an election protest A registered voter who was eligible to vote in the protested election contest or who was a candidate in that election may file an election protest.2 1 G.S. § 163-182.10(d)(2)(c); § 163-182.13. 2 G.S. § 163-182.9(a). 2 (Last updated: June 27, 2022) Where and what to file in an election protest A protest must be filed in writing on the Election Protest Form, available on the State Board’s website, and must be signed and sworn by the protester.3 The protest form is designed to be filed by one individual. The State Board or county board reserves the right to combine multiple similar protests. The protest must be filed with the county board of elections in which the alleged issue occurred. The county board should date stamp the protest when it is received. When to file an election protest Election protests must be filed within the following time frames4: Protest Issue Deadline Manner in which votes were counted or results were tabulated Before the county canvass meeting Manner in which votes were counted or tabulated and protest states good cause for delay in filing By 5 p.m. on 2nd business day after the county canvass meeting Irregularity other than counting of votes or tabulation of results (protest filed on or after Election Day) By 5 p.m. on 2nd business day after county canvass Irregularity other than vote counting or tabulation, and protest filed before Election Day Example: Candidate Challenge filed after deadline under G.S. § 163-127.2 Stay (delay proceedings) until after Election Day if: • Ballots have already been printed; • Voter registration deadline has already passed; or • Any of the protest proceedings will occur within 30 days of election. *NOTE: The protest should not be stayed if the defending party consents to proceed 3 G.S. § 163-182.9(b) and (c); 8 NCAC 02. 0111. 4 G.S. § 163-182.9(b)(4). 3 (Last updated: June 27, 2022) A county board of elections shall not delay canvass in order to hear the protest if the protest: • Does not concern the manner in which votes were counted or results tabulated; or • Alleges the occurrence of an election law violation regarding an insufficient number of votes to change the outcome of a contest.5 Untimely Protest A county board may not hear an untimely protest. Untimely protests shall be forwarded to the State Board of Elections.6 The State Board has broad authority to consider election protests on its own, including those that were not filed on time.7 However, it is not required to consider untimely or improperly filed protests. Challenge to a Candidate’s Eligibility A challenge to a candidate’s eligibility is as a candidate challenge filed under Article 11B of Chapter 163. If a challenger discovers one or more grounds for challenging a candidate after the deadline in G.S. § 163-127.2(a), the grounds may be the basis for an election protest. If an election protest is filed on the basis of a candidate’s eligibility, the burden of proof is on the protester, not the candidate.8 5 08 NCAC 02. 0110(f). 6 08 NCAC 02. 0110(b). 7 G.S. § 163-182.12. 8 G.S. § 163-182.10(d)(2). See Appeal of Ramseur, 120 N.C. App. 521 (1995) and In re Protest of Lilly, Order, State Board of Elections (Aug. 3, 2020). 4 (Last updated: June 27, 2022) Notice to the State Board & the County Attorney A county board must provide to the State Board a copy of any filed election protest and attachments within 24 hours after it is filed. Protests should be emailed to legal@ncsbe.gov. It is best practice to notify your county attorney immediately when a protest is filed. Historically, county attorneys have offered guidance and assistance in the proceeding and in drafting orders. The county attorney may also be able to help secure a court reporter for the proceedings. Protests of Recounts Any candidate shall have the right to file an election protest within 24 hours after a recount is completed or by noon of the next business day of the county board office, whichever is later, if the protest relates to the conduct of the recount. Allegations unrelated to the recount may not be included in the protest.9 A voter who was not a candidate in the contest subject to the recount is not eligible to file a protest of the recount unless the protest is filed within the time specified by G.S. § 163-182.9. 3. ADMINISTRATIVE DISMISSAL When an election protest is filed with the county board, the director shall review the allegations and evidence. By rule, a county elections director may recommend administrative dismissal of a protest if it meets certain criteria. If the director finds that the filing must be dismissed because it was improperly filed, the director shall transmit their recommendation in writing to the county board members and executive director of the State Board no later than two business days after the matter is filed. The recommendation shall cite the applicable defects listed in the administrative rule and below. If, after two calendar days, neither a county board member nor the executive director of the State Board has raised any oral or written objection to the county director’s recommendation for administrative dismissal, written notice of the administrative dismissal shall be sent to the protester (see Notice of Administrative Dismissal, below).10 The county director shall confirm that the county board members have received the filings and the director’s administrative recommendation before proceeding to issue a notice of dismissal. The county board of elections director shall administratively dismiss an election protest if:11 9 08 NCAC 09 .0106(g). 10 08 NCAC 02 .0114(b). 11 08 NCAC 02 .0114(a). 5 (Last updated: June 27, 2022) • The election protest fails to contest the manner in which the votes were counted or the results tabulated, or if it fails to allege a violation of election law or irregularity or misconduct sufficient to cast doubt on the results of the election. • The individual making the election protest was neither a registered voter eligible to participate in the protested contest nor a candidate for nomination or election in the protested contest. • The election protest was not filed in accordance with G.S. § 163-182.9 or was not filed on the form proscribed in 08 NCAC 02 .0111. • The election protest is duplicative or was made for the purpose of delay. • The election protest fails to include evidence which, if true, would substantiate the probable occurrence of an outcome-determinative defect in the manner in which voters were counted or results tabulated, or the probable occurrence of an outcome- determinative violation of election law, irregularity, or misconduct. • The election protest, including all subsequent submissions, fails to allege facts sufficient to constitute substantial evidence of the occurrence of an outcome-determinative violation of election