GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1995

H	1 

HOUSE BILL 840

Short Title:  Candidates' Qualifications.	(Public)

─────────────────────────────────────── 
Sponsors: Representatives Adams; W. Brown, Cunningham, Fitch, H. Hunter, Luebke, Michaux, Oldham, Sharpe, Shaw, and Wright.

─────────────────────────────────────── 
Referred to:  Judiciary II.

─────────────────────────────────────── 

April 12, 1995

A BILL TO BE ENTITLED
AN ACT TO REQUIRE CANDIDATES FOR ELECTIVE OFFICE TO CERTIFY THAT THEY MEET THE QUALIFICATIONS FOR OFFICE AND TO ALLOW CHALLENGES TO CANDIDATES' QUALIFICATIONS.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 163-106 is amended by adding a new subsection to read:
"( a1)	In order to be accepted, attached to the notice of candidacy under subsection (a) of this section shall be an affidavit, signed by the candidate, listing the place of residence of the candidate, including a street address."
Sec. 2.  Article 10 of Chapter 163 of the General Statutes is amended by adding a new section to read:
"§ 163-114.1.  Place of residency.
In order to be accepted, attached to the certification of the name of a candidate under G.S. 163-114 shall be an affidavit, signed by the candidate, listing the place of residence of the candidate, including a street address."
Sec. 3.  G.S. 163-122 is amended by adding the following new subsection:
"( c)	In order to be accepted, the petition must have attached to it an affidavit, signed by the candidate, listing the place of residence of the candidate, including a street address."
Sec. 4.  Article 9 of Chapter 163 of the General Statutes is amended by adding a new section to read:
"§ 163-98.1.  Place of residency.
In order to be accepted, attached to the certification of the name of a candidate under G.S. 163-98 shall be an affidavit, signed by the candidate, listing the place of residence of the candidate, including a street address."
Sec. 5.  G.S. 163-294.2 is amended by adding a new subsection to read:
"( a1)	In order to be accepted, attached to the notice of candidacy under subsection (a) of this section shall be an affidavit, signed by the candidate, listing the place of residence of the candidate, including a street address."
Sec. 6.  Chapter 163 of the General Statutes is amended by adding a new Article to read:
"ARTICLE 8A.
"Challenge to candidate.
"§ 163-92.  Time for challenge other than on day of primary or election.
The right of any person to be a candidate shall be subject to objection and challenge.  This Article does not apply to candidates for United States Senate or member of the United States House of Representatives.
"§ 163-92.1.  Challenge procedure.
(a)	Any registered voter who is eligible to vote for an office may challenge the right of any person to appear on the ballot as a candidate of any party or as an unaffiliated candidate for that office.  No such challenge may be made later than 10 days after deadline for filing notices of candidacy under G.S. 163-106 for the primary if the challenge is to a candidate who has filed a notice of candidacy, and no such challenge may be made later than 80 days prior to the general or special election if the person becomes a candidate in that general or special election under G.S. 163-114, 163-122, 163-294.2 or Article 9 of Chapter 163 of the General Statutes except that a challenge as to the residency of the candidate may be made up until four days before the primary in the case of a contested primary and up until four days before the general election.
(b)	Each challenge shall be made separately, in writing, under oath and on forms prescribed by the State Board of Elections, and shall specify the reasons why the challenged candidate will not be eligible to hold office on the date that candidate's term commences.  The challenge shall be filed with the:
(1)	Board of elections conducting the elections for a municipality in the case of a municipal election;
(2)	State Board of Elections in the case of any:
a.	Judicial candidate;
b.	Statewide candidate;
c.	Candidate for member of either house of the General Assembly; and
(3)	County board of elections conducting the election in the case of any other office.
The challenge shall be signed by the challenger and shall set forth the challenger's address.
(c)	The challenge may be made only for one or more of the following reasons:
(1)	That the person is not registered to vote at a location that will allow the person to vote for the office for which the person is a candidate; or
(2)	That the candidate is not eligible under the Constitution on account of residency, citizenship, conviction of a felony, or age to hold the office for which that person is a candidate.  Any calculation of age or durational residency shall be made as of the date the term is to commence.
(d)	When a challenge is made, the board of elections having jurisdiction under this Article shall schedule a preliminary hearing on the challenge, and shall take such testimony under oath and receive such other evidence proffered by the challenger as may be offered.  If the challenger presents evidence and if the board finds that probable cause exists that the person challenged is not qualified to vote, then the board shall schedule a hearing on the challenge.
(e)	The presentation of a letter mailed by returnable first-class mail to the voter at the address listed on the voter registration card and returned because the person does not live at the address shall constitute prima facie evidence that the person does not reside at that address.
