Numbered Memo 2022-05: County Board Challenges to Ineligible Absentee and Early Voting Ballots
(Updated)

Updated on Dec. 15, 2023: Procedures for county boards and/or chief judges to challenge ineligible absentee-by-mail and early voting ballots.

Author: Karen Brinson Bell, Executive Director

[Author]1

This numbered memo provides procedures for county boards and/or chief judges to challenge ineligible absentee-by-mail and early voting ballots.

The guidance in this memo is intended for county board challenges only. It does not include guidance for members of the public seeking to file voter challenges.2 The procedures for county board challenges may not be used to circumvent the deadlines and other requirements for members of the public to challenge a voter’s ballot. County board challenges should be reserved for information that the county board learns regarding a voter’s eligibility based on the county board’s own, uniform review of records in its possession (e.g., official death records, official records of active felony sentences, jurisdictional boundary records, and information provided by the voter). County board-initiated challenges shall not be based on lists provided by outside groups or individuals. There is no guarantee that such lists were generated in a nondiscriminatory way; they may have been generated to accomplish a particular electoral outcome. County board-initiated challenges should never have the reality or appearance of being carried out at the request of individuals or groups with an interest in the outcome of the election.

Included in this numbered memo are the basic steps that county boards must follow, along with answers to frequently asked questions about specific situations that often arise. A sample challenge form and hearing notice are appended to this memo.

Except for the retrieval process prescribed for same-day registrants in G.S. § 163-82.6B(d),3 the only method to retrieve and discount the ballot of an absentee or early voting voter is through a timely and successful challenge.4 This memo overrules the “Disputed Ballots” section of Numbered Memo 2012-28, to the extent it suggests otherwise.

As outlined below, the first step for challenging an absentee ballot is to disapprove the absentee-by-mail application at an absentee meeting, followed by a challenge. However, if your board has already approved an absentee application and you determine that the ballot was ineligible, you will still need to follow the ballot challenge procedures below. If, after a challenge proceeding, the board determines that the ballot was properly cast, it shall reconsider and approve the application (if it was not already approved) and permit the ballot to be opened and counted.

For early voting ballots, the revisions to the statutes in Session Law 2023-140 (S.B. 747) no longer authorize county board adjudication of ballot applications after the early vote is cast. Instead, the voter signs the early voting application and it is treated the same as an authorization to vote (ATV) for election day voters — i.e., as a record of the voter’s check-in, not as a document the county board must later approve at a meeting. For early voting ballots, then, the only step to take is the ballot challenge.

As a reminder, the qualifications for all voters, including early and absentee voters, are judged as of Election Day.5


1 This memo is issued under the authority delegated by the State Board to the executive director pursuant to G.S. § 163-22(p).

2 See Voter Challenge Procedures Guide.

3 See Same-Day Registration: Numbered Memo 2023-05.

4 G.S. § 163-182.5(a) provides the county board of elections with the authority to “pass on the legality of disputed ballots,” including early voting ballots. G.S. § 163-89 provides the procedure for challenging absentee-by-mail ballots. See N.C. State Bd. of Elections, Order In the Matter of: Consideration of Certain Legal Questions Affecting the Authentication of the 2016 General Election, ¶ 7 (Nov. 28, 2016) [link no longer active] (“No county board may retrieve and discount a ballot cast by an unqualified voter unless a challenge was timely brought...or the State Board or a county board has found [pursuant to an election protest] that ineligible voters participated in numbers sufficient to change the outcome of the election.”).