law, irregularity, or misconduct. The written notice of administrative dismissal shall: • Be sent by certified mail or commercial carrier such that the date of delivery may be verified, unless the recipient has agreed in writing to receive notice by electronic means; • State that the matter was provided to the county board of elections members, but will not be heard by the county board; and • State that the matter has been dismissed administratively, citing this rule and all applicable bases for dismissal in 08 NCAC 02 .0114(a). The protester may appeal the county director’s administrative dismissal to the Executive Director of the State Board using the form listed in 08 NCAC 02 .0114(d). The appeal must be received by the State Board office by US mail, courier service, or hand delivery no later than five business days after the protester received written notice of the county director’s administrative dismissal. If an election protest is not administratively dismissed by the county director, the protest will proceed to the preliminary consideration stage. 4. CONSIDERATION BY THE COUNTY BOARD OF ELECTIONS An election protest advances in two stages. Each stage has a different evidentiary standard. a. PRELIMINARY CONSIDERATION The county board must notice a meeting and convene as quickly as possible to determine (1) whether the protest has substantially complied with the form requirement, and (2) whether the protest establishes probable cause. 6 (Last updated: June 27, 2022) The county board should provide individualized notice to the protester and affected candidates regarding the preliminary consideration meeting. However, because the county board is considering whether the complaint on its face establishes probable cause, it is not required that these individuals be allowed to speak at the preliminary consideration stage. The county board will review the filed protest to consider whether it establishes probable cause of an outcome-determinative irregularity, violation of law, or misconduct.12 Probable cause is a commonsense, practical standard: Is the material submitted by the protester sufficient for a reasonable and prudent person to believe that the apparent result of the election was swayed by election law violations, irregularity, or misconduct. It does not mean that such a belief is necessarily correct or more likely true than false. A probability of an outcome-determinative irregularity is sufficient.13 The county board should analyze all the facts alleged (called reviewing “the totality of the circumstances”). The county board should consider only allegations presented on the protest form and any attachments. The preliminary consideration is not an opportunity to present new evidence. If the county board determines that the protest does not meet this standard, it should dismiss the protest. During its preliminary consideration, the county board will also determine whether the protester substantially complied with the requirements of G.S. § 163-182.9. These requirements include that the protester is eligible to file a protest, that the protester filed the protest in writing and included required information on the form, and that the protest was timely filed.14 If the county board determines that the protest does not meet these procedural requirements, it must dismiss the protest. If it dismisses the protest, the county board must memorialize its decision in the form of a written order and provide the decision to the protester and the State Board. The order must be filed in the county board office within 5 business days of the decision at the meeting, and the order should be served on the protester and any affected candidate or officeholder within 24 hours after being filed at the board office (and preferably served immediately via email).15 The county attorney should assist with drafting an order and should attend the meeting if possible. A party may amend the protest, if the deadline to file a protest has not passed, or appeal a county board’s dismissal to the State Board.16 12 G.S. § 163-182.10(a)(1). The State Board clarified in a 2016 order, and in 2018 by rule, that a protest will be dis- missed if it merely disputes the eligibility of a voter without alleging an outcome‐determinative violation of election law, irregularity, or misconduct. 13 Adams v. City of Raleigh, 782 S.E.2d 108, 113–14 (N.C. Ct. App. 2016). 14 G.S. § 163-182.9. 15 08 NCAC 02 .0110(e)(2). 16 G.S. §§ 163-182.12 to 182.13; see also 8 NCAC 2.0112. 7 (Last updated: June 27, 2022) If the county board finds probable cause, and that the procedural requirements are met, the protest advances to a protest hearing. b. PROTEST HEARING A protest hearing must be noticed at least three business days prior to the hearing.17 The notice must be actual notice (meaning notice is actually received) in a manner up to the county board, but it must quickly follow any oral notices with a written notice. Notice must be provided to the following parties: the protester, any candidate likely to be affected, elections officials alleged to have acted improperly, and those persons likely to have a significant interest in the resolution of the protest.18 Notice must also be provided to the political parties. When the protest hearing is held depends on the substance of the election protest, but the hearing may be held no later than 10 business days after the preliminary consideration hearing. If the protest relates to vote tabulation or vote counting, and the alleged number of votes affected could affect the outcome of the election, the protest hearing shall be held at the county canvass.19 If the delay of the canvass is required to resolve a protest, canvass on only affected ballot items may be delayed for no more than three days, unless a longer delay is approved by the State Board. If the protest relates to an election-related irregularity other than results tabulation or vote counting, the protest is not required to be resolved by canvass, and the county board shall set a hearing date within 10 days of the preliminary consideration hearing.20 The protest hearing shall be recorded by a court reporter or by audio/video recording. G.S. § 163-182.10(c)(3). If an audio/video recording is made, the county board must ensure it is high quality and can be readily transcribed. If the protest is appealed to the State Board, the county board will be required to obtain a transcript of the hearing. The county board shall order a transcription of the recording and have it delivered to the State Board, at the county board’s expense, within seven business days of the notice of appeal. 21 The burden of proof is on the protester.22 To sustain an election protest, the county board must find substantial evidence of an irregularity or misconduct that impacted the election results. 