In a North Carolina nonpartisan town or city election, can a candidate drop out after the filing deadline has passed and have their name taken off the ballot?
Plain-English summary
A Granville County Board of Elections lawyer asked the Attorney General a clean, practical question in 1983: a candidate in a nonpartisan municipal election wants to drop out after the filing deadline. Can the candidate's name be taken off the ballot?
The AG said yes, with a timing caveat tied to ballot printing.
G.S. 163-294.2(d) addressed the easy case: any candidate could withdraw before the filing deadline, with a refund of the filing fee. After the deadline, the statute was silent on whether a withdrawal could even happen.
G.S. 163-294.1(b), titled "Death of candidates or elected officers," set up a different procedure for the after-deadline case. If a candidate in a nonpartisan election died, became disqualified, or withdrew before election day, after the ballots had been printed, the board of elections had to decide whether there was enough time to reprint the ballots. If yes, reprint. If no, and the withdrawn candidate then received enough votes to be elected, the board declared the office vacant, to be filled as provided by law.
The AG drew a sensible inference from these two provisions. If the statutes contemplated reprinting ballots after a post-deadline withdrawal, then the same reasoning supported simply omitting the withdrawn candidate when the ballots had not been printed yet. The candidate's name should not appear on a ballot that does not yet exist. Once printed, the name had to stay (assuming insufficient reprinting time), but the candidate-no-longer-running was no longer a real choice; if elected, the seat would be vacated and filled by other process.
The opinion was narrow. It applied only to nonpartisan municipal plurality elections, the typical small-town format where voters select from a slate and the top vote-getters win.
Currency note
This opinion was issued in 1983. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here. Chapter 163 was recodified as Chapter 163A by the Bipartisan State Board of Elections legislation and then back to a unified Chapter 163 framework. The specific provisions discussed (G.S. 163-294.1 and G.S. 163-294.2) have been amended and renumbered multiple times; current municipal election withdrawal rules are now found in the modern equivalents in Chapter 163. Anyone facing a current withdrawal scenario should consult current Chapter 163, current State Board of Elections numbered memos, and any local board rules.
Background and statutory framework
North Carolina municipal elections fall into several methods. Most cities and towns use a nonpartisan plurality format; some larger municipalities use a nonpartisan election with a runoff if no candidate hits 50 percent; a few partisan municipal elections still exist. The 1983 question came from a Board of Elections handling the plurality format.
The filing-deadline rule (G.S. 163-294.2) was tidy on its face. A candidate filed a notice of candidacy and paid a filing fee, and could withdraw at any time before the deadline. After the deadline, the slate was set. The statute did not address post-deadline withdrawal because, in theory, by then candidates were committed.
But life is not tidy. Candidates die, take new jobs, get sick, decide to drop out for personal reasons. G.S. 163-294.1 was the statute responding to that reality. The "Death of candidates" title was misleading; the operative subsection covered death, disqualification, and withdrawal alike. The substantive rule was the ballot-reprint analysis: if you can reprint, reprint. If you can't and the withdrawn candidate wins, declare a vacancy.
The 1983 opinion bridged these two statutes. Before ballots are printed, omit. After ballots are printed, follow the (b) protocol. This is the practical workflow boards of elections actually used.
The opinion did not address several adjacent questions: whether a partisan candidate could withdraw post-deadline (different statutes apply to partisan races); whether a refund of the filing fee was available for a post-deadline withdrawal (the statute provided refund only for pre-deadline withdrawal, so presumably not); and whether the board had any discretion to refuse a withdrawal (the statute did not condition the right to withdraw on board approval).
The conclusion was a clean win for ballot accuracy. Voters should not see the name of a candidate who has formally withdrawn unless the printing logistics made omission impossible.
Common questions
Did the candidate get the filing fee back if they withdrew after the deadline?
The opinion did not directly say, but the statutory text gave the right to a refund only on pre-deadline withdrawal (G.S. 163-294.2(d)). Post-deadline withdrawal was a different procedural path with no refund provision.
What if the ballots were printed but absentee voting had not yet started?
The opinion focused on whether reprinting time existed. If absentee voting had not started, reprinting was probably still feasible. The board would assess on the facts.
What if absentee voting had already begun?
Reprinting is much harder once absentee ballots are out. The board would have to weigh costs, logistics, statutory deadlines, and the integrity of votes already cast. In that scenario, the (b) vacancy-fallback would likely apply.
What if a candidate withdrew under duress?
The opinion did not address that. A withdrawal under duress would presumably not be a valid withdrawal, and the board would need to assess the circumstances. Most withdrawal disputes go to the State Board of Elections in the first instance.
Did this rule apply to partisan municipal elections?
No. The opinion expressly limited itself to nonpartisan municipal plurality elections. Partisan elections have their own withdrawal procedures, often through party rules and replacement candidates.
Source
Citations
- G.S. 163-294.1 (death, disqualification, withdrawal in municipal and special district elections)
- G.S. 163-294.1(b) (ballot reprint or vacancy declaration)
- G.S. 163-294.2 (notice of candidacy in nonpartisan municipal elections)
- G.S. 163-294.2(d) (pre-deadline withdrawal with refund)
Original opinion text
Requested By: Thomas L. Currin, Counsel to the Granville County Board of Elections
Question: May a candidate in a nonpartisan municipal election withdraw his candidacy after the filing deadline and have his name removed from the ballot?
Conclusion: Yes.
Relevant parts of G.S. 163-294.1 and 163-294.2 read:
"163-294.1. Death of candidates or elected officers. (2) This section shall apply only to municipal and special district Elections. . . .
(b) . . . If a candidate in a nonpartisan election dies, becomes disqualified, or withdraws before election day and after the ballots have been printed, the board of elections shall determine whether there is enough time to reprint the ballots. If there is not enough time to reprint the ballots, and should the deceased or disqualified candidate receive enough votes to be elected, the board of elections shall declare the office vacant, and it shall be filled as provided by law.
G.S. 163-294.2. Notice of candidacy and filing fee in non-partisan municipal elections. . . .
(d) Any person may withdraw his notice of candidacy at any time prior to the filing deadline prescribed in subsection (c), and shall be entitled to a refund of his filing fee if he does so."
Pursuant to 163-294.1(b) if time permits upon death, disqualification or withdrawal of a candidate the ballot if printed will be reprinted. It stands to reason that if a candidate withdraws prior to the printing of the ballot though after the filing deadline his name should not appear on the printed ballot.
It would appear that 163-294.2(d) speaks to the right of withdrawal prior to the filing deadline and to the right to a refund of his filing fees if such occurs.
This opinion speaks only to nonpartisan municipal plurality method elections.
RUFUS L. EDMISTEN
ATTORNEY GENERAL
William W. Melvin
Senior Deputy Attorney General