"§ 163-92.2.  Hearing on challenge.
(a)	A challenge made under this Article shall be heard and decided at least 60 days before the date of the next primary or election.
(b)	At least 10 days prior to the hearing the board of elections shall mail by first-class mail, a written notice of the challenge to the challenged candidate to the address of the voter listed on the notice of candidacy, or in the case of a candidate nominated by petition, party convention, or party executive committee, to the address on the petition or notice of nomination.  The notice shall state succinctly the grounds asserted, and shall state the time and place of the hearing. A copy of the notice shall be sent to the person making the challenge and to the chairman of each political party in the State eligible to nominate candidates under this Chapter.
(c)	At the time and place set for the hearing, the board of elections shall explain to the challenged candidate the qualifications for candidacy for that office. The board chairman, or in the chairman's absence the board secretary, shall then administer the following oath to the challenged candidate:
'You swear (or affirm) that the statements and information you shall give in this hearing with respect to your identity and qualifications to be a candidate shall be the truth, the whole truth, and nothing but the truth, so help you, God.'
After swearing the challenged candidate, the board shall examine the candidate as to his qualifications to be a candidate. If the challenged candidate insists that he is qualified, the board shall tender to the candidate the following oath or affirmation:
'You do solemnly swear (or affirm) that you are qualified to hold the office for which you are a candidate, so help you, God.'
If the challenged candidate refuses to take the tendered oath, or submit to the board the affidavit required by subsection (d), below, the challenge shall be sustained. If the challenged candidate takes the tendered oath, the board may, nevertheless, sustain the challenge if it finds the challenged candidate is not a legal voter.
The board, in conducting hearings on challenges, shall have authority to subpoena any witnesses it may deem appropriate, and administer the necessary oaths or affirmations to all witnesses brought before it to testify to the qualifications of the persons challenged.
(d)	The challenged candidate shall appear in person at the challenge hearing. If the candidate is unable to appear in person, the candidate may be represented by another person and must tender to the county board of elections an affidavit that the candidate is qualified to hold the office.
"§ 163-92.3.  Burden of proof.
(a)	Challenges shall not be made indiscriminately and may only be made if the challenger knows, suspects, or reasonably believes such a person not to be qualified and entitled to vote.
(b)	The burden of proof at the hearing shall be on the candidate to prove that the candidate is qualified to hold the office.
"§ 163-92.4.  Action when challenge sustained, overruled, or dismissed.
(a)	When any challenge is sustained the board shall order the candidate's name removed from the ballot, and:
(1)	If the candidate was nominated by a party, the party may name a replacement candidate as provided by G.S. 163-114, whose name shall either appear on the ballot, or for whom votes for the removed candidate shall be counted, depending on whether the ballots can be reprinted or not; except if the challenge was as to residency, the party may not name a replacement candidate;
(2)	If the candidate is a candidate in a primary which has not yet been held, and the disqualification would have resulted in no primary being held if the person had not been a candidate, then the primary election shall not be held and the appropriate board of elections shall declare the nominee;
(3)	If the candidate is removed from the ballot, but it is too late to reprint the ballots, then no votes for that candidate shall be counted for any purpose.
(b)	A decision by a county board of elections on any challenge made under the provisions of this Article shall be appealable to the superior court of the county in which the offices of that board are located within 10 days. A decision by the State Board of Elections on any challenge made under the provisions of this Article shall be appealable to the Superior Court of Wake County within 10 days. Only a political party entitled to nominate candidates under this Chapter, the person against whom a challenge is sustained, and the person who made a challenge which is overruled shall have standing to file an appeal.
"§ 163-92.5.  Making false affidavit perjury.
Any person who shall knowingly make any false affidavit or shall knowingly swear or affirm falsely to any matter or thing required by the terms of this Article to be sworn or affirmed shall be guilty of a Class I felony.
"§ 163-92.6.  Applicability to general election for member of the General Assembly.
If any court of competent jurisdiction holds that the provisions of this Article cannot apply to the election for members of each house of the General Assembly, such action does not invalidate the remainder of this Article."
Sec. 7.  This act becomes effective with respect to elections held on or after January 1, 1996.