In the event that a county election official refuses to canvass and certify election results, North Carolina law has several built-in provisions to safeguard the process. The law is clear that this duty is ministerial. Most enforcement authority is placed in the hands of the State Board of Elections, who can remove County Board of Elections officials, can likely compel the production of certified abstracts, and can likely certify non-local election results on their own. In addition, judicial procedures can be invoked to protect against county officials who refuse to certify, such as a petition for a writ of mandamus or the threat of criminal liability.
In North Carolina, county certification is referred to in the code as the “authentication of the official election results” and takes place during the county canvass. N.C. Gen. Stat. § 163-182.5(a). In practice, it is accomplished via a majority vote of the County Board of Elections. See, e.g., “Minutes of Meeting (June 4, 2024).” The County Board of Elections must also start their meeting by 11 a.m. on the 10th day after the election and can only extend their meeting “for a reasonable time thereafter” if the initial counting has not been completed by election officials. N.C. Gen. Stat. § 163-182.5(b).
The Executive Director of the State Board of Elections has made it clear that the duty to “authenticate” or certify the election results is ministerial. **“**The county board is required by law to authenticate the election results at the conclusion of canvass in the form of an official abstract of the vote totals.” Numbered Memo 2023-04, 10/12/2023 at 26. There is no “legal basis for a county board member to withhold authentication of the election results…” unless there is a pending election protest that was filed before canvassing began that is concerning how the votes were counted or tabulated. Numbered Memo 2023-04, 10/12/2023 at 26. [1]
The Executive Director of the State Board of Elections also points to federal law to support this conclusion that certification is ministerial. Under the Voting Rights Act of 1965, “[n]o person acting under color of law shall fail or refuse to permit any person to vote who is entitled to vote … or willfully fail or refuse to tabulate, count, and report such person’s vote.” 52 U.S.C. § 10307(a) (emphasis added). Since certifying the canvass is the way that the county “reports the votes of their county’s voters” the State Board of Elections considers voting against certification a violation of this provision. Numbered Memo 2023-04, 10/12/2023 at 26.
Additionally, once the results are certified or authenticated during the canvass, the statute provides that County Boards of Elections “shall issue” certificates of election six days after they complete their respective canvasses. N.C. Gen. Stat. § 163-182.15(a). Therefore the duties of both certifying the election and issuing the certificates are ministerial duties.
However, in one instance where County Board of Elections members voted against certification (discussed in more detail below), the State Board of Elections noted that those members did so when there were “no irregularities … which would put in doubt an outcome as to that canvass.” In re Complaint of Bob Hall, State Bd. of Elections (March 30, 2023). This leaves open the possibility that if there were irregularities noted in the canvass that outnumbered the margin of victory in an election, that County Board of Elections members would have the ability to vote against certification.
North Carolina statute gives considerable authority to the State Board of Elections to compel performance from County Board of Elections members and to remove them from office. “The State Board shall require all reports from the county boards of elections and election officers as provided by law…”. N.C. Gen. Stat. § 163-22(c). While “reports” are not defined, this presumably includes the required abstract that the County Board of Elections sends to the State Board of Elections once the canvass is complete. Furthermore, the State Board “shall compel observance of the requirements of the election laws…” N.C. Gen. Stat. § 163-22(c). The State Board can act on complaints submitted to them. N.C. Gen. Stat. § 163-22(c). Ultimately, after giving notice and holding a hearing, the State Board of Elections has “the power to remove from office any member of a county board of elections for incompetency, neglect or failure to perform duties, fraud, or for any other satisfactory cause.” N.C. Gen. Stat. § 163-22(c).
How soon such a hearing could occur is unclear. North Carolina regulations state that when charges are filed by a member of the public against a member of a County Board of Elections, the State Board of Elections must send a notice, by mail, of the date and location of the hearing. 08 NCAC 03.0102(b). The person filing the charges must also provide the County Board member all affidavits that they will present to the State Board of Elections “at least three days before the time set for the hearing…” 08 NCAC 03.0103. So beyond whatever practical logistics are needed to hold the hearing, the administrative code requires at least three days plus whatever time it will take to notify the County Board of Elections member by mail of the hearing. Since the canvass must occur (with the exception of delays noted above) by November 15 of this year, and the federal deadline for states to certify their slate of electors is December 11 of this year, it would appear that County Board of Elections members could be removed in time for the state to meet this deadline. In the example described in the following paragraph, the vote against certification occurred on March 17, 2023, and the hearing for removal of the County Board of Elections members occurred on March 28, 2023, with the order for removal being issued two days after that. In re Complaint of Bob Hall, State Bd. of Elections (March 30, 2023).