17 G.S. § 163-182.10(b). 18 08 NCAC 02. 0110(d). 19 Order, Authentication of the 2016 Gen. Election, N.C. Bd. of Elections (Nov. 28, 2016). 20 08 NCAC 02. 0110. 21 08 NCAC 02. 0110(d)(3). 22 Appeal of Ramseur, 120 N.C. App. 521 (1995); Appeal of Harper, 118 N.C.App. 698 (1995) (“When an unsuc-cessful candidate seeks to invalidate an election, the burden of proof is on him to show that he would have been suc-cessful had the irregularities not occurred.”). 8 (Last updated: June 27, 2022) Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support the conclusion that certain irregularities occurred and that they swayed the results of the election. Substantial evidence is “more than a scintilla or a permissible inference.” Rather, the evidence must be strong enough to establish to a reasonable person that the claimed irregularities occurred and that those irregularities swayed the election.23 At the protest hearing, the county board may receive evidence from any person with information concerning the subject of the protest. Evidence may be in the form of affidavits, witness testimony, or other evidence. Each witness shall be placed under oath before testifying.24 The protester shall submit his or her allegations and introduce the evidence. Any other person to whom notice was given may, if present, present evidence. Individuals with relevant information who did not receive notice of the hearing but have “significant interest” in the protest’s resolutions may also submit evidence if that interest is not adequately represented by other participants.25 The board’s chair or any two members may subpoena witnesses or any documents.26 The county board has the power to subpoena appropriate witnesses within its “respective jurisdiction[].”27 Although the North Carolina Rules of Evidence (Chapter 8C) and Rules of Civil Procedure (Chapter 1A) do not apply to protest proceedings, county boards are well advised to use these rules to guide the conduct of their quasi-judicial protest hearings, where practical. In making decisions on how the parties may present their cases at the hearing, the county board must ensure the elements of a fair trail are met. This includes the opportunity offer evidence in support of one’s position and against the other, to cross-examine adverse witnesses, and to inspect any documentary evidence presented.28 Many county boards find it expedient for the board chair, as the presiding officer of the hearing, to make basic evidentiary and procedural rulings to ensure the fair and efficient presentation of each side’s case. Some boards also find it useful to issue prehearing orders to the parties from the chair or board that set some of the ground rules, parameters, and sequencing of the hearing. The county board shall dismiss the protest if it fails to show “substantial evidence of any violation, irregularity, or misconduct sufficient to cast doubt on the results of the election.”29 Again, the protest’s success depends on whether the affected ballots or irregularities could have 23 Lackey v. N.C. Dep't of Hum. Res., 306 N.C. 231, 238, 293 S.E.2d 171, 176 (1982); Humble Oil & Ref. Co. v. Bd. of Aldermen, 284 N.C. 458, 470–71 (1974). 24 The following oath as outlined in G.S. § 11-11 may be used: “Do you swear (or affirm) that the testimony you shall give to the board shall be the truth, the whole truth, and nothing but the truth; so help you, God?” 25 G.S. § 163-182.10(c)(2). 26 G.S. § 163-182.10(c)(1). A blank subpoena form may generally be obtained from the local clerk of court. 27 G.S. § 163-33. 28 Coastal Ready–Mix Concrete Co. v. Board of Comm'rs of Nags Head, 299 N.C. 620, 626, 265 S.E.2d 379, 383 (1980); Cook v. Union Cnty. Zoning Bd. of Adjustment, 185 N.C. App. 582, 594, 649 S.E.2d 458, 468 (2007). 29 G.S. § 163-182.10(d)(2)(c). 9 (Last updated: June 27, 2022) changed the election’s outcome. Allegations of unqualified voters participating may not be brought as election protests; these must be brought as voter qualification challenges filed within the time period required by law. In an election protest, evidence of unqualified individuals voting may only be used as evidence if those individuals’ votes could have impacted the election’s outcome.30 If the county board determines there is substantial evidence that a violation did occur and it was “sufficiently serious to cast doubt on the apparent results of the election,” it may declare new results, order a recount, send the protest and conclusion to the State Board, or any other action within its authority.31 Alternately, if the county board finds there is substantial evidence to believe there was a violation occurred but it cannot conclude the violations were outcome-determinative for multi-county or statewide contests, the county board shall send its decision to the State Board.32 The State Board will then determine whether the improper ballots were sufficient to change the election’s result. The county board shall orally or in writing notify the person protested and any affected candidate of its decision on the protest no later than 5:00 p.m. the calendar day after hearing. The board shall file a written decision with the board office no later than 5:00 p.m. five business days after the oral decision is given to the protester. The written decision shall be served by any means of actual delivery upon the protester and any affected candidate within 24 hours after it is filed at the board office (immediate notification via email is preferred).33 The written decision shall include findings of fact and conclusions of law as specified in G.S. § 163-182.10(d). 5. APPEAL The decision by the county board of elections on the election protest may be appealed to the State Board. Who may appeal a county board decision The individual who filed the election protest, the candidate or elected official adversely affected by the decision, or any other person with a significant interest adversely affected and who participated in the hearing may file an appeal. Appeal is to the State Board.34 How and when to file in an appeal The appeal contains two parts. First, an appealing party must notify the county board in writing of the party’s intent to appeal within 24 hours of the board’s written decision. The notice of appeal is not required to include a copy of the appeal form itself. Second, the 30 Order, In re Authentication of the 2016 Gen. Election, N.C. Bd. of Elections (Nov. 28, 2016) (link). 31 G.S. § 163-182.10(d)(2)(e). 32 G.S. § 163-182.10(d)(2)(d). 33 08 NCAC 02. 0110(d)(2). 34 G.S. § 163-182.11(a). 