AN ACT to provide procedures for resolving election contests for members of the general assembly and council of state.

Whereas, Article II, Section 20 of the Constitution provides that each house shall be the judge of the qualifications and elections of its members; and
Whereas, the current statutory procedures for handling contested legislative elections were enacted in 1796, amended slightly in 1893, and are antiquated; and
Whereas, Article VI, Section 5 of the Constitution provides that a contested election for Governor, Lieutenant Governor, or other Council of State member shall be determined by joint ballot of both houses of the General Assembly in the manner prescribed by law; and
Whereas, the constitutional provision on contested executive branch elections was originally enacted in 1835, with the statutory implementing language enacted in 1836; and
Whereas, at the time of their repeal in 1971, those statutory procedures merely referred to the antiquated procedure for contested legislative elections; and
Whereas, it is necessary to revise the antiquated legislative election contest procedure and enact an executive election contest procedure as required by the Constitution; Now, therefore,

The General Assembly of North Carolina enacts:

SECTION 1.  G.S. 120‑10 and G.S. 120‑11 are repealed.
SECTION 2.  Article 3 of Chapter 120 is amended by adding the following new sections to read:
"§ 120‑10.1.  Contesting a seat.Except as otherwise provided by rules of the house, a contest of the qualifications as a candidate or election of a member of the House of Representatives or the Senate under Article II, Section 20 of the Constitution shall be conducted in accordance with the provisions of this Article.
"§ 120‑10.2.  Definitions.
As used in this Article, the following terms mean:
(1)	Clerk. – The Principal Clerk of the house in which the election of the seat is being contested.
(2)	Committee. – The Committee on Rules of the appropriate house unless, by rule, the house has designated another committee to hear contests.
(3)	Contest. – A challenge to the apparent election of a member of the General Assembly or a request to determine an undecided election to a seat of the General Assembly in accordance with the provisions of this Article.
(4)	Contestant. – An unsuccessful candidate in an election to which this Article applies who initiates a contest.
(5)	Contestee. – A candidate in an election to which this Article applies who is not a contestant.
(6)	Notice of intent. – The notice required to initiate a contest in accordance with the provisions of this Article.
(7)	Unsuccessful candidate. – A candidate for an elective office to which this Article applies who has not been issued a certificate of election.
"§ 120‑10.3.  Initiating a contest.
(a)	Who May Initiate. – A contest may be initiated only by a contestant by the filing of a written notice of the intent to petition for a contest in accordance with this section. 
(b)	When May Initiate. – The notice of intent may be filed no earlier than the date provided in G.S. 163‑182.5 for the canvass by the board of elections with jurisdiction for the office under G.S. 163‑182.4. The notice of intent must be filed no later than the latter of: (i) 10 days after a certificate of election has been issued, or (ii) 10 days after the conclusion of the election protest procedure under Article 15A of Chapter 163 of the General Statutes, but in no event may a contestant initiate a contest later than 30 days after the convening of a regular or special session of the General Assembly next after the election.
(c)	Content of Notice. – A notice of intent shall state the grounds for the contest. The grounds shall be either or both of the following:
(1)	Objections to the eligibility or qualifications of the contestee as a candidate in the election based on specific allegations.
(2)	Objections to the conduct or results of the election accompanied by specific allegations that if proven true would have a probable impact on the outcome of the election.
The notice of intent shall also state that a contestee shall file an answer to the notice of intent in accordance with G.S. 120‑10.4. The notice of intent shall be signed by the contestant and shall be verified in accordance with Rule 11(b) of the Rules of Civil Procedure.
"§ 120‑10.4.  Answering a notice of intent.
Within 10 days after service of the notice of intent on a contestee, a contestee shall file a written answer with the clerk. The contestee's answer shall admit or deny the allegations on which the contestant relies, or state that the contestee has no knowledge or information concerning an allegation which shall be deemed denial, and state any other defenses, in law or fact, on which the contestee relies and any different or additional issues the contestee wants considered. The answer shall be signed by the contestee and shall be verified in accordance with Rule 11(b) of the Rules of Civil Procedure. The failure to file an answer shall be deemed to be a general denial of the allegations.
"§ 120‑10.5.  Filings and service.
The notice of intent to contest shall be filed by the contestant with the clerk and copies thereof served by the contestant on the contestee as provided under Rule 4(j)(1) of the Rules of Civil Procedure. Proof of service shall be filed with the clerk in accordance with G.S. 1‑75.10. The answer, petition, and any reply and copies thereof shall be filed with the clerk, and copies shall be served on the opposing party or the opposing party's counsel, if any, in the manner prescribed by Rule 5 of the Rules of Civil Procedure.
"§ 120‑10.6.  Discovery.
