Challenges & Election Protest:How to Calm the Beast

R. Michael Cox Pasquotank County AttorneyAugust, 2014

“Calming the Beast” in Pasquotank County

Be prepared

and organized

• county attorney• State Board of Elections

materials (flowcharts)• read the statutes and

administrative code where applicable.

• read the footnotes – case law

Preparation

SBE General Counsel Interplay with CBE’s

• The SBE General Counsel does not represent CBE’s.

• We always defer to county attorneys unless they are urging actions that are contrary to law or SBE directives.

• County Attorney will discuss any conflict of interest with representing both CBE and County

• We are also a “sounding board”.

• The SBE General Counsel acts as source of:

1. factual information2. legal information3. legal forms and

documents 4. history of issues5. national and state

perspective

SBOE General Counsel Interplay with CBE’s

• The SBOE General Counsel does not represent CBEs.

• We defer to county attorneys unless they are urging actions that are contrary to law or SBOE directives.

• County Attorney will discuss any conflict of interest in representing both CBE and County

• We are also a “sounding board”.

• The SBE General Counsel acts as source of:

1. factual information

2. legal information

3. legal forms and documents

4. history of issues

5. national and state perspective

Quasi-Judicial

• sworn testimony• Let the facts come to you.

Resist the urge to investigate.

• due process• non-lawyers “representing”

parties (see Unauthorized Practice Advisory Opinion 2006-1)

• due process, recusal, open meetings, conclusions of law, attorney’s fees

Knight v. Higgs (2008) 189 NC App. 696

Chairman• meet with staff• prepare an opening

statement• oaths and Bibles• maintain order

“Each county board of elections shall possess full power to

maintain order, and to enforce obedience to its lawful

commands during its sessions, and shall be constituted an

inferior court for that purpose.”

N.C.G.S. §163-34. Power of county board of elections to maintain order

Candidate Challenges

• Unless specifically addressed otherwise by the Candidate Challenge statutes (GS 163-127.1 through 163-127.6), follow the provisions of how to handle protest appeals when handling Candidate Challenge Appeals.

• Voter Challenges are different from Candidate Challenges. Do not assume they are handled the same way.

Within 5 days after challenge is filed – must set the hearing

Notice – candidate, other candidate and county chair of each political party

Render an opinion within 20 business days.

Conduct of the Hearing

• The chair or any two members may subpoena witnesses or documents.

• Parties may subpoena witnesses or documents.

• Formal rules of evidence apply.

Burden of Proof in Candidate Challenges

•UNLIKE in most judicial proceedings, election protests and voter challenges, a challenged candidate has the burden of proof in a candidate challenge to show by the greater weight of the evidence that he/she is qualified to be a candidate. •This provision as to burden of proof in GS 163-127.5 was established by the General Assembly.

• To legally change a domicile, there must be an actual abandonment of the first domicile with the intent not to return to it, and the acquisition of a new domicile by actual residence at another place with the intent to make that new place a permanent home. Owens v. Chaplin, 228 NC 705, 47 SE2d 12 (1948).

Residency in a Candidate Challenge is a Totality of the Evidence

Appeals of Candidate Challenges

•These matters are time sensitive. Both the statute and the need to finalize ballots dictate prompt handling.

Transcripts• Send the CBE hearing transcript to

the SBOE ASAP -- even before the 7 day deadline if possible.

• All CBE protests must be reported by a court reporter unless such action is waived by permission of the Executive Director prior to the county hearing. They are transcribed upon an appeal.

• Exhibits are important and must be included as part of the transcribed record.

Do NOT Deliberate the Outcome of the Candidate Challenge Hearing in a Closed Session

The parties, the public and the media are entitled to hear the comments and opinions of the county board as they consider and deliberate the testimony, evidence and applicable law.

Challenges…..to Prevent Persons from Unlawfully Voting and to Protect the Integrity of the Election

Four Types of Voter Challenges

Voter Challenges made:

• prior to Election/Primary Day• on Election Day• at One-Stop Absentee Sites• to Mail-in Absentee Ballots

Pre-Election Challenge GS 163-85Challenge may be issued before an election and on Election Day. Pre-election challenges may be made separately in writing, under oath, to the county boards of election by any registered voter of the county in which the challenged voter is registered. Grounds for the challenge are set out in the statute. The county election board holds a preliminary hearing to determine whether there is probable cause to believe that the challenge is valid. If so, notice is sent to the challenged voter, and a hearing is scheduled at which the challenger has the burden of proof. Hearing procedure is set out in GS 163-86.

