North Carolina § 163-111 - Determination of primary results; second primaries.

§ 163-111. Determination of primary results; second primaries.

Nomination Determined by Substantial Plurality; Definition of Substantial Plurality. - Except as otherwise provided in this section, nominations in primary elections shall be determined by a substantial plurality of the votes cast. A substantial plurality within the meaning of this section shall be determined as follows: If a nominee for a single office is to be selected, and there is more than one person seeking nomination, the substantial plurality shall be ascertained by multiplying the total vote cast for all aspirants by thirty percent (30%). Any excess of the sum so ascertained shall be a substantial plurality, and the aspirant who obtains a substantial plurality shall be declared the nominee. If two candidates receive a substantial plurality, the candidate receiving the highest vote shall be declared the nominee. If nominees for two or more offices (constituting a group) are to be selected, and there are more persons seeking nomination than there are offices, the substantial plurality shall be ascertained by dividing the total vote cast for all aspirants by the number of positions to be filled, and by multiplying the result by thirty percent (30%). Any excess of the sum so ascertained shall be a substantial plurality, and the aspirants who obtain a substantial plurality shall be declared the nominees. If more candidates obtain a substantial plurality than there are positions to be filled, those having the highest vote (equal to the number of positions to be filled) shall be declared the nominees. Right to Demand Second Primary. - If an insufficient number of aspirants receive a substantial plurality of the votes cast for a given office or group of offices in a primary, a second primary, subject to the conditions specified in this section, shall be held: If a nominee for a single office is to be selected and no aspirant receives a substantial plurality of the votes cast, the aspirant receiving the highest number of votes shall be declared nominated by the appropriate board of elections unless the aspirant receiving the second highest number of votes shall request a second primary in accordance with the provisions of subsection (c) of this section. In the second primary only the two aspirants who received the highest and next highest number of votes shall be voted for. If nominees for two or more offices (constituting a group) are to be selected and aspirants for some or all of the positions within the group do not receive a substantial plurality of the votes, those candidates equal in number to the positions remaining to be filled and having the highest number of votes shall be declared the nominees unless some one or all of the aspirants equal in number to the positions remaining to be filled and having the second highest number of votes shall request a second primary in accordance with the provisions of subsection (c) of this section. In the second primary to select nominees for the positions in the group remaining to be filled, the names of all those candidates receiving the highest number of votes and all those receiving the second highest number of votes and demanding a second primary shall be printed on the ballot. Procedure for Requesting Second Primary. - A candidate who is apparently entitled to demand a second primary, according to the unofficial results, for one of the offices listed below, and desiring to do so, shall file a request for a second primary in writing with the Executive Director of the State Board of Elections no later than 12:00 noon on the ninth day (including Saturdays and Sundays) following the date on which the primary was conducted, and such request shall be subject to the certification of the official results by the State Board of Elections. If the vote certification by the State Board of Elections determines that a candidate who was not originally thought to be eligible to call for a second primary is in fact eligible to call for a second primary, the Executive Director of the State Board of Elections shall immediately notify such candidate and permit the candidate to exercise any options available to the candidate within a 48-hour period following the notification: A candidate who is apparently entitled to demand a second primary, according to the unofficial results, for one of the offices listed below and desiring to do so, shall file a request for a second primary in writing with the chairman or director of the county board of elections no later than 12:00 noon on the ninth day (including Saturdays and Sundays) following the date on which the primary was conducted, and such request shall be subject to the certification of the official results by the county board of elections: Immediately upon receipt of a request for a second primary the appropriate board of elections, State or county, shall notify all candidates entitled to participate in the