(a)	Depositions. – After service of the notice of intent, any party, after five days notice to the other party or parties may take depositions to sustain or invalidate the election. The contestant shall complete the taking of depositions to submit with the contestant's petition at any time within 20 days following the date of service of the notice of intent, and a contestee shall complete the taking of the contestee's depositions within 30 days following the date of service of the notice of intent on the contestee. By written stipulation of the parties, the testimony of any witness may be filed in the form of an affidavit by the witness within the same time limitations prescribed for the taking of depositions. Every deposition shall be taken before a person authorized by law to administer oaths, who shall certify and seal the deposition in the same manner as in judicial civil proceedings and file the same with the clerk.
(b)	Witnesses. – Subpoenas for witnesses in a contest shall be issued upon the application of either party or upon motion of the committee under the same procedures as under Article 5A of this Chapter and shall be enforced as provided under G.S. 120‑19.4. Witnesses shall be entitled to the same allowances and privileges, and be subject to the same penalties, as witnesses summoned to attend the courts. 
"§ 120‑10.7.  Petitions.
(a)	Filing. – A written petition shall be filed by the contestant with the clerk within 40 days following the date of service of the notice of intent. The petition shall set forth the facts and arguments supporting the case of the contestant. A contestee may file a written reply to the petition within five days following its service on the contestee.
(b)	Affidavits. – No affidavit may be made a part of, or filed in support of, a petition or reply thereto unless the affidavit has previously been filed with the clerk, pursuant to the written stipulation of the parties or their counsel, on or before the date established by G.S. 120‑10.6 for the completion of the taking of depositions by the proponent of the affidavit.
"§ 120‑10.8.  Referral to committee.
(a)	Referral. – The clerk shall refer the notice, answer, petition, reply, depositions, and affidavits to the committee, which documents shall constitute part of the record in the contest. The committee shall hear the contest and conduct such investigation as has been directed by resolution of its house. 
(b)	Procedure. – The committee shall set a schedule for taking depositions and receiving affidavits. The committee may consider the contestant's and contestee's recommendations for the procedural schedule. The committee may hold hearings and may compel the attendance of witnesses and the production of documents in its inquiry in accordance with Article 5A of this Chapter. The committee may accept the filing of briefs. The committee may order the recount of the ballots in the election and may seek and obtain the assistance of the State Board of Elections in the interpretation and counting of ballots.
(c)	Compel Discovery. – No witness in a contest shall be excused from discovering whether the witness voted in the election that is the subject of the contest or the witness's qualification to vote, except as to the witness's conviction for any offense which would disqualify the witness from voting. If the witness was not a qualified voter, the witness shall be compelled to discover for whom the witness voted; but any witness making such discovery shall not be subject to criminal or penal prosecution for having voted in the election.
(d)	Report. – The committee shall report its findings as to the law and the facts and make recommendations to the house for its action.
"§ 120‑10.9.  Basis for decision.
(a)	Eligibility and Qualification. – If the contest is as to the eligibility or qualifications of the contestee, the house shall determine if the contestee is eligible and qualified. If it determines that the contestee is not eligible or not qualified, it shall order a new election.
(b)	Conduct or Results of Election. – If the contest is as to the conduct or results of the election, the house shall determine which candidate received the highest number of votes. If it can determine which candidate received the highest number of votes, it shall seat that person as a member of the house. If it cannot determine which candidate received the highest number of votes, it may order a new election, or may order such other relief, as may be necessary and proper. If it determines that two or more candidates shall be equal and highest in votes, the provisions of G.S. 163‑182.8 shall apply.
"§ 120‑10.10.  Jurisdiction.
A contest of any election held at the same time and place as members of the General Assembly are elected shall be considered by the newly elected house. Any other contest shall be heard by the house sitting at the time of the election.
"§ 120‑10.11.  Judicial proceedings abated.
Notwithstanding any other provision of law, upon the initiation of a contest under this Article, any judicial proceedings involving either the contestant or the contestee encompassing the issues set forth in the notice of intent or an answer thereto concerning the election that is the subject of the contest shall abate. The clerk shall file a copy of the notice of intent and final determination with the court in any judicial proceeding pending prior to the filing of the notice of intent.
"§ 120‑10.12.  Determination house not reviewable.
The decision of one of the houses of the General Assembly in determining a contest pursuant to this Article may not be reviewed by the General Court of Justice.
"§ 120‑10.13.  Bad faith costs assessed.
The prevailing party in any contest may recover that party's costs incurred in conjunction with the contest in a civil action, upon a showing that the other party filed, pursued, maintained, or defended the contest in bad faith and without substantial justification.
"§ 120‑10.14.  Applicability.
This Article applies only to a general or special election and does not apply to a primary or any other part of the nominating process."
SECTION 3.(a)  Article 15A of Chapter 163 of the General Statutes is amended by adding a new section to read:
"§ 163‑182.13A. Contested elections for Council of State offices.
