1. County Election Protests, and Candidate Challenges Hearings and Their Appeal Don Wright SBE Statewide Training March 31, 2010

2. Election Protests Follow Chapter 12 of the Precinct Uniformity Manual. Checklists and forms are in this chapter. Read the Statutes and Rules: GS 163-182.9 thru 163-182.14 and 8 NCAC 2.0109 thru 2.0113.

3. Preliminary Consideration Person filing the protest has right to be present and have notice. The CBE meets ASAP for a preliminary consideration but follows public notice requirement of at least 48 hours prior to time of meeting (GS 143-318.12) At the preliminary hearing, the test is whether the protest shows probable cause that a violation of election law, irregularity, or misconduct has occurred. Assume the allegations are true in determining probable cause. Err in favor of probable cause.

4. Protests Alleging Counting and Tabulation Errors Must be resolved prior to canvass May recess canvass meeting for up to three days (longer must be approved by the SBE) to resolve contest protested Other contests not subject to the protest can be canvassed at the usual time Appeal of a dismissed protest does not delay canvass Canvass is not delayed by pending protests that do not involve counting or tabulation

5. Notice of Hearing After preliminary hearing, the hearing shall not be later than 10 business days from preliminary hearing with notice of the hearing at least three business days prior to hearing. Notice goes to protestor, any affected candidates, any election official alleged in the protest of error, and any interested persons. Notice includes a copy of the protest or a summary of Its allegations Notice failure may not invalidate hearing results

6. Conduct of Hearing Witnesses and documents may be subpoenaed. Subpoena issued by CBE chair at request of any interested party Witnesses must be put under oath before testifying Protestor and other interested parties are allowed to present evidence Be liberal in allowing persons desiring to speak to do so If documents are presented, have them marked as exhibits

7. Election Protest Transcripts Send the CBE hearing transcript to the SBE ASAP, 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.

8. Concerns over CBE Protest Orders 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 SBE to hear the appeal.

9. Appeal of Protests to the SBE Deadlines center around the CBE written order. 24 hours after written order filed at CBE office, notice of appeal to SBE must be given to CBE. Written notice (use the appeal form) to SBE delivered or mailed 2 nd day after CBE written order is filed in CBE office (when it pertains to first primary). Deadline is 5 days where an election other than first primary is involved. Appeal to SBE stays certification of electoral contests involved in the appeal.

10. Waiver of Appearances In either a protest appeal or an appeal of a candidate challenge, the appealing person or a person directly affected by the decision may waive both their notice of and appearance before the SBE. A waiver can be obtained either at the SBE level prior to the appeal hearing or at the CBE level after appeal to the SBE. Such waiver should be in writing and signed by the person making the waiver; if obtained by a CBE, it needs to be sent to the SBE after immediately informing the SBE of the waiver.

11. Options for SBE Decide appeal on the record and the transcript Ask for supplemental information to be provided Receive additional evidence at the hearing Hold a new hearing on the protest and resolve the protest on that hearing Remand the protest back to the county for further action as directed by the SBE

12. SBE Powers SBE may hear protests not timely filed. May take over protests pending before CBE. Where it can be determined with certainty an identifiable group of voters had their votes.lost or were given the wrong ballot, allow that group to recast votes. Order new elections. No other entity in N.C., including courts, can order new elections.

13. Appeal of SBE Order SBE order is served on the parties. Appeal must be made to the Wake County Superior Court within 10 days of the service of the order. Stay of certification of any election is lifted after SBE order except to the extent the Superior Court issues a new stay. Superior Court reviews the SBE order as to sufficiency of facts and law, it does hold a new trial on the protest.

14. 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 than Candidate Challenges, do not assume they are handled the same way.

15. Makeup of Hearing Panels GS 163-127.3 Single County Office…Panel is CBE Multicounty Office…SBE appoints 3 or 5 members from the counties involved Statewide Office…Panel is SBE Must be appointed within 2 business days after candidate challenge is filed If possible, must have members of multiple parties on the panel

16. Conduct of Hearing Within 5 business days after challenge is filed, announce date, time, and location of hearing Allow depositions and subpoenas Follow the NC Rules of Evidence All witnesses must testify under oath Hearing must be recorded Render a written decision within 20 business days after filing of challenge

17. Burden of Proof in Candidate Challengers 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 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.

18. Residency in a Candidate Challenge is a Totality of the Evidence 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).

19. Appeals of Candidate Challenges Controlled by GS 163-127.6. Appeal taken within 2 business days after panel serves written decision upon the parties. Appeal is to SBE from a CBE panel and to NC Court of Appeals from a SBE panel. These matters are time sensitive. Both the statute and the need to finalize ballots dictate prompt handling.