10 (Last updated: June 27, 2022) appealing party must timely file an appeal to the State Board. The appeal must be in writing and on the Election Protest Appeal Form.35 The appeal form is available here on the Office of Administrative Hearing’s website. The appeal must be delivered to the State Board in person or by mail. A person seeking to appeal the protest should also email a copy of the appeal to legal@ncsbe.gov as soon as it is put in the mail or delivered. If the protest decision concerns a first primary, the appeal must be delivered or deposited in the mail by the end of the second calendar day after the day the county board issued its written decision. If the protest decision concerns any other election, the appeal must be delivered or deposited in the mail by the fifth calendar day after the county board issued its written decision.36 The State Board has broad discretion in its appellate role. It may decide the appeal on the existing record or it may require the county board or an interested party to supplement or add to the evidence.37 Alternatively, the State Board may conduct its own protest hearing and decide the protest based on that proceeding.38 Finally, it may remand back to the county board with an order.39 Unsubstantiated or improperly filed election protests may be administratively denied by the executive director pursuant to 08 NCAC 02 .0114(e). If, after three calendar days of the executive director’s administrative denial recommendation, no State Board member interposes an objection, the protest appeal will be denied. Most protest decisions of the State Board may be appealed to the Superior Court of Wake County within 10 days of the date of service of the decision. Contested elections for Council of State or General Assembly are appealable to the General Assembly rather than superior court.40 35 G.S. § 163-182.11(a). 36 G.S. § 163-182.11(a). 37 G.S. § 163-182.11(b)(1)-(3). 38 G.S. § 163-182.11(b)(4). 39 G.S. § 163-182.11(b)(5). 40 G.S. § 163-182.14. G.S. 163-182.9 Page 1 § 163-182.9. Filing an election protest. (a) Who May File a Protest With County Board. – A protest concerning the conduct of an election may be filed with the county board of elections by any registered voter who was eligible to vote in the election or by any person who was a candidate for nomination or election in the election. (b) How Protest May Be Filed. – The following principles shall apply to the filing of election protests with the county board of elections: (1) The protest shall be in writing and shall be signed by the protester. It shall include the protester's name, address, and telephone number and a statement that the person is a registered voter in the jurisdiction or a candidate. (2) The protest shall state whether the protest concerns the manner in which votes were counted and results tabulated or concerns some other irregularity. (3) The protest shall state what remedy the protester is seeking. (4) The timing for filing a protest shall be as follows: a. If the protest concerns the manner in which votes were counted or results tabulated, the protest shall be filed before the beginning of the county board of election's canvass meeting. b. If the protest concerns the manner in which votes were counted or results tabulated and the protest states good cause for delay in filing, the protest may be filed until 5:00 P.M. on the second business day after the county board of elections has completed its canvass and declared the results. c. If the protest concerns an irregularity other than vote counting or result tabulation, the protest shall be filed no later than 5:00 P.M. on the second business day after the county board has completed its canvass and declared the results. d. If the protest concerns an irregularity on a matter other than vote counting or result tabulation and the protest is filed before election day, the protest proceedings shall be stayed, unless a party defending against the protest moves otherwise, until after election day if any one of the following conditions exists: 1. The ballot has been printed. 2. The voter registration deadline for that election has passed. 3. Any of the proceedings will occur within 30 days before election day. (c) State Board to Prescribe Forms. – The State Board of Elections shall prescribe forms for filing protests. (2001-398, s. 3; 2005-428, s. 4; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).) G.S. 163-182.10 Page 1 § 163-182.10. Consideration of protest by county board of elections. (a) Preliminary Consideration. – The following principles shall apply to the initial consideration of election protests by the county board of elections: (1) The county board shall, as soon as possible after the protest is filed, meet to determine whether the protest substantially complies with G.S. 163-182.9 and whether it establishes probable cause to believe that a violation of election law or irregularity or misconduct has occurred. If the board determines that one or both requirements are not met, the board shall dismiss the protest. The board shall notify both the protester and the State Board of Elections. The protester may file an amended protest or may appeal to the State Board. If the board determines that both requirements are met, it shall schedule a hearing. (2) If a protest was filed before the canvass and concerns the counting and tabulating of votes, the county board shall resolve the protest before the canvass is completed. If necessary to provide time to resolve the protest, the county board may recess the canvass meeting, but shall not delay the completion of the canvass for more than three days unless approved by the State Board of Elections. Resolution of the protest shall not delay the canvass of ballot items unaffected by the protest. The appeal of a dismissal shall not delay the canvass. (3) If a protest concerns an irregularity other than the counting or tabulating of votes, that protest shall not delay the canvass. (b) Notice of Hearing. – The county board shall give notice of the protest hearing to the protester, any candidate likely to be affected, any election official alleged to have acted improperly, and those persons likely to have a significant interest in the resolution of the protest. Each person given notice shall also be given a copy of the protest or a summary of its allegations. The manner of notice shall be as follows: (1) If the protest concerns the manner in which the votes were counted or the results tabulated, the protester shall be told at the time of filing that the protest will be heard at the time of the canvass. Others shall be notified as far in advance of the canvass as time permits. (2) If the protest concerns a matter other than the manner in which votes were counted or results tabulated, the county board shall comply with rules to be promulgated by the State Board of Elections concerning reasonable notice of the hearing. Failure to comply with the notice requirements in this subsection shall not delay the holding of a hearing nor invalidate the results if it appears reasonably likely that all interested persons