5 G.S. §§ 163-55, -59.

Challenge Deadlines

Early Voting: A challenge to a voter’s ballot cast at an early voting site must be filed:

  1. By the county board by 5 p.m. on the fifth business day after the primary or general election;6 or
  2. By any chief judge, judge or assistant at an early voting site at the time the voter presents to vote at the early voting site.7

Absentee: A challenge to an absentee-by-mail ballot must be filed either:

  1. By the county board by 5 p.m. on the fifth business day after the primary or general election;8 or
  2. For UOCAVA ballots received after 7:30 p.m. on Election Day, the county board must file the challenge as far in advance of county canvass as possible and notify the voter by any means that are available to ensure the quickest notification.9

6 The authority for county board challenges of early voting ballots comes from the authority to pass on disputed ballots during the canvass pursuant to G.S. § 163-182.5(a), which does not set a deadline. The county board must, however, challenge a ballot in sufficient time for notice of a challenge hearing to be effectively delivered to a challenged voter, to comply with the requirements of due process. Accordingly, early voting challenges from the county board may not be filed after the fifth business day after the election, to ensure that the challenged voter receives notice of the challenge before the hearing at the county canvass meeting.

7 G.S. § 163-87 (S.L. 2023-140, sec. 13(a)). The chief judge, judge, or assistant is not required to be a resident of the voter’s precinct.

8 G.S. § 163-89(a) (S.L. 2023-140, sec. 15).

9 G.S. § 163-89(a) (SL 2023-140, sec. 15).

Procedures to Challenge an Absentee or Early Voting Ballot

  1. Disapproving the Ballot Application (Absentee Only)

    If a county board finds that a voter was not qualified to cast an absentee ballot or finds that the voter was not qualified to cast the ballot issued, at its absentee board meeting the county board must disapprove the absentee application and then file a ballot challenge.10

    Upon disapproving the application, the board must notify the voter stating the reason for disapproval by first-class mail addressed to the voter at that voter’s residence address and at the address shown in the application for the voter’s absentee ballot.11

    In some instances, the voter should be notified of the opportunity to vote a provisional ballot during early voting or on Election Day. This may occur if, for example, the voter was given an incorrect ballot style. In such cases, the county board should contact the voter via phone, if possible, immediately to notify them of this option.

  2. Challenging the Ballot (Early Voting and Absentee)
    1. Enter the Challenge. At the absentee board meeting on Election Day or at a subsequent board meeting, the board must enter an official challenge to the absentee or early voting ballot, using the challenge form and attaching any relevant evidence.
    2. Send Notice. The board shall hold a hearing on the challenge on the day set for the county canvass. The voter whose ballot is being challenged must be sent a notice in advance of the hearing (preferably via first-class mail), addressed to the voter’s residence address, mailing address (if different), and the address shown in the application for absentee ballots. The notice shall include the reason for the challenge and the date and time of the county canvass where the challenge will be heard.
    3. Conduct the Hearing. Follow the procedures in G.S. § 163-89(e) for examining the challenged voter (if they appear), administering oaths, and adjudicating the challenge. Recall that “[n]o challenge shall be sustained unless the challenge is substantiated by affirmative proof,” and “[i]n the absence of such proof, the presumption shall be that the voter is properly registered or affiliated.”12
    4. If Challenge Sustained. If the challenge to the ballot is sustained, the board shall direct county board staff to retrieve the challenged ballot, and carry out the following steps:
      1. The board shall complete a tally sheet to deduct the votes cast on the full ballot or shall deduct the votes cast for any ineligible contest. If the voter returned to vote a provisional ballot with an eligible ballot (because they are eligible but voted the wrong ballot at first), the original ballot should be deducted in full and the provisional should be counted. The board shall direct staff to add a manual edit to the proper precinct results in the proper reporting group to deduct any ineligible votes that were recorded on the results tally sheet.
      2. The staff shall then print two copies of the manual edit report and attach one report to the tally sheet and one report to the official canvass report.
      3. The challenged ballots and the accompanying tally sheet and a copy of the manual edit report shall then be sealed by the board and separated from the other retrievable ballots.
      4. The official canvass reports shall be provided to the State Board of Elections pursuant to G.S. § 163-182.6.
      5. For absentee ballots only: The county board shall prepare a supplemental absentee abstract in accordance with G.S. § 163-234(6) and provide it to the State Board of Elections.
    5. Challenge Overruled/Dismissed. If the challenge is overruled or dismissed, the board must reconsider and approve the absentee application, if applicable (and if it was not already approved), and proceed to count the ballot.