• See GS 163-84 through GS 163-90.3 for challenge law. See GS 163-289 for law as to municipal challenges.

• Use the forms for notice of challenges and application for challenged ballots (both printed on the front and back of the envelope) and results of challenge hearing. Pre-election challenge form found in Chapter 12 of the Precinct Uniformity Manual.

Law and Forms

Burden of Proof (GS 163-90.1)

The burden of proof is placed squarely on the challenger, and the challenge must not be made “indiscriminately.” (GS 163-90.1(a)) No challenge shall be sustained unless the challenge is substantiated by affirmative proof. In the absence of proof, the presumption is that the voter is properly registered or affiliated.

Returned Mail As Evidence

North Carolina has a unique approach to dealing with challenges to residence based on a returned first-class piece of mail. In pre-election challenges, the returned mail is prima facie evidence that the voter has changed addresses (GS 163-85(e)), but in Election Day challenges, it may not be used as evidence of a change in residence (GS 163-88).

• Findings of facts and conclusions of law must be made and have a basis in the evidence/testimony presented before the CBE.

• Seek the help of your county attorney both as to hearing issues and preparing orders.

• A well written and concise county order firmly based upon the facts of the protest are necessary for the appeal.

Concerns over CBE Orders

GS 163-90.2

• Board may correct the voter registration of the voter against whom a challenge was sustained.

• Records on Challenge are kept for 6 months and during the pendency of any appeal.

• If the challenged voter were eligible to vote for some of the ballot items on the challenged ballot, those votes can be counted as if it were a provisional.

Where Do The Appeals Go?

• From pre-election challenges…..to the Superior Court of the county where the challenge was made. Appeals shall be made within 10 days from the decision.

• From election-day challenge where the challenged ballots were reviewed by the county board, then the same as above.

• From the review of absentee ballot and one-stop challenges by the county board, then the same as above.

• THERE ARE NO CHALLENGE APPEALS TO THE STATE BOARD OF ELECTIONS.

What is Provided the Superior Court on Challenge Appeals?

(1) Petition for Review of Administrative Agency Decision

(2) response to Petition for Review

(3) the transcript of proceedings before the County Board of Elections

(4) the (stipulated) Findings of Fact and Conclusions of Law

What Does the Superior Court Look For?

WHETHER: (1) the CBE committed any errors of law;

(2) the Board followed the procedures specified by statute and ordinance;

(3) the appropriate due process rights of Petitioner were protected,

including the rights to offer evidence, cross-examine witnesses, and inspect documents;

(4) the Board’s decision was supported by competent, material and substantial evidence in the whole record; and(5) the Board’s action was not arbitrary and capricious.

ProtestsG.S. 163-182.9 and

8 NCAC 02.0110-0111

Filing a Protest

•any eligible voter or candidate

•must use SBOE approved forms

• The protest shall state whether the protest concerns the manner in which votes were counted and results tabulated or concerns some other irregularity.

• Remedy

• Timing (if not timely filed, SBOE may intervene and take jurisdiction).

Preliminary ConsiderationGS 163-182.10

• CBE meet ASAP to determine whether protest substantially complies with filing requirements and whether it establishes probable cause of a violation or irregularity.

• If one or both are not met, dismiss.• Protester may amend or appeal to SBOE.• If both requirements found, set a hearing.

Hearing• set within 10 business days of preliminary

hearing• notice at least 3 business days• chair or any two members may issue

subpoena for person or documents• affidavits• evidence from “any person concerning the

subject of the protest”• formal Rules of Evidence do not apply• hearing must be recorded by a court reporter• need not be transcribed unless appealed• transcript - county board’s expense

Decision• decision must be made by 5:00

p.m. day after hearing concludes

• written decision within 5 business days after oral decision

• findings of fact and conclusions of law (prescribed in the statutes)

Appeals• must use SBOE Appeal Form• notice of appeal filed with CBE within 24

hours of County BOE Order. Filing of appeal with SBOE by end of 5th day after decision filed, except second day after decision filed when it involves a first primary.

• SBOE has options on how to consider appeal

• county board to provide transcript of hearing• where possible, SBOE Appeal Hearing to

follow same procedures as county hearing

Questions?

Contact Information

R. Michael (Mike) CoxPasquotank County Attorney

coxm@co.pasquotank.nc.us

(252) 335-0569