were aware of the hearing and had an opportunity to be heard. (c) Conduct of Hearing. – The following principles shall apply to the conduct of a protest hearing before the county board of elections: (1) The county board may allow evidence to be presented at the hearing in the form of affidavits or it may examine witnesses. The chair or any two members of the board may subpoena witnesses or documents. Each witness must be placed under oath before testifying. (2) The county board may receive evidence at the hearing from any person with information concerning the subject of the protest. The person who made the protest shall be permitted to present allegations and introduce evidence at the hearing. Any other person to whom notice of hearing was given, if present, shall be permitted to present evidence. The board may allow evidence by affidavit. The board may permit evidence to be presented by a person to whom notice was not given, if the person apparently has a significant interest in the G.S. 163-182.10 Page 2 resolution of the protest that is not adequately represented by other participants. (3) The hearing shall be recorded by a reporter or by mechanical means, and the full record of the hearing shall be preserved by the county board until directed otherwise by the State Board. (d) Findings of Fact and Conclusions of Law by County Board. – The county board shall make a written decision on each protest which shall state separately each of the following: (1) Findings of fact. – The findings of fact shall be based exclusively on the evidence and on matters officially noticed. Findings of fact, if set forth in statutory language, shall be accompanied by a concise and explicit statement of the underlying facts supporting them. (2) Conclusions of law. – The conclusions the county board may state, and their consequences for the board's order, are as follows: a. "The protest should be dismissed because it does not substantially comply with G.S. 163-182.9." If the board makes this conclusion, it shall order the protest dismissed. b. "The protest should be dismissed because there is not substantial evidence of a violation of the election law or other irregularity or misconduct." If the county board makes this conclusion, it shall order the protest dismissed. c. "The protest should be dismissed because there is not substantial evidence of any violation, irregularity, or misconduct sufficient to cast doubt on the results of the election." If the county board makes this conclusion, it shall order the protest dismissed. d. "There is substantial evidence to believe that a violation of the election law or other irregularity or misconduct did occur, and might have affected the outcome of the election, but the board is unable to finally determine the effect because the election was a multicounty election." If the county board makes this conclusion, it shall order that the protest and the county board's decision be sent to the State Board for action by it. e. "There is substantial evidence to believe that a violation of the election law or other irregularity or misconduct did occur and that it was sufficiently serious to cast doubt on the apparent results of the election." If the county board makes this conclusion, it may order any of the following as appropriate: 1. That the vote total as stated in the precinct return or result of the canvass be corrected and new results declared. 2. That votes be recounted. 3. That the protest and the county board's decision be sent to the State Board for action by it. 4. Any other action within the authority of the county board. (3) An order. – Depending on the conclusion reached by the county board, its order shall be as directed in subdivision (c)(2). If the county board is not able to determine what law is applicable to the Findings of Fact, it may send its findings of fact to the State Board for it to determine the applicable law. (e) Rules by State Board of Elections. – The State Board of Elections shall promulgate rules providing for adequate notice to parties, scheduling of hearings, and the timing of deliberations and issuance of decision. (2001-398, s. 3; 2017-6, s. 3; 2018-146, s. 3.1(a), (b).) G.S. 163-182.7 Page 1 § 163-182.7. Ordering recounts. (a) Discretionary Recounts. – The county board of elections or the State Board of Elections may order a recount when necessary to complete the canvass in an election. The county board may not order a recount where the State Board of Elections has already denied a recount to the petitioner. (b) Mandatory Recounts for Ballot Items Within the Jurisdiction of the County Board of Elections. – In a ballot item within the jurisdiction of the county board of elections, a candidate shall have the right to demand a recount of the votes if the difference between the votes for that candidate and the votes for a prevailing candidate is not more than one percent (1%) of the total votes cast in the ballot item, or in the case of a multiseat ballot item not more than one percent (1%) of the votes cast for those two candidates. The demand for a recount must be made in writing and must be received by the county board of elections by 5:00 P.M. on the first business day after the canvass. The recount shall be conducted under the supervision of the county board of elections. (c) Mandatory Recounts for Ballot Items Within the Jurisdiction of the State Board of Elections. – In a ballot item within the jurisdiction of the State Board of Elections, a candidate shall have the right to demand a recount of the votes if the difference between the votes for that candidate and the votes for a prevailing candidate are not more than the following: (1) For a nonstatewide ballot item, one percent (1%) of the total votes cast in the ballot item, or in the case of a multiseat ballot item, one percent (1%) of the votes cast for those two candidates. (2) For a statewide ballot item, one-half of one percent (0.5%) of the votes cast in the ballot item, or 10,000 votes, whichever is less. The demand for a recount must be in writing and must be received by the State Board of Elections by noon on the second business day after the county canvass. If at that time the available returns show a candidate not entitled to a mandatory recount, but the Executive Director determines subsequently that the margin is within the threshold set out in this subsection, the Executive Director shall notify the eligible candidate immediately and that candidate shall be entitled to a recount if that candidate so demands within 48 hours of notice. The recount shall be conducted under the supervision of the State Board of Elections. (d) Rules for Conducting Recounts. – The State Board of Elections shall promulgate rules for conducting recounts. Those rules shall be subject to the following guidelines: (1) The