10 G.S. §§ 182.5(a), 163-227.2(d), 163-230.1(f).

11 G.S. § 163-227.2(d).

12 G.S. § 163-90.1(b)

Frequently Asked Questions

  1. A person who is serving a felony sentence registered to vote using same-day registration and cast a ballot during early voting. What should the CBE do?
    • Create an incident report.
    • Follow the process for Challenging the Ballot above and, if the challenge is sustained, deny the registration.13 If the challenge is not sustained, then the ballot should count and registration should be fully processed.
    • Report to Investigations at the State Board via a Help Desk ticket. Include the application number, incident report, and any other documentation.
  2. What if an existing registrant has been flagged for removal due to active felony status and has cast a ballot during early voting?
    • Create an incident report.
    • Follow the process for Challenging Absentee Ballot above.
    • Report to Investigations at the State Board via a Help Desk ticket. Include the application number, incident report, and any other documentation.
    • Follow the 30-Day Removal Notice procedure, pursuant to G.S. § 163-82.14(c)(3). The felony conviction list-maintenance process can be found in the SEIMS Help Files.
  3. What if a voter has submitted an absentee-by-mail ballot and votes at an early voting site in the same county?
    • The county board should first review both the early voting application and the absentee envelope, including comparing the voter’s signatures on the two voting documents, to determine if the same person voted twice. The board must determine by majority vote that there is sufficient evidence to challenge the voter for voting twice.
    • If the board determines by majority vote that the same voter voted twice, it shall determine which ballot should be counted and shall challenge the ballot that should not be counted. If only one ballot is retrievable, that ballot shall be retrieved. Again, it is up to the board, not staff, to make the determination of which vote should be counted. For the challenge, follow the Process for Disapproving the Ballot Application (if applicable) and Challenging the Ballot above.
    • Create an incident report.
    • Notify the Legal and Investigations teams at the State Board. Include the ballot application, absentee envelope, incident report, and any other documentation.
    • Is the process different if the absentee ballot was considered deficient pending cure and then was Approved-Cured?
      • The process is ultimately the same. The county board will count the legal vote and administratively retrieve the other ballot.
    • What if the absentee ballot was deficient pending cure and was not cured before canvass?
      • The county board will count the early voting ballot and not the absentee.
  4. What if a voter submitted a ballot in two different counties?
    • Create an incident report.
    • Work with the other county to determine where the voter is eligible to vote and which ballot must be retrieved. Work with the State Board as needed.
    • If the ballot cast in your county was ineligible, follow the Process for Disapproving the Ballot Application (if applicable) and Challenging the Ballot above.
    • Report to Investigations at the State Board via a Help Desk ticket. Include the application number, incident report, and any other documentation.
  5. What if an early voting official accidentally provided a ballot style to the voter that the voter was not eligible to vote, and the voter voted that ballot?
    • Create an incident report.
    • Follow the Process for Challenging the Ballot above.
    • If there is time, contact the voter and allow the voter to come in person to vote a provisional ballot with the correct ballot style. The board should count the provisional ballot if the voter is otherwise eligible to vote that ballot. If the voter does not return, count any contests on the regular ballot that the voter was eligible to vote in.
  6. What if a voter dies after voting absentee-by-mail or early voting but before Election Day?
    • Prior to taking any action, obtain official confirmation of the death. Permissible sources include the DHHS List Maintenance Reports, death certificate from the local register of deeds, or a written, signed notification from a near relative.
    • Follow the Process for Disapproving the Ballot Application (if applicable) and Challenging the Ballot above.
    • Remove the voter pursuant to G.S. 163-82.14(b).
  7. What if a voter same-day registers at an early voting site and the first voter card sent pursuant to G.S. § 163-82.7(c) is returned as undeliverable to the county board before the close of business on the business day before county canvass?

    The county board shall not register the applicant or send further verifications.14 The registrant’s ballot shall be retrieved and that ballot’s votes removed from the official count. The county board shall not issue a challenge.

