North Carolina § 163-182 - 2. Initial counting of official ballots.

§ 163-182. 2. Initial counting of official ballots.

The initial counting of official ballots shall be conducted according to the following principles: Vote counting at the precinct shall occur immediately after the polls close and shall be continuous until completed. Vote counting at the precinct shall be conducted with the participation of precinct officials of all political parties then present. Vote counting at the county board of elections shall be conducted in the presence or under the supervision of board members of all political parties then present. Any member of the public wishing to witness the vote count at any level shall be allowed to do so. No witness shall interfere with the orderly counting of the official ballots. Witnesses shall not participate in the official counting of official ballots. If the county board of elections finds that an individual voting a provisional official ballot (i) was registered in the county as provided in 163-82.1, (ii) voted in the proper precinct under G.S. 163-55 and G.S. 163-57, and (iii) was otherwise eligible to vote, the provisional official ballots shall be counted by the county board of elections before the canvass. Except as provided in G.S. 163-82.15(e), if the county board finds that an individual voting a provisional official ballot (i) did not vote in the proper precinct under G.S. 163-55 and G.S. 163-57, (ii) is not registered in the county as provided in G.S. 163-82.1, or (iii) is otherwise not eligible to vote, the ballot shall not be counted. If a voter was properly registered to vote in the election by the county board, no mistake of an election official in giving the voter a ballot or in failing to comply with G.S. 163-82.15 or G.S. 163-166.11 shall serve to prevent the counting of the vote on any ballot item the voter was eligible by registration and qualified by residency to vote. Precinct officials shall provide a preliminary report of the vote counting on election day to the county board of elections as quickly as possible. The preliminary report shall be unofficial, has no binding effect upon the official county canvass to follow, and shall include the number of provisional ballots cast in that precinct. In counties that use any certified mechanical or electronic voting system, subject to the sample counts under G.S. 163-182.1 and subdivision (2) of subsection (b) of this section, and of a hand-to-eye recount under G.S. 163-182.7 and G.S. 163-182.7A, a board of elections shall rely in its canvass on the mechanical or electronic count of the vote rather than the full hand-to-eye count of the paper ballots or records. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count or recount, the hand-to-eye count or recount shall control, except where paper ballots or records 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. The State Board of Elections shall promulgate rules for the initial counting of official ballots. All election officials shall be governed by those rules. In promulgating those rules, the State Board shall adhere to the following guidelines: For each voting system used, the rules shall specify the role of precinct officials and of the county board of elections in the initial counting of official ballots. 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 rules shall provide for a sample hand-to-eye count of the paper ballots of a sampling 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, and full counts of one or more one-stop early voting sites. 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. The sample count need not be done on election night. The rules shall provide for accurate unofficial reporting of the results from the precinct to the county board of elections with reasonable speed on the night of the election. The rules shall provide for the prompt and secure transmission of official ballots from the voting place to the county board of elections. Precinct officials shall provide a preliminary report of the vote counting to the county board of elections as quickly as possible. The preliminary report shall be unofficial and has no binding effect upon the official county canvass to follow. In counties that use any certified mechanical or electronic voting system, subject to the sample counts under G.S. 163-182.1 and subdivision (1a) of subsection (b) of this section, and of a hand-to-eye recount under G.S. 163-182.7 and G.S. 163-182.7A, a board of elections shall rely in its canvass on the mechanical or electronic count of the vote rather than the full hand-to-eye count of the paper ballots or records. In the event of a material discrepancy between the electronic or mechanical count and a hand-to-eye count or recount, the hand-to-eye count or recount shall control, except where paper ballots or records 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. (Effective until January 1, 2018) 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 rules shall provide for a sample hand-to-eye count of the paper ballots or paper records of a sampling 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, and full counts of one or more one-stop early voting sites. 