rules shall specify, with respect to each type of voting system, when and to what extent the recount shall consist of machine recounts and hand-to-eye recounts. Hand-to-eye recounts shall also be ordered as provided by G.S. 163-182.7A. (2) The rules shall provide guidance in interpretation of the voter's choice. (3) The rules shall specify how the goals of multipartisan participation, opportunity for public observation, and good order shall be balanced. (2001-398, s. 3; 2003-278, ss. 10(b), 10(c); 2005-323, s. 6(a); 2005-428, s. 11(b); 2017-6, s. 3; 2018-146, s. 3.1(a), (b).) G.S. 163-182.7A Page 1 § 163-182.7A. Additional provisions for hand-to-eye recounts. (a) The rules promulgated by the State Board of Elections for recounts shall provide that if the initial recount is not hand-to-eye, and if the recount does not reverse the results, the candidate who had originally been entitled to a recount may, within 24 hours of the completion of the first recount, demand a second recount on a hand-to-eye basis in a sample of precincts. If the initial recount was not hand-to-eye and it reversed the results, the candidate who had initially been the winner shall have the same right to ask for a hand-to-eye recount in a sample of precincts. That sample shall be all the ballots in three percent (3%) of the precincts casting ballots in each county in the jurisdiction of the office, rounded up to the next whole number of precincts. For the purpose of that calculation, each one-stop (early) voting site shall be considered to be a precinct. The precincts to be recounted by a hand-to-eye count shall be chosen at random within each county. If the results of the hand-to-eye recount differ from the previous results within those precincts to the extent that extrapolating the amount of the change to the entire jurisdiction (based on the proportion of ballots recounted to the total votes cast for that office) would result in the reversing of the results, then the State Board of Elections shall order a hand-to-eye recount of the entire jurisdiction in which the election is held. There shall be no cost to the candidate for that recount in the entire jurisdiction. (b) Recounts under this section shall be governed by rules adopted under G.S. 163-182.7(d). (c) No complete hand-to-eye recount shall be conducted under this section if one has already been done under another provision of law. (2005-323, s. 6(b); 2017-6, s. 3; 2018-146, s. 3.1(a), (b).) G.S. 163-182.13 Page 1 § 163-182.13. New elections. (a)When State Board May Order New Election. – The State Board of Elections may order a new election, upon agreement of at least four of its members, in the case of any one or more of the following: (1)Ineligible voters sufficient in number to change the outcome of the election were allowed to vote in the election, and it is not possible from examination of the official ballots to determine how those ineligible voters voted and to correct the totals. (2)Eligible voters sufficient in number to change the outcome of the election were improperly prevented from voting. (3)Other irregularities affected a sufficient number of votes to change the outcome of the election. (4)Irregularities or improprieties occurred to such an extent that they taint the results of the entire election and cast doubt on its fairness. (b)State Board to Set Procedures. – The State Board of Elections shall determine when a new election shall be held and shall set the schedule for publication of the notice, preparation of absentee official ballots, and the other actions necessary to conduct the election. (c)Eligibility to Vote in New Election. – Eligibility to vote in the new election shall be determined by the voter's eligibility at the time of the new election, except that in a primary, no person who voted in the initial primary of one party shall vote in the new election in the primary of another party. The State Board of Elections shall promulgate rules to effect the provisions of this subsection. (d)Jurisdiction in Which New Election Held. – The new election shall be held in the entire jurisdiction in which the original election was held. (e)Which Candidates to Be on Official Ballot. – All the candidates who were listed on the official ballot in the original election shall be listed in the same order on the official ballot for the new election, except in either of the following: (1)If a candidate dies or otherwise becomes ineligible between the time of the original election and the new election, that candidate may be replaced in the same manner as if the vacancy occurred before the original election. (2)If the election is for a multiseat office, and the irregularities could not have affected the election of one or more of the candidates, the new election, upon agreement of at least four members of the State Board, may be held among only those candidates whose election could have been affected by the irregularities. (f)Tie Votes. – If ineligible voters voted in an election and it is possible to determine from the official ballots the way in which those votes were cast and to correct the results, and consequently the election ends in a tie, the provisions of G.S. 163-182.8 concerning tie votes shall apply. (g)Primary Required for a New Election. – For any new congressional general election ordered under subsection (a) of this section, a primary for that election shall be conducted. The State Board shall determine when the primary shall be held, and shall set the schedule for publication of the notice, preparation of absentee official ballots, and the other actions necessary to conduct the primary. (2001-398, s. 3; 2003-278, s. 8(a); 2008-150, s. 2(a); 2016-125, 4th Ex. Sess., s. 5(j); 2017-6, ss. 2, 3, 7(j); 2018-146, ss. 1, 3.1(a), (b).) 08 NCAC 02 .0110 ACTIONS OF COUNTY BOARD AS TO ELECTION PROTESTS (a) The county board shall deliver any filed election protest, including any attachments, to the State Board as follows: (1) if hand delivered or mailed, within 24 hours after the election protest is filed; (2) if faxed, the same day the election protest is filed; or (3) if emailed, the same day the election protest is filed. (b) The county board shall not consider election protests not timely filed, but shall refer all such untimely protests, along with copies of the protest and attachments, to the State Board office for consideration under G.S. 163-182.12. For the purposes of this Rule, timely means within time specified in G.S. 163-182.9. (c) Upon receipt of a timely filed election protest, the county board of elections shall hold a preliminary consideration hearing in accordance with G.S. 163-182.10. If the county board determines that a hearing is necessary, 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 as determined by the county board. Only for good cause and upon informing the State Board office, may a hearing be set on or continued to a weekend day or holiday. Examples of good cause include, but are not limited to, procuring documentary evidence or securing witness testimony necessary to conclude the hearing. (d) Notice of hearing as required by G.S. 163-182.10(b) shall be given at least three business days prior to the day of the hearing, and the notice required shall be notice by any means chosen by the county board. Any oral notice of the hearing shall be followed with a written notice sent prior to the hearing date. The oral notice shall constitute valid notice meeting the three-day notice requirement. (e) Required procedures include: (1) Upon 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 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. 