second primary, by telephone followed by written notice, that a second primary has been requested and of the date of the second primary. Tie Votes; How Determined. - In the event of a tie for the highest number of votes in a first primary between two candidates for party nomination for a single county, or single-county legislative district office, the board of elections of the county in which the two candidates were voted for shall conduct a recount and declare the results. If the recount shows a tie vote, a second primary shall be held on the date prescribed in subsection (e) of this section between the two candidates having an equal vote, unless one of the aspirants, within three days after the result of the recount has been officially declared, files a written notice of withdrawal with the board of elections with which he filed notice of candidacy. Should that be done, the remaining aspirant shall be declared the nominee. In the event of a tie for the highest number of votes in a first primary among more than two candidates for party nomination for one of the offices mentioned in this subdivision, no recount shall be held, but all of the tied candidates shall be entered in a second primary. In the event of a tie for the highest number of votes in a first primary between two candidates for a State office, for United States Senator, or for any district office (including State Senator in a multi-county senatorial district and member of the State House of Representatives in a multi-county representative district), no recount shall be held solely by reason of the tie, but the two candidates having an equal vote shall be entered in a second primary to be held on the date prescribed in subsection (e) of this section, unless one of the two candidates files a written notice of withdrawal with the State Board of Elections within three days after the result of the first primary has been officially declared and published. Should that be done, the remaining aspirant shall be declared the nominee. In the event of a tie for the highest number of votes in a first primary among more than two candidates for party nomination for one of the offices mentioned in this subdivision, no recount shall be held, but all of the tied candidates shall be entered in a second primary. In the event one candidate receives the highest number of votes cast in a first primary, but short of a substantial plurality, and two or more of the other candidates receive the second highest number of votes cast in an equal number, the proper board of elections shall declare the candidate having the highest vote to be the party nominee, unless all but one of the tied candidates give written notice of withdrawal to the proper board of elections within three days after the result of the first primary has been officially declared. If all but one of the tied candidates withdraw within the prescribed three-day period, and the remaining candidate demands a second primary in accordance with the provisions of subsection (c) of this section, a second primary shall be held between the candidate who received the highest vote and the remaining candidate who received the second highest vote. (Effective until March 9, 2022) Date of Second Primary; Procedures. - If a second primary is required under the provisions of this section, the appropriate board of elections, State or county, shall order that it be held 10 weeks after the first primary if any of the offices for which a second primary is required are for a candidate for the office of United States Senate or member of the United States House of Representatives. Otherwise, the second primary shall be held seven weeks after the first primary. (Effective March 9, 2022 until June 1, 2022) Date of Second Primary; Procedures. - If a second primary is required under the provisions of this section, the appropriate board of elections, State or county, shall order that it be held 10 weeks after the first primary if any of the offices for which a second primary is required are for a candidate for the office of United States Senate or member of the United States House of Representatives. Otherwise, the second primary shall be held seven weeks after the first primary. (Effective June 1, 2022) Date of Second Primary; Procedures. - If a second primary is required under the provisions of this section, the appropriate board of elections, State or county, shall order that it be held 10 weeks after the first primary if any of the offices for which a second primary is required are for a candidate for the office of United States Senate or member of the United States House of Representatives. Otherwise, the second primary shall be held seven weeks after the first primary. No Third Primary Permitted. - In no case shall there be a third primary. The candidates receiving the highest number of votes in the second primary shall be nominated. If in a second primary there is a tie for the highest number of votes between two candidates, the proper party executive