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-toeye count, the hand-to-eye count shall control, except where paper ballots or records 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 (Effective January 1, 2018) 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 rules shall provide for a sample hand-to-eye count of the paper ballots of a sampling 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, and full counts of one or more one-stop early voting sites. 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. The sample count need not be done on election night. The initial counting of official ballots shall be conducted according to the following principles: The State Board of Elections shall promulgate rules for the initial counting of official ballots. All election officials shall be governed by those rules. In promulgating those rules, the State Board shall adhere to the following guidelines: The State Board shall direct the county boards of elections in the application of the principles and rules in individual circumstances. History (2001-398, s. 3; 2005-2, s. 5; 2005-323, s. 5(b); 2006-192, s. 7(b); 2006-264, s. 76(c); 2013-381, ss. 30.6, 49.4; 2014-111, s. 12(c); 2015-103, s. 6(b); 2017-6, s. 3; 2018-13, s. 3.11(b); 2018-146, s. 3.1(a), (b); 2020-17, s. 4.5(a).) Prior Law in Force. - In the case of NAACP v. McCrory, the defendants were enjoined from implementing certain portions of Session Laws 2013-381 and Session Laws 2015-103, relating to photo IDs and changes to early voting, same-day registration, out-of-precinct voting, and preregistration, and the pertinent statutory provisions in effect prior to those amendments were declared to be in full force (Case 1:13-cv-00658-TDS-JEP Document 455 (M.D.N.C. 2016). The Revisor is informed that as a result, the version of this section that the State Board is actually enforcing is as follows: § 163-182.2. Initial counting of official ballots. (1) Vote counting at the precinct shall occur immediately after the polls close and shall be continuous until completed. (2) Vote counting at the precinct shall be conducted with the participation of precinct officials of all political parties then present. Vote counting at the county board of elections shall be conducted in the presence or under the supervision of board members of all political parties then present. (3) Any member of the public wishing to witness the vote count at any level shall be allowed to do so. No witness shall interfere with the orderly counting of the official ballots. Witnesses shall not participate in the official counting of official ballots. (4) Provisional official ballots shall be counted by the county board of elections before the canvass. If the county board finds that an individual voting a provisional official ballot is not eligible to vote in one or more ballot items on the official ballot, the board shall not count the official ballot in those ballot items, but shall count the official ballot in any ballot items for which the individual is eligible to vote. Eligibility shall be determined by whether the voter is registered in the county as provided in G.S. 163-82.1 and whether the voter is qualified by residency to vote in the election district as provided in G.S. 163-55 and G.S. 163-57 . If a voter was properly registered to vote in the election by the county board, no mistake of an election official in giving the voter a ballot or in failing to comply with G.S. 163-82.15 or G.S. 163-166.11 shall serve to prevent the counting of the vote on any ballot item the voter was eligible by registration and qualified by residency to vote. (1) For each voting system used, the rules shall specify the role of precinct officials and of the county board of elections in the initial counting of official ballots. (2) The rules shall provide for accurate unofficial reporting of the results from the precinct to the county board of elections with reasonable speed on the night of the election. (3) The rules shall provide for the prompt and secure transmission of official ballots from the voting place to the county board of elections. The State Board shall direct the county boards of elections in the application of the principles and rules in individual circumstances. Editor's Note. - This section was recodified as now former G.S. 163A-1169 by Session Laws 2017-6, s. 3. Former G.S. 163A-1169 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 2005-2, s. 1, provides: "The General Assembly makes the following findings: "(1) In 2003, the General Assembly enacted S.L. 2003-226, which contained a number of changes to the State's election laws, designed in part to implement provisions of the federal Help America Vote Act of 2002 (HAVA) in such a way as to avoid having separate laws for federal and State elections and otherwise to encourage and expand the exercise of the franchise. One such enactment was codified as G.S. 163-166.11 , which spells out procedures for the casting of provisional