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. (f) A county board of elections shall timely hear and decide all protests, unless: (1) the protest is administratively dismissed pursuant to 08 NCAC 02 .0114; or (2) the county board of elections receives alternative instructions from the State Board issued under G.S. 163-182.12. If a protest does not concern the manner in which votes were counted or results tabulated, a county board of elections shall not delay canvass in order to hear the protest. A protest that alleges the occurrence of an election law violation regarding an insufficient number of votes to change the outcome of a contest within the jurisdiction of a county board of elections shall not delay canvass by a county board of elections. History Note: Authority G.S. 163-22; 163-182.10; Temporary Adoption Eff. April 15, 2002; Eff. August 1, 2004; Readopted Eff. September 1, 2018; Amended Eff. November 1, 2020. 08 NCAC 02 .0114 DISMISSAL OF IMPROPER PROTEST FILINGS (a) The county board of elections shall dismiss any matter purporting to arise as an election protest under G.S. 163- 182.9 on the following bases: (1) The matter fails to contest the manner in which votes were counted or results tabulated, or fails to allege a violation of election law or irregularity or misconduct sufficient to cast doubt on the results of the election; (2) The individual submitting the matter was neither a registered voter eligible to participate in the protested contest within the county nor a candidate for nomination or election in the protested contest; (3) The matter was not filed in accordance with G.S. 163-182.9 or was not filed on the form prescribed in 08 NCAC 02 .0111; (4) The protest is duplicative or was made for the purpose of delay; (5) The protest filing, taking into account the totality of the circumstances, fails to include evidence which, if true, substantiates the probable occurrence of an outcome-determinative defect in the manner in which votes were counted or results tabulated, or the probable occurrence of an outcome-determinative violation of election law, irregularity, or misconduct; or (6) The matter, including the initial filing and all subsequent oral or written submissions, fails to allege facts sufficient to constitute substantial evidence of the occurrence of an outcome-determinative violation of election law, irregularity, or misconduct. The State Board may consider protests in accordance with G.S. 163-182.12. (b) If the matter is filed with a county board of elections, the county director of elections shall review the allegations and evidence presented in or attached to the filing. If the director of elections finds that the filing must be dismissed pursuant to Paragraph (a) of this Rule, the director shall transmit his or her administrative recommendation that the matter be dismissed, citing applicable defects and the requirements of this Rule. The director's administrative recommendation shall be transmitted in writing to the county board members and the executive director of the State Board no later than two business days after the matter was filed. The director of elections shall confirm that the county board members have received all filings and the director's administrative recommendation before proceeding to issue a notice of dismissal. Nothing in this Paragraph shall delay the county board of elections in proceeding to consider the protest as required under . G.S. 163-182.10. If, after two calendar days following the transmission required under this Paragraph, neither a county board member nor the executive director of the State Board has raised any oral or written objection to the county director's recommendation for administrative dismissal, the county director shall issue a written notice of administrative dismissal to the individual(s) who has filed the matter. The notice shall: (1) Be sent by certified mail or commercial courier such that the date of delivery may be verified, unless the recipient has agreed in writing to receive notice by electronic means; (2) State that the matter was provided to the county board of elections members, but will not be heard by the county board; (3) State that the matter has been dismissed administratively, citing this rule and all applicable bases listed in Paragraph (b) of this Rule; and (4) Enclose an appeal form required under Paragraph (d) of this Rule. If within two calendar days, any county board member or the executive director of the State Board raises any oral or written objection to the recommendation for administrative dismissal by the county director, the county board of elections shall proceed to hear the matter. An objection raised under this Subparagraph shall in no way affect or limit the county board of elections' authority to dismiss the matter under Paragraph (b) of this Rule or any other basis permitted by law. (c) Individuals subject to an administrative dismissal entered by the director of elections may appeal the decision to the executive director of the State Board. All appeals brought under this Paragraph shall be in writing on a form prescribed under this Paragraph (available at ncsbe.gov) and must be received by the State Board office no later than five business days after receipt of the written notice of administrative dismissal from the county director. The State Board shall be deemed to have received the written appeal when it receives the physical form required under this Paragraph either by U.S. mail, courier service, or hand delivery. All appeals shall be made on a form that includes the following statements: (1) I am appealing from an administrative dismissal of a matter that I filed at the [county name] Board of Elections on [date]. (2) I received an administrative notice of dismissal on [date]. (3) I have enclosed a copy of my original materials filed with the county board of elections. ____ YES ____ NO (4) I have enclosed a copy of the written notice of administrative dismissal. ____ YES ____ NO (5) This matter should be