The authority of the State Board of Elections to remove a County Board of Elections Member from office has been exercised recently in the context of refusal to certify an election. In 2023, the State Board of Elections removed two members of the Surry County Board of Elections for voting against certification of a special election. [2] In re Complaint of Bob Hall, State Bd. of Elections (March 30, 2023). Crucially, in its order, the State Board of Elections found that “there were no irregularities with the municipal election of March 2023 before the Surry County board which would put in doubt an outcome as to that canvass.” In re Complaint of Bob Hall, State Bd. of Elections (March 30, 2023). This implies that if the State Board had agreed with the commissioners that there were irregularities that made the outcome of the election uncertain, it might have been permissible for the County Board members to vote against certification. Nonetheless, in this instance where there was no proper justification for voting against certification, the State Board of Elections found that the actions of the commissioners “constitute impermissible collateral attacks upon binding court decisions and the final administrative orders and directives as have been issued by the State Board … that such actions are a violation of a county board member’s responsibility to comply with the law as it exists … [and] that such actions constitute a breach of a county board member’s duty, a violation of the oath of office for a county board member, and irregularities in the discharge of a county board member’s duties.” In re Complaint of Bob Hall, State Bd. of Elections (March 30, 2023).
A writ of mandamus is a court order generally used to compel a “lower court or a government officer to perform mandatory or purely ministerial duties correctly.” Black’s Law Dictionary (8th ed. 2004). The North Carolina Supreme Court has defined a writ of mandamus as “an order from a court of competent jurisdiction to a board, corporation, inferior court, officer or person commanding the performance of a specified official duty imposed by law.” Sutton v. Figgatt, 280 N.C. 89, 93, 185 S.E.2d 97, 99 (1971). As noted above, it appears that North Carolina holds canvassing and certification to be a ministerial, mandatory duty, so a court could issue a writ compelling a Board of Elections to fulfill its duty. However, it does not appear that a court could consider issuing such a writ as a matter of first resort. The Supreme Court states, “It is an extraordinary remedy which the court will grant only in case of necessity.” Sutton v. Figgatt, 280 N.C. 89, 93, 185 S.E.2d 97, 99 (1971). Since there are other ways to compel performance by a County Board of Elections member, a writ might not be necessary in a situation where the State Board of Elections has not yet intervened. Furthermore, “In a case involving the exercise of discretion, mandamus lies to compel action by a public official but not to dictate his decision unless there has been a clear abuse of discretion.” Sutton v. Figgatt, 280 N.C. 89, 93, 185 S.E.2d 97, 99 (1971) (internal citations omitted). In a situation where there was some actual dispute that involved decision-making to determine who the winner of an election was, a court could not force a County Board of Elections to certify in favor of a particular candidate.
In 2019, a candidate petitioned the Wake County Superior Court for a writ of mandamus to compel the State Board of Elections to certify the race in his favor. The race was under protest at the time and the State Board of Elections was investigating the protest. The court refused to grant a writ of mandamus stating “Certification is not appropriate until the investigation into the protest is concluded by final decision … it would be highly unusual for this court to step in.” “Judge Refuses to Certify.”
If a County Board of Elections member votes against certification, they could be charged with a misdemeanor or felony under North Carolina election law. It is a misdemeanor to fail as a member of “any board of elections to prepare the books, ballots, and return blanks which it is the person's duty under the law to prepare, or to distribute the same as required by law, or to perform any other duty imposed upon that person within the time and in the manner required by law.” N.C. Gen. Stat. § 163-274(a)(1). Since canvassing and certifying the election is a duty imposed (with a deadline) on members of the County Boards of Elections, refusing to certify an election and send the necessary abstract could be a misdemeanor under this statute. Furthermore, it is a misdemeanor for “any chair of a county board of elections or other returning officer to fail or neglect, willfully or of malice, to perform any duty, act, matter or thing required or directed in the time, manner and form in which said duty, matter or thing is required to be performed in relation to any primary, general or special election and the returns thereof.” N.C. Gen. Stat. § 163-274(a)(11). This adds additional culpability for the Chair of the County Board of Elections to not perform their duty of canvassing and certifying election returns on time.
It is also a felony for a member of a County Board of Elections to “do any fraudulent act or knowingly and fraudulently omit to do any act or make any report legally required of that person.” N.C. Gen. Stat. § 163-275(3). Refusing to do the legal act of certifying an election, knowing that it is a requirement of their duties of office, could make a Board of Elections member liable for a felony. Additionally, it is a felony for “any election official or other officer … to make any erasure, alteration, or conceal or destroy any … record, return or process with intent to commit a fraud.” N.C. Gen. Stat. § 163-275(9). Refusing to certify an election, with the requisite intent, could be seen as making an erasure, or concealment of the returns and process of the election.