(a)	Application of Procedures. – A contested election for any elective office established by Article III of the Constitution shall be determined by joint ballot of both houses of the General Assembly under Article VI, Section 5 of the Constitution in accordance with the provisions of this section. Except as provided by this section, the provisions of Article 3 of Chapter 120 shall apply to contested elections under this section and shall govern standing, notice of intent to contest, answers, service of process, evidence, the petition, procedures, grounds, and relief except as provided in this section. All filings shall be with the Principal Clerk of the House of Representatives.
(b)	Notice of Intent. – Notice of the intent to contest the election under this section shall be filed with the Principal Clerk of the House of Representatives as if it were a contested election for the House of Representatives as prescribed in Article 3 of Chapter 120.
(c)	Jurisdiction. – When a contest arises out of the general election, the General Assembly elected at the same time shall hear and decide it. Any other contest shall be heard by the General Assembly sitting at the time of the election.
(d)	Committee. – A contest filed under this section shall initially be heard before a select committee consisting of five Senators appointed by the President Pro Tempore and five Representatives appointed by the Speaker of the House of Representatives. Not more than three members of the Senate appointed by the President Pro Tempore shall be members of the same political party. Not more than three members of the House of Representatives appointed by the Speaker shall be members of the same political party. That committee shall have the same power as a committee under Article 3 of Chapter 120 and may adopt supplemental rules as necessary to govern its proceedings. The committee shall report its findings as to the law and the facts and make recommendations to the General Assembly for its action.
(e)	Final Determination. – The final determination on the recommendations of the committee shall be made by the General Assembly, both houses sitting in joint session in the Hall of the House of Representatives, with the Speaker of the House of Representatives presiding. The vote shall be taken as provided by Article VI, Section 5 of the Constitution. In order to find for the contestant or contestee and order the contestant or contestee elected, the vote on the joint ballot must include the affirmative vote of a majority of the members of the General Assembly voting on the issue. The ballots shall be in writing and are subject to the provisions of G.S. 143‑318.13(b).
(f)	Basis for Decision. – 
(1)	If the contest is as to the eligibility or qualifications of the contestee, the General Assembly shall determine if the contestee is eligible and qualified. If it determines that the contestee is not eligible or not qualified, it shall order a new election.
(2)	 If the contest is as to the conduct or results of the election, the General Assembly shall determine which candidate received the highest number of votes. If it can determine which candidate received the highest number of votes, it shall declare that candidate to be elected. If it cannot determine which candidate received the highest number of votes, it may order a new election, or may order such other relief as may be necessary and proper. If it determines that two or more candidates shall be equal and highest in votes, the provisions of G.S. 147‑4 shall apply.
(g)	Final Determination. – A copy of the final determination of the General Assembly under this section shall be filed with the Secretary of State and with the State Board of Elections.
(h)	Copies. – The Principal Clerk of the House of Representatives shall make copies of any filings and transmit them to the Principal Clerk for the Senate.
(i)	Applicability. – This section applies only to a general or special election and does not apply to the primary or any other part of the nominating process.
(j)	Judicial Proceedings Abated. – Notwithstanding any other provision of law, upon the initiation of a contest under this Article, any judicial proceedings involving either the contestant or the contestee encompassing the issues set forth in the notice of intent or an answer thereto concerning the election that is the subject of the contest shall abate. The clerk shall file a copy of the notice of intent and final determination with the court in any judicial proceeding pending prior to the filing of the notice of intent.
(k)	General Assembly Determination Not Reviewable. – The decision of the General Assembly in determining the contest of the election pursuant to this section may not be reviewed by the General Court of Justice.
(l)	Definition. – As used in this section, 'contest' means a challenge to the apparent election for any elective office established by Article III of the Constitution or to request the decision of an undecided election to any elective office established by Article III of the Constitution, where the challenge or the request is filed in accordance with the timing and procedures of this section."
SECTION 3.(b)  For any election in 2004, notice of the intent to contest the election shall be filed within 10 days of this act becoming law, notwithstanding the deadlines established under subsection (a) of this section. Any notice, pleadings, or other papers, submitted by a person who could be eligible to be a contestant or contestee under this act, received by the House or Senate Principal Clerk prior to this act becoming law, shall be deemed to be a notice of intent under G.S. 120‑10.3 or G.S. 163‑182.13A, as applicable, and may be refiled within 10 days of this act becoming law, in the form and manner specified in G.S. 120‑10.3 or G.S. 163‑182.13A, as applicable, in order to comply with the provisions of this act.
SECTION 4.  G.S. 163‑182.14 reads as rewritten:
"§ 163‑182.14.  Appeal of a final decision to superior court; appeal to the General Assembly or a house thereof.
(a)	Final Decision. – A copy of the final decision of the State Board of Elections on an election protest shall be served on the parties personally or by certified mail. A decision to order a new election is considered a final decision for purposes of seeking review of the decision. 
(b)	Timing of Right of Appeal. – Except in the case of a general or special election to either house of the General Assembly or to an office established by Article III of the Constitution, an aggrieved party has the right to appeal the final decision to the Superior Court of Wake County within 10 days of the date of service.
After the decision by the State Board of Elections has been served on the parties, the certification of nomination or election or the results of the referendum shall issue pursuant to G.S. 163‑182.15 unless an appealing party obtains a stay of the certification from the Superior Court of Wake County within 10 days after the date of service. The court shall not issue a stay of certification unless the petitioner shows the court that the petitioner has appealed the decision of the State Board of Elections, that the petitioner is an aggrieved party, and that the petitioner is likely to prevail in the appeal.
(c)	Contests for General Assembly and Executive Branch Offices. – In the case of a general or special election to either house of the General Assembly or to an office established by Article III of the Constitution, an unsuccessful candidate has the right to appeal the final decision to the General Assembly in accordance with Article 3 of Chapter 120 and G.S. 163‑182.13A, as appropriate.
After the decision by the State Board of Elections has been served on the parties, the certification of nomination or election shall issue pursuant to G.S. 163‑182.15 unless a contest of the election is initiated pursuant to Article 3 of Chapter 120 or G.S. 163‑182.13A, as appropriate."
SECTION 5.  G.S. 163‑182.15 reads as rewritten:
"§ 163‑182.15.  Certificate of nomination or election, or certificate of the results of a referendum.
(a)	Issued by County Board of Elections. – In ballot items within the jurisdiction of the county board of elections, the county board shall issue a certificate of nomination or election, or a certificate of the results of the referendum, as appropriate. The certificate shall be issued by the county board six days after the completion of the canvass pursuant to G.S. 163‑182.5, unless there is an election protest pending. If there is an election protest, the certificate of nomination or election or the certificate of the result of the referendum shall be issued in one of the following ways, as appropriate:
(1)	The certificate shall be issued five days after the protest is dismissed or denied by the county board of elections, unless that decision has been appealed to the State Board of Elections.
(2)	The certificate shall be issued 10 days after the final decision of the State Board, unless the State Board has ordered a new election or the issuance of the certificate is stayed by the Superior Court of Wake County pursuant to G.S. 163‑182.14.
(3)	If the decision of the State Board has been appealed to the Superior Court of Wake County and the court has stayed the certification, the certificate shall be issued five days after the entry of a final order in the case in the Superior Court of Wake County, unless that court or an appellate court orders otherwise.
(4)	No certificate of election need be issued for any member of the General Assembly following a contest of the election pursuant to Article 3 of Chapter 120.
(b)	Issued by State Board of Elections. – In ballot items within the jurisdiction of the State Board of Elections, the State Board of Elections shall issue a certificate of nomination or election, or a certificate of the results of the referendum, as appropriate. The certificate shall be issued by the State Board six days after the completion of the canvass pursuant to G.S. 163‑182.5, unless there is an election protest pending. If there is an election protest, the certificate of nomination or election or the certificate of the result of the referendum shall be issued in one of the following ways, as appropriate:
(1)	The certificate shall be issued 10 days after the final decision of the State Board on the election protest, unless the State Board has ordered a new election or the issuance of the certificate is stayed by the Superior Court of Wake County pursuant to G.S. 163‑14.
(2)	If the decision of the State Board has been appealed to the Superior Court of Wake County and the court has stayed the certification, the certificate shall be issued five days after the entry of a final order in the case in the Superior Court of Wake County, unless that court or an appellate court orders otherwise.
(3)	The certificate shall be issued immediately upon the filing of a copy of the determination of the General Assembly with the State Board of Elections in contested elections involving any elective office established by Article III of the Constitution.
(4)	No certificate of election need be issued for any member of the General Assembly following a contest of the election pursuant to Article 3 of Chapter 120.
(c)	Copy to Secretary of State. – The State Board of Elections shall provide to the Secretary of State a copy of each certificate of nomination or election, or certificate of the results of a referendum, issued by it. The Secretary shall keep the certificates in a form readily accessible and useful to the public."
SECTION 6.  This act is effective when it becomes law.
In the General Assembly read three times and ratified this the 10th day of March, 2005.

	s/	 Charlie S. Dannelly
		 Deputy President Pro Tempore of the Senate

	s/	 James B. Black
	 Speaker of the House of Representatives

	s/	 Michael F. Easley
	 Governor

Approved 2:26 p.m. this 10th day of March, 2005