committee shall select the party nominee for the office in accordance with the provisions of G.S. 163-114. Governor, Lieutenant Governor, All State executive officers, Justices, Judges, or District Attorneys of the General Court of Justice, United States Senators, Members of the United States House of Representatives, State Senators in multi-county senatorial districts, and Members of the State House of Representatives in multi-county representative districts. State Senators in single-county senatorial districts, Members of the State House of Representatives in single-county representative districts, and All county officers. There shall be no registration of voters between the dates of the first and second primaries. Persons whose qualifications to register and vote mature after the day of the first primary and before the day of the second primary may register on the day of the second primary and, when thus registered, shall be entitled to vote in the second primary. The second primary is a continuation of the first primary and any voter who files a proper and timely written affirmation of change of address within the county under the provisions of G.S. 163-82.15 , in the first primary may vote in the second primary without having to refile that written affirmation if the voter is otherwise qualified to vote in the second primary. Subject to this provision for registration, the second primary shall be held under the laws, rules, and regulations provided for the first primary. Subject to G.S. 163-82.6 and G.S. 163-82.6 A, persons who register to vote after the day of the first primary shall be entitled to vote in the second primary. The second primary is a continuation of the first primary and any voter who files a proper and timely written affirmation of change of address within the county under the provisions of G.S. 163-82.15 , in the first primary may vote in the second primary without having to refile that written affirmation if the voter is otherwise qualified to vote in the second primary. Notwithstanding G.S. 163-82.17 , no person shall be permitted to change party affiliation or unaffiliated status between the date of a primary and a second primary. Subject to this provision for registration, the second primary shall be held under the laws, rules, and regulations provided for the first primary. There shall be no registration of voters between the dates of the first and second primaries. Persons whose qualifications to register and vote mature after the day of the first primary and before the day of the second primary may register on the day of the second primary and, when thus registered, shall be entitled to vote in the second primary. The second primary is a continuation of the first primary and any voter who files a proper and timely written affirmation of change of address within the county under the provisions of G.S. 163-82.15 , in the first primary may vote in the second primary without having to refile that written affirmation if the voter is otherwise qualified to vote in the second primary. Subject to this provision for registration, the second primary shall be held under the laws, rules, and regulations provided for the first primary. History (1915, c. 101, s. 24; 1917, c. 179, s. 2; c. 218; C.S., s. 6045; 1927, c. 260, s. 23; 1931, c. 254, s. 17; 1959, c. 1055; 1961, c. 383; 1966, Ex. Sess., c. 5, s. 13; 1967, c. 775, s. 1; 1969, c. 44, s. 85; 1973, c. 47, s. 2; c. 793, ss. 43, 44; 1975, c. 844, s. 3; 1977, c. 265, s. 9; 1981, c. 645, ss. 1, 2; 1989, c. 549; 1995, c. 243, s. 1; 1996, 2nd Ex. Sess., c. 9, s. 10; 1999-424, s. 7(e); 2001-319, s. 11; 2001-403, s. 5; 2002-158, s. 12; 2003-278, s. 10(d); 2006-192, s. 2; 2011-182, s. 4; 2016-125, 4th Ex. Sess., s. 21(d); 2017-3, s. 8; 2017-6, s. 3; 2017-214, s. 3; 2018-146, s. 3.1(a), (b); 2021-56, s. 1.5(a).) Subsection (e) Set Out Three Times. - The first version of subsection (e) set out above is effective until March 9, 2022. The second version of subsection (e) set out above is effective March 9, 2022 until June 1, 2022. The third version of subsection (e) set out above is effective June 1, 2022. Local Modification. - Lenoir: 1989, c. 291, s. 7(a); Montgomery: 2004-59, s. 11 (effective January 1, 2006); Pamlico: 1987 (Reg. Sess., 1988), c. 939, s. 5; Richmond: 1989, c. 88, s. 1.1; city of Albemarle: 1987 (Reg. Sess., 1988), c. 881, s. 5; Vance County Board of Education: 1987 (Reg. Sess., 1988), c. 974, ss. 3, 4. Editor's Note. - This section was recodified as now former G.S. 163A-984 by Session Laws 2017-6, s. 3. Former G.S. 163A-984 was then re-recodified as this section by Session Laws 2018-146, s. 3.1(a), effective January 31, 2019. The historical citation from the former section has been added to this section as re-recodified. Session Laws 1996, Second Extra Session, c. 9, s. 23, provides: "Part 1 of this act becomes effective only if Parts 1 and 2 of this act are both effective under section 5 of the Voting Rights Act of 1965." Preclearance was received from