North Carolina § 163-182 - 1. Principles and rules for counting official ballots.

§ 163-182. 1. Principles and rules for counting official ballots.

General Principles That Shall Apply. - The following general principles shall apply in the counting of official ballots, whether the initial count or any recount: Only official ballots shall be counted. No official ballot shall be rejected because of technical errors in marking it, unless it is impossible to clearly determine the voter's choice. If it is impossible to clearly determine a voter's choice in a ballot item, the official ballot shall not be counted for that ballot item, but shall be counted in all other ballot items in which the voter's choice can be clearly determined. If an official ballot is marked in a ballot item with more choices than there are offices to be filled or propositions that may prevail, the official ballot shall not be counted for that ballot item, but shall be counted in all other ballot items in which there is no overvote and the voter's choice can be clearly determined. If an official ballot is rejected by a scanner or other counting machine, but human counters can clearly determine the voter's choice, the official ballot shall be counted by hand and eye. Write-in votes shall not be counted in party primaries or in referenda, but shall be counted in general elections if all of the following are true: The write-in vote is written by the voter or by a person authorized to assist the voter pursuant to G.S. 163-166.8. The write-in vote is not cast for a candidate who has failed to qualify under G.S. 163-123 as a write-in candidate. The voter's choice can be clearly determined. Procedures and Standards. - The State Board of Elections shall adopt uniform and nondiscriminatory procedures and standards for voting systems. The standards shall define what constitutes a vote and what will be counted as a vote for each category of voting system used in the State. The State Board shall adopt those procedures and standards at a meeting occurring not earlier than 15 days after the State Board gives notice of the meeting. The procedures and standards adopted shall apply to all elections occurring in the State and shall be subject to amendment or repeal by the State Board acting at any meeting where notice that the action has been proposed has been given at least 15 days before the meeting. These procedures and standards shall not be considered to be rules subject to Article 2A of Chapter 150B of the General Statutes. However, the State Board shall publish in the North Carolina Register the procedures and standards and any changes to them after adoption, with that publication noted as information helpful to the public under G.S. 150B-21.17(a)(6). Copies of those procedures and standards shall be made available to the public upon request or otherwise by the State Board. For optical scan and direct record electronic voting systems, and for any other voting systems in which ballots are counted other than on paper by hand and eye, those procedures and standards shall do both of the following: Provide for a sample hand-to-eye count of the paper ballots of a statewide ballot item in every county. The presidential ballot item shall be the subject of the sampling in a presidential election. If there is no statewide ballot item, the State Board shall provide a process for selecting district or local ballot items to adequately sample the electorate. The State Board shall approve in an open meeting the procedure for randomly selecting the sample precincts for each election. The random selection of precincts for any county shall be done publicly after the initial count of election returns for that county is publicly released or 24 hours after the polls close on election day, whichever is earlier. The sample chosen by the State Board shall be of one or more full precincts, full counts of mailed absentee ballots, full counts of one or more one-stop early voting sites, or a combination. The size of the sample of each category shall be chosen to produce a statistically significant result and shall be chosen after consultation with a statistician. The actual units shall be chosen at random. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count, the hand-to-eye count shall control, except where paper ballots have been lost or destroyed or where there is another reasonable basis to conclude that the hand-to-eye count is not the true count. If the discrepancy between the hand-to-eye count and the mechanical or electronic count is significant, a complete hand-to-eye count shall be conducted. Provide that if the voter selects votes for more than the number of candidates to be elected or proposals to be approved in a ballot item, the voting system shall do all the following: Notify the voter that the voter has selected more than the correct number of candidates or proposals in the ballot item. Notify the voter before the vote is accepted and counted of the effect of casting overvotes in the ballot item. Provide the voter with the opportunity to correct the official ballot before it is accepted and counted. History (2001-398, s. 3; 2003-226, s. 13; 2005-323, s. 5(a); 2006-192, s. 7(a); 