official ballots. A voter's eligibility to cast a provisional official ballot depends on being a registered voter in the jurisdiction in which the voter seeks to vote. The 'jurisdiction' in which a voter in North Carolina registers to vote is the county. This is the unmistakable meaning of G.S. 163-82.1 and has not heretofore been challenged or questioned. "(2) In S.L. 2003-226, the General Assembly expressly stated its intent to 'ensure that the State of North Carolina has a system for all elections that complies with the requirements for federal elections set forth in' HAVA. It was then and is now the intent of the General Assembly that the provisions of HAVA be broadly construed and that they be implemented in North Carolina in a manner to ensure a unified system of federal and State elections in compliance with HAVA. "(3) When it enacted G.S. 163-166.11 , it was then and is now the intent of the General Assembly that any individual who is a registered voter in a county but whose name does not appear on the official list of registered voters at the voting place at which that voter appears be allowed to cast a provisional official ballot. "(4) When it enacted G.S. 163-166.11 , it was then and is now the intent of the General Assembly that all provisional ballots be counted for all those ballot items for which a voter was eligible to vote. In enacting G.S. 163-166.11 in 2003, the General Assembly was fully mindful of and intended to reinforce the fact that prior statutory enactments in 2001 had already recognized the right of a voter to cast a provisional ballot and to have that ballot counted for all items for which that voter was eligible to vote. See G.S. 163-182.2(a)(4) . Even prior to 2003, the General Statutes recognized the right of a registered voter to cast a provisional ballot and to have that ballot counted for all those items for which the voter was duly qualified to vote. "(5) When it enacted G.S. 163-166.11 , it was then and is now the intent of the General Assembly that the State Board of Elections act in a manner that would result in a single system for federal and State elections, rather than one system for federal elections and another for State elections. In enacting G.S. 163-166.11 in 2003, the General Assembly was mindful of and intended to reinforce the fact that it had already provided in 2001 in G.S. 163-166.7(c)(6) that the State Board of Elections would adopt rules to ensure that voters 'not clearly eligible to vote in the precinct but who seek to vote there are given proper assistance in voting a provisional official ballot or guidance to another voting place where they are eligible to vote.' The possibility of out-of-precinct provisional voting was thus recognized by the General Assembly as early as 2001. "(6) The law regarding provisional ballots does not rest solely on G.S. 163-82.15(e) , which addresses the narrow circumstance of 'Unreported Move[s] to Another Precinct Within the County.' Though that statute mentions two ways in which precinct officials may process registrants, it is not exclusive. G.S. 163-82.15(e) is part of the statutory Article on voter registration, rather than on voting, and should be read in that context. It was enacted in 1994, before provisional voting was codified in North Carolina. The enactment of G.S. 163-166.7(c)(6) in 2001 is the authority giving the State Board of Elections the duty to apply the broader laws of provisional voting, including G.S. 163-166.11 . Any reading of G.S. 163-166.11 that would limit that statute's provisions to the narrower class of voting situations governed by the earlier enacted provisions of G.S. 163-82.15(e) would ignore the long-standing principle of statutory construction that statutes relating to the same subject matter should be reconciled in such a manner as to effect the scope and meaning of the later enactment and read in a manner that would tend most completely to secure the rights of all persons affected by the legislation. It was then and is now the intent of the General Assembly in enacting G.S. 163-166.11 to expand the exercise of the franchise, not to limit it or to restrict it by the terms of earlier and narrower enactments. "(7) The State Board of Elections and all county boards of elections were following the intent of the General Assembly when they administered G.S. 163-166.11 and the earlier enacted statutes in G.S. 163-182.2(a)(4) and G.S. 163-166.7(c)(6) to count in whole or in part ballots cast by registered voters in the county who voted outside their resident precincts in the July 20, 2004, Primary, the August 17, 2004, Second Primary, and the November 2, 2004, General Election. "(8) Several hundred thousand registered North Carolina voters cast ballots outside their resident precincts during the one-stop absentee balloting ('early voting') period pursuant to G.S. 163-227.2 prior to the General Election in November 2004, during the two primaries in 2004, and then on the date of the General Election in November 2004. There is no statutory basis upon which to distinguish out-of-precinct voting that occurred