the U.S. Department of Justice by letter dated October 1, 1996. Session Laws 2002-158, s. 15, is a severability clause. Session Laws 2002-158, s. 15.1, states that nothing in this act obligates the General Assembly to appropriate funds to implement the provisions of the act now or in the future. Session Laws 2016-125, 4th Ex. Sess., s. 21(h), made the amendment to subdivision (c)(1) by Session Laws 2016-125, 4th Ex. Sess., s. 21(d), effective January 1, 2018, and applicable to primaries and elections held on or after that date. Session Laws 2016-125, s. 25, 4th Ex Sess., is a severability clause. Session Laws 2017-214, s. 5, made the amendment to subsection (a) by Session Laws 2017-214, s. 3, effective January 1, 2018, and applicable to all primaries and elections held on or after that date. Session Laws 2018-146, s. 3.1(b), effective January 31, 2019, repealed Session Laws 2017-6, s. 3, which had recodified this section. Session Laws 2021-56, s. 1.5(d), provides that the amendments to the second paragraph of subsection (e) of this section by Session Laws 2021-56, s. 1.5(a), are effective March 9, 2022, and expire on June 1, 2022. Session Laws 2021-56, s. 1.9, provides: "This act shall not apply to offices elected at large in any municipality where there is an election of municipal officers scheduled for 2021, where less than the entire jurisdiction is eligible to vote for candidates for one or more offices on the 2021, and that municipality has notified the county board of elections at least five business days prior to the opening of the 2021 filing period as provided in Article 23 or 24 of Chapter 163 of the General Statutes for the method of election for that municipality. If the county board of elections is so notified, the county board of elections shall open the filing period for the offices elected at large only for that municipality and conduct the election in 2021 in accordance with that municipality's charter and Chapter 163 of the General Statutes." Effect of Amendments. - Session Laws 2003-278, s. 10(d), effective January 1, 2004, in the first sentence of subdivision (c)(1), deleted "or by telegram" following "request for a second primary in writing," and substituted "ninth day" for "seventh day"; and in subdivision (c)(2), deleted "or by telegram" following "request for a second primary in writing," and substituted "ninth day" for "seventh day." Session Laws 2006-192, s. 2, effective January 1, 2007, and applicable to all primaries and elections conducted on or after January 1, 2007, in subsection (e), substituted "seven" for "four" in the first paragraph, and, in the second paragraph, substituted "written affirmation" for "affidavit", substituted "change of address within the county" for "transfer of precinct,", substituted "in" for "before", and substituted "that written affirmation" for "the affidavit of transfer". Session Laws 2011-182, s. 4, effective January 1, 2012, in subsection (e), in the first paragraph, in the second sentence, substituted "shall order that it be held 10 weeks after the first primary if any of the offices for which a second primary is required are for a candidate for the office of United States Senate or member of the United States House of Representatives" for "shall order that it be held seven weeks after the first primary," and added the last sentence, and in the last paragraph, substituted "the voter" for "he" in the second sentence. Session Laws 2016-125, 4th Ex. Sess., s. 21(d), effective January 1, 2018, in subdivision (c)(1), substituted "the candidate" for "him" twice in the last sentence of the introductory language, and added "Justices of the Supreme Court, Judges of the Court of Appeals, or" in the fourth candidate listed following the introductory language. For effective date and applicability, see editor's note. Session Laws 2017-3, s. 8, effective with respect to primaries and elections held on or after January 1, 2018, substituted "Justices, Judges, or District Attorneys of the General Court of Justice," for "Justices of the Supreme Court, Judges of the Court of Appeals, or District Attorneys of the General Court of Justice" in the list following the introductory language in subdivision (c)(1). Session Laws 2017-214, s. 3, substituted "thirty percent (30%)" for "forty percent (40%)" in subdivisions (a)(1) and (a)(2). For effective date and applicability, see editor's note. Session Laws 2021-56, s. 1.5(a), in the second paragraph of subsection (e), deleted the former first sentence, which read: "There shall be no registration of voters between the dates of the first and second primaries.", rewrote the former second sentence as the present first sentence, and added the next-to-last sentence. For effective date and expiration, see editor's note. Legal Periodicals. - For note, "The Primary Runoff: Racism's Reprieve?," see 65 N.C.L. Rev. 359 (1987). For article, "Think Small: The Future of Public Financing After Arizona Free Enterprise," see 47 Wake Forest L. Rev. 413 (2012).