2006-264, s. 76(b); 2013-381, ss. 30.5, 32.2; 2015-103, s. 6(b); 2017-6, s. 3; 2018-13, s. 3.11(b); 2018-146, s. 3.1(a), (b).) Editor's Note. - This section was recodified as now former G.S. 163A-1166 by Session Laws 2017-6, s. 3. Former G.S. 163A-1166 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 2003-226, s. 1, provides: "The purpose of this act is to ensure that the State of North Carolina has a system for all North Carolina elections that complies with the requirements for federal elections set forth in the federal Help America Vote Act of 2002, Public Law 107-252, 116 Stat. 1666 (2002), codified at 42 U.S.C. §§ 15481-15485. "The General Assembly finds that the education and training of election officials as required by G.S. 163-82.34 has met and continues to meet the mandate for the education and training of precinct officials and other election officials in section 254(a)(3) of the Help America Vote Act of 2002. The General Assembly further finds that the establishment, development, and continued operation of the statewide list maintenance program for voter registration set forth in G.S. 163-82.14 has met and continues to meet the mandates of section 303(a)(2) of the Help America Vote Act of 2002. "In certain other areas of the election statutes and other laws, the General Assembly finds that the statutes must be amended to comply with the Help America Vote Act." Session Laws 2013-381, s. 30.8, as amended by Session Laws 2015-103, s. 6(a), Session Laws 2018-13, s. 3.11(a), and Session Laws 2019-177, s. 10.1(a), provides: "Any direct record electronic (DRE) voting systems currently certified by the State Board of Elections and Ethics Enforcement which do not use paper ballots shall be decertified and shall not be used in any election held on or after December 1, 2019. Decertification of a DRE voting system that does not use paper ballots may not be appealed to the Superior Court of Wake County pursuant to G.S. 163A-1115(d)." Session Laws 2013-381, s. 30.9, as amended by Session Laws 2015-103, s. 6(b), Session Laws 2018-13, s. 3.11(b), and Session Laws 2019-177, s. 10.1(b), provides: "This Part becomes effective December 1, 2019, for counties that use direct record electronic voting machines." Session Laws 2013-381, s. 60.1, is a severability clause. 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 2019-239, s. 3(a), provides: "Notwithstanding Section 3.11 of S.L. 2018-13, the State Board of Elections (State Board) may authorize, upon such terms and conditions as the State Board deems appropriate, a county board of elections to use a direct record electronic (DRE) voting system in any election prior to July 1, 2020, provided the State Board determines the following conditions are satisfied: "(1) The county board of elections submits a hardship request to the State Board to use a DRE voting system in an election or elections prior to July 1, 2020, as specified in the request, and provides documentation that replacement of the machines prior to July 1, 2020, would create an undue hardship for the county. "(2) The county board of elections provides sufficient information for the State Board to conclude that the use of the DRE voting system will not jeopardize the security of the election or elections. "(3) The county board of elections has begun the process and time line for replacing the DRE voting system and provides documentation to the State Board regarding the time line for that process and specifically the time of testing as required by G.S. 163-165.9 ." Session Laws 2019-239, s. 5.12, provides: "Except for statutory changes or other provisions that clearly indicate an intention to have effects beyond the 2019-2021 fiscal biennium, the textual provisions of this Part apply only to funds appropriated for, and activities occurring during, the 2019-2021 fiscal biennium." Session Laws 2019-239, s. 5.14, is a severability clause. Effect of Amendments. - Session Laws 2003-226, s. 13, effective January 1, 2006, and applicable with respect to all primaries and elections held on or after that date, rewrote subsection (b). Session Laws 2005-323, s. 5(a), effective January 1, 2006, in subsection (b), divided the former first paragraph into the present first paragraph and present subdivision (2), redesignated former subdivisions (1) through (3) as present subdivisions a. through c., added subdivision (1), and rewrote the last sentence at the end of the introductory paragraph. Session Laws 2006-192, s. 7(a), effective August 3, 2006, added the fourth and fifth sentences in subdivision (b)(1). Session Laws 2006-264, s. 76(b), effective August 27, 2006, in the fourth (now seventh sentence) sentence of subdivision (b)(1), inserted "one or more", inserted "mailed", substituted "full counts of one or more" for "and full counts", and substituted "sites, or a combination" for "sites" at the end. Session Laws 2013-381, s. 30.5, in subdivision (b)(1), deleted "or paper records" following "paper ballots" in the first sentence, and "or records" following "paper ballots" in the ninth sentence. For effective date and applicability, see editor's note. Session Laws 2013-381, s. 32.2, effective January 1, 2014, repealed subdivision (a)(7).