    The county board shall carry out the following steps:

    • The board shall direct county board staff to retrieve the ballot.
    • The board shall complete a tally sheet to deduct the votes cast on the full ballot. The board shall direct staff to add a manual edit to the proper precinct results in the proper reporting group to deduct the ineligible votes that were recorded on the results tally sheet.
    • The staff shall then print two copies of the manual edit report and attach one report to the tally sheet and one report to the official canvass report.
    • The retrieved ballots and the accompanying tally sheet and a copy of the manual edit report shall then be sealed by the board and separated from the other ballots.
    • The official canvass reports shall be provided to the State Board pursuant to G.S. § 163-182.6
  8. What if a voter inserted their absentee-by-mail ballot into the tabulator at an early voting site?
    • Create an incident report.
    • Retrieve and secure the ballot.
    • Mark the absentee as SPOILED as it was returned without an application/ certificate and will need to be reissued.
    • Notify the voter and let them know they may complete the reissued ballot or vote at an early voting site or on Election Day.
    • Challenge the ballot.
    • Conduct a hearing and, if sustained, remove the vote totals of the challenged ballot at canvass.
  9. A voter submitted an absentee-by-mail and subsequently moved to a new county. The voter has contacted your county. What do they need to do?
    • If the voter moved less than 30 days prior to Election Day, they don’t need to do anything. They are still eligible to vote in your county and the ballot they submitted stands.
    • If they moved 30 or more days prior to Election Day, they are no longer eligible to vote in your county. However, a 2018 federal court order prohibits any voter challenges based on residence from being brought without individualized knowledge within 90 days of a federal election. The voter will need to submit a cancellation in your county, or the voter will need to register in the new county. Then you can challenge the ballot, notify the voter, and hear the challenge at canvass in order to deduct the vote totals.
    • If the voter submits a cancellation in your county, you should direct them to register and vote in their new county.
  10. What if a voter mails their ballot and votes on Election Day, and the mailed ballot is received by the county board timely but on Election Day?
    • Follow the Process for Disapproving the Application and Challenging the Absentee Ballot above.
    • It is critical to complete voter history as soon as possible in order to identify this issue and challenge the absentee-by-mail ballot.
  11. For primary elections: What if a registered voter affiliated with a political party can’t be found during check-in at early voting and uses same-day registration to re-register with a different party and vote that party’s ballot?
    • Process the voter registration application. If you have already “linked” the registrations, you will need to “unlink” the registration in order to be able to deny the new registration without removing the prior voter registration. Please put in a Help Desk ticket if you need assistance.
    • Follow the Process for Challenging the Ballot above.
    • Contact the voter and let the voter know that they can vote the correct ballot provisionally, which the board would consider during canvass.
    • If the challenge is sustained at canvass, the ineligible ballot should be retrieved and the vote counts deducted. This could result in a partial count if there is an eligible contest on the ineligible ballot (bond, nonpartisan board of education, etc.) and the voter has not returned to vote a provisional ballot.
  12. For primary elections: A voter is registered as Unaffiliated. What if the voter’s record can’t be found during check-in at early voting so the voter re-registers with a political party and votes that ballot?
    • Process the voter registration application. If you have already “linked” the registrations, you will need to “unlink” the registration to be able to deny the new registration without removing the prior voter registration. Please put in a Help Desk ticket if you need assistance.
    • The voter has received an eligible ballot based on their unaffiliated registration status so there is no need to challenge the ballot.
    • Check with the voter after the election to confirm whether they did want to change party affiliation, at which point you may process that change.

13 G.S. § 163-90.2(a).

14 G.S. § 163-82.6B(d) (SL 2023-140, sec. 10(a)).

[Download the PDF below for the Notice of Absentee Ballot Challenge attachment and G.S. § 163-89, outlining the procedures for challenging absentee ballots.]

↓ County Board Challenges to Ineligible Absentee and Early Voting Ballots: Numbered Memo 2022-05 (PDF)

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