on the date of the General Election in November 2004 from out-of-precinct voting that occurred during the First and Second Primaries in 2004 or that occurred during the period of one-stop absentee ('early') voting prior to the General Election of 2004. "(9) The General Assembly takes note of the fact that of those registered voters who happened to vote provisional ballots outside their resident precincts on the day of the November 2004 General Election, a disproportionately high percentage were African-American. "(10) The General Assembly notes that in addition to provisional voting on the date of the General Election pursuant to G.S. 163-166.11 , the General Statutes abound with provisions that allow voters to cast votes outside their resident precincts: "a. Civilian absentee voting by mail, G.S. 163-226 . "b. Military and overseas citizens absentee voting, G.S. 163-245 . "c. One-stop absentee (early) voting, G.S. 163-227.2 . "d. Voting in a voting place on a lot adjacent to the precinct, G.S. 163-128 . "e. Temporarily voting in an adjacent precinct, G.S. 163-128 . "f. Voting in a precinct outside the voting place where no suitable facility exists inside it or adjacent to it, G.S. 163-130.1 . "g. Voting at a central location in the county by voters who no longer live in the precinct where their name is listed on registration lists, G.S. 163-82.15(e) . "All those provisions were enacted prior to G.S. 163-166.11 . Most were enacted decades before. As many as 1,000,000 people in North Carolina may have cast out-of-precinct votes using all out-of-precinct methods in 2004. "(11) It would be fundamentally unfair to discount the provisional official ballots cast by properly registered and duly qualified voters voting and acting in reliance on the statutes adopted by the General Assembly and administered by the State Board of Elections in accordance with its intent. Moreover, to subtract such ballots only from the count for the General Election of 2004 without also doing so for the First or Second Primaries of 2004 would create a bizarre result in which out-of-precinct provisional ballots are allowed to count for some elections but not others. The General Assembly did not and does not now intend to create such a system. "(12) Even if the State Board of Elections had misread the language and intent of the General Statutes concerning provisional voting, which it did not do, it has been the long-standing and hitherto unquestioned law of this State, confirmed by prior decisions of the North Carolina Supreme Court, that an innocent voter's ballot shall not be disqualified because of errors or omissions by elections officials. This fundamental principle was adopted by Justice Samuel J. Ervin Jr. in the case of Owens v. Chaplin, 228 N.C. 705 (1948) using the following language: 'We can conceive of no principle which permits the disfranchisement of innocent voters for the mistake, or even the willful misconduct, of election officials in performing the duty cast upon them. The object of elections is to ascertain the popular will, and not to thwart it. The object of election laws is to secure the rights of duly-qualified electors, and not to defeat them.' "See also Appeal of Judicial Review by Republican Candidates for Election in Clay County, 45 N.C. App. 556 (1980). "The General Assembly endorses and reaffirms this fundamental principle. "(13) It is the will of the people, as expressed through their representatives in the General Assembly, that the validity of the primaries and elections conducted in 2004 and certified by a county board of elections or the State Board of Elections, not be called into question by retroactively revisiting the propriety of provisional ballots cast by duly registered voters of a county. "(14) To avoid all doubt and remove any possible future question as to the General Assembly's plain intent with respect to the subject of provisional voting, and to avoid misinterpretation of any other statute, the General Assembly enacts Sections 2 through 5 of this 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 2005-323, s. 5(b), effective January 1, 2006, added subdivisions (a)(6) and (b)(1a). Session Laws 2006-192, s. 7(b), effective August 3, 2006, added the fourth and fifth sentences in subdivision (b)(1a). Session Laws 2006-264, s. 76(c), effective August 27, 2006, in subdivision (b)(1a), in the fourth sentence, inserted "one or more" twice and "mailed" preceding "absentee ballots", and added the last sentence. Session Laws 2013-381, s. 30.6, in subdivision (b)(1a), 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. 49.4, effective January 1, 2014, substituted "precinct" for "election district" in the third sentence of subdivision (a)(4). Session Laws 2014-111, s. 12(c), effective August 6, 2014, rewrote subdivision (a)(4). Session Laws 2020-17, s. 4.5(a), effective June 12, 2020, in subdivision (a)(5), added "on election day” in the first sentence, added "and shall include the number of provisional ballots cast in that precinct" at the end of the second sentence, and made a related punctuation change.