1. Challenges…..to Prevent Persons from Unlawfully Voting and to Protect the Integrity of the Election. Don Wright General Counsel NC State Board of Elections August 2012

2. Law and Forms 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.

3. 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

4. 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).

5. Burden of Proof The burden of proof is placed squarely on the challenger, and the challenge must not be made “indiscriminately.” 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. See GS 163-90.1.

6. Pre-Election Challenge GS 163-85 Challenge 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 is 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.

7. Notice to Challenged Absentee Voter A pre-election day challenge under GS 163-85 involves a preliminary hearing. The statute does not deal with notice to the challenged voter as to the preliminary hearing. GS 163-86(b) mandates notice to the challenged voter of regular hearing on the matter. Notice can be fully or partially waived by a challenged voter.

8. Election Day Challenge GS 163-87 1.Any registered voter who resides in the same precinct (in a county, state, or federal election) municipality (in a municipal election) or district (in a special election) has the right to challenge a voter, in that same precinct, municipality or district, whenever the voter appears to vote. 2.The challenge must be made PRIOR AND UP TO THE TIME of the voter casting their ballot. 3.If the voter is challenged while making ballot selections------CANCEL THE VOTER’S BALLOT. 4.The person making the challenge, MUST complete the required “NOTICE OF CHALLENGE” form that is delivered to the Judges. 5.After the form is received, the Chief Judge and the other Judges hold an open hearing, at which both the challenger and the challenged may appear, to determine whether the challenged person is qualified to vote. The hearing should be held immediately and it must be held prior to the polls closing. 6.If the challenged voter states he is qualified to vote, and offers proof of identity through sworn testimony, the Chief Judge shall administer the required oath.

9. Oath for Challenged Voter on Election Day YOU DO SOLEMNLY [SWEAR] [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 ELECTION; THAT YOU HAVE OR WILL HAVE RESIDED IN THIS STATE, IN THE PRECINCT, AND IN THIS MUNICIPALITY/DISTRICT FOR WHICH REGISTERED FOR 30 DAYS BY THE DATE OF THE ELECTION; THAT YOU ARE NOT DISQUALIFIED FROM VOTING BY THE CONSTITUTION AND LAWS OF THIS STATE; THAT YOUR NAME IS ___________ AND THAT IN SUCH NAME YOU WERE DULY REGISTERED AS A VOTER OF THIS MUNICIPALITY/DISTRICT; THAT YOU ARE THE PERSON YOU REPRESENT YOURSELF TO BE; AND THAT YOU HAVE NOT VOTED IN THIS ELECTION AT THIS OR ANY OTHER VOTING PLACE. SO HELP YOU, GOD. If the challenged voter refuses to take the oath, the challenge is sustained (accepted). There is no need for a hearing, the voter is denied a ballot and the registration records are noted that the voter has been challenged and the challenge was sustained.

10. The Actual Hearing After the challenged voter takes the oath: the hearing by the judges continues until they are satisfied that sufficient evidence and testimony has been had to allow them to make a decision. Questions are asked and answered. Witnesses must be sworn. The decision is determined by a majority vote of the judges with the challenger having the burden of proof. The decision should not be based upon one answer, but the TOTALITY of the testimony and evidence. The judges may believe all, some, or none of the evidence.

11. IF THE CHALLENGE IS OVERRULED (DENIED), THEN The voter is allowed to vote with a paper ballot In the poll list, opposite the name, the word “SWORN” is written In the poll book, opposite the name, the word “SWORN” is written The voter marks their ballot and then seals it in the envelope provided in the presence of the Chief Judge The “Results of Election Day Hearing” form is to be completed and signed by all 3 Judges Paperclip the completed “Results of Election Day Hearing” form to the envelope containing the challenged ballot

12. If the challenged voter refuses to take the oath or the Judges find the voter NOT qualified and the voter still insists upon voting: The challenged voter must complete an “Application for Challenged Ballot” A Judge enter a “C” in the poll list by the challenged voter’s name In the poll book, a Judge will turn to a separate page, enter the heading of “CHALLENGED BALLOT”, enter & number the challenged voter’s name, sequentially The Judges give the challenged voter a paper ballot & writes at the top of the ballot, ”CHALLENGED BALLOT #_____”, this number must correspond with the number in the poll book by the voter’s name The voter marks their ballot and then seals it in the envelope provided in the presence of the Chief Judge The Chief Judge marks the envelope, “CHALLENGED BALLOT” The “Results of Election Day Hearing” form is to be completed and signed by all 3 Judges Paperclip the completed “Results of Election Day Hearing” form to the envelope containing the challenged ballot

13. Challenge to Mail-in Absentee Voters GS 163-89 Challenge to be made on Election Day between noon and 5 pm at county board office. Must be made by voter in same precinct Heard on Canvass Day prior to Canvass Administer oaths and hear evidence

14. Challenge of “One-Stop” Voting Ballot GS 163-227.2 (h) Notwithstanding the provisions of G.S. 163-89(a) and (b), a challenge may be entered against a voter at a one-stop site under subsection (g) of this section or during one-stop voting at the county board office. The challenge may be entered by a person conducting one-stop voting under this section or by another registered voter who resides in the same precinct as the voter being challenged. If challenged at the place where one-stop voting occurs, the voter shall be allowed to cast a ballot in the same way as other voters. The challenge shall be made on forms prescribed by the State Board of Elections. The challenge shall be heard by the county board of elections in accordance with the procedures set forth in G.S. 163-89(e).

15. Where Do The Appeals Go? From pre-election challenges…..To the Superior Court of the county where the challenge was made with 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 challenges by the county board, then the same as above THERE ARE NO CHALLENGE APPEALS TO THE SBE

16. What is Provided the Superior Court ? What Does the Superior Court Look For?

17. GS 163-90.2 Board may correct the Voter registration of the voter against whom a challenge was sustained. Records on Challenge kept for 6 months and during the pendency of any appeal. If the challenged voter was eligible to vote for some of the ballot items on the challenged ballot, those votes can be counted as if it was a provisional.