heard for the following reasons: _______________________________________________________________________________ _______________________________________________________________________________ _______________________________________________________________________________ (6) I request notice of any action on this appeal at the following address: Mailing Address: _______________________________ Phone Number: _______________________________ Email Address: _______________________________ (d) The executive director of the State Board shall inspect all appeals filed under Paragraph (c) of this Rule. Within two business days after the receipt of an appeal, the executive director shall transmit a copy of the appeal to the State Board members along with a written statement indicating the executive director's administrative determination either to grant or to deny the appeal. (1) If the executive director's administrative determination is to grant the appeal, the executive director shall issue written notice to the county board of elections and to the appealing party indicating that the matter is remanded to the county board of elections for a hearing. The executive director's administrative determination under this Subparagraph shall in no way affect the county board of elections' authority to dismiss the matter under Paragraph (a) of this Rule or any other basis permitted by law. (2) If the executive director's administrative determination is to deny the appeal, but any State Board member raises any oral or written objection within three calendar days, the executive director shall grant the appeal, issue a written notice, and remand the matter to the county board of elections. If no State Board member raises any oral or written objection within three calendar days, the executive director shall issue a written notice to the appealing party and to the county board of elections stating that the appeal is denied. Dismissal under this Subparagraph shall be considered a final agency action for purposes of seeking judicial review. (e) If the matter is filed with the State Board, the executive director of the State Board shall proceed in a manner outlined in Paragraph (b) of this Rule, including distribution to the State Board members, the opportunity to interpose an objection, and the issuance of notice, except that there shall be no right of appeal under Paragraph (c) of this Rule and that the executive director may administratively remand the matter for hearing by the county board of elections in the manner prescribed under Subparagraph (d) of this Rule. History Note: Authority G.S. 163-22; 163-182.12; Eff. October 1, 2018; Amended Eff. November 1, 2020. 08 NCAC 09 .0106 GENERAL GUIDELINES (a) Prior to each recount under G.S. 163-182.7, the county board of elections or State Board shall inform the political parties and candidates of the recount and describe to them the process of conducting recounts. A county board of elections shall notice the recount at least 48 hours prior to the start of the recount. The county board shall send notice by email to the county board's regular notice list, county party chairs, and the candidates in the contest subject to the recount. (b) In the case of tie votes, the winner shall be determined by lot only in the case set out in G.S. 163-182.8(2). Where there are 5,000 or fewer votes cast, there shall be only one determination by lot for each tied election. There shall be no determination by lot until the time has expired for the affected candidate(s) to request a recount, unless all of the affected candidate(s) waive their right in writing to request a recount. (c) During the conduct of recounts, ballots shall be counted in accordance with the principles in G.S. 163-182.1(a). (d) In conducting hand to eye recounts or recounts of paper ballots, a bipartisan team of four shall be used: two officials (one from each of the two parties in the State with the largest number of registered voters) to relay the results of each ballot with one person reading the ballot and the other official observing the ballot and the person reading the results of the ballot, and two officials (one from each of the two parties in the State with the largest number of registered voters) each separately recording the tally of votes for each candidate on paper while stating aloud after each choice is read on the fifth tally for a particular candidate, the word "tally." If, after diligently seeking to fill the positions with voters affiliated with each of the two parties in the State with the largest number of registered voters, the county board still has an insufficient number of officials for the recount, the county board by a majority vote of its members, including at least one board member of each political party represented on the board, may appoint to the bipartisan team an unaffiliated voter or voter affiliated with one of the other political parties. In no instance shall the county board appoint more than two members to a bipartisan team who are unaffiliated or affiliated with one of the other political parties. Bipartisan team members shall be registered voters in the State. County board members shall not serve on the bipartisan team. (e) The county board of elections shall conduct recounts only as follows: (1) the recount is mandatory under G.S. 163-182.7(b) or (c) or G.S. 163-182.7A; or (2) the recount is not mandatory but the county board of elections or the State Board of Elections determines, using its authority in G.S. 163-182.7(a), that in order to complete the canvass a recount is necessary. (f) A candidate shall have the right to call for a hand-eye recount within 24 hours after a discretionary recount in G.S. 163-182.7(a) or by noon on the next business day of the county board office, whichever is later, if the apparent winner is the apparent loser after the discretionary recount. A candidate shall have the right to call for a hand-eye sample recount within 24 hours after a mandatory machine recount, pursuant to G.S. 163-182.7A. (g) Any candidate shall have the right to file an election protest within 24 hours after a recount is completed or by noon of the next business day of the county board office, whichever is later, if the protest relates to the conduct of the recount. Allegations unrelated to the recount may not be included in the protest. (h) Recounts shall be performed in the presence of a quorum of county board members or in the presence of a bipartisan team of two county board members. Determinations of voter intent shall be made by a quorum of the board and at least one board member of each political party shall be represented. History Note: Authority G.S. 163-22; 163-182.7; Temporary Adoption Eff. April 15, 2002; Eff. August 1, 2004; Readopted Eff. June 1, 2019; Amended Eff. September 1, 2021.