If a fire district tax referendum ends in a tie vote, has the tax been approved or rejected, and when can a new election on the same tax question be held?

Plain-English summary

Duplin County's Board of Elections held a fire district tax election on January 21, 1997, in the Stacey Britt area. The election asked residents whether a new special tax should be imposed to fund the Warsaw Volunteer Fire Department's services there. The election ended in a tie vote. The Board certified the result and then asked the AG two questions: does a tie mean the tax passed or failed, and when can a new election be held?

Senior Deputy AG Ann Reed and Special Deputy AG Susan K. Nichols answered:

Tie means rejected. N.C.G.S. § 69-25.4 requires that "a majority of the qualified voters voting at said election vote in favor" before the county commissioners may levy the tax. A tie is not a majority. The North Carolina Supreme Court spelled out the principle in State ex rel. Duncan v. Beach, 294 N.C. 713 (1978), quoting C.J.S.: "it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or a plurality of the legal votes cast in the election." The fire tax did not receive a majority. The statute also does not provide for a tie-breaking second vote, so the result stands as defeat.

Two-year wait. N.C.G.S. § 69-25.1 provides that "if the voters reject the special tax under the first paragraph of this section, then no new election may be held under the first paragraph of this section within two years on the question of levying and collecting a special tax under the first paragraph of this section in that district, or in any proposed district which includes a majority of the land within the district in which the tax was rejected." The statute is clear: the two-year clock runs from the rejection date. For the Stacey Britt area, that means no new vote on a fire district tax before January 21, 1999.

Petition still required afterward. When the two-year wait ends, a new election still requires a new petition. The only mechanism the statute provides for calling such an election is the petition procedure (petition signed by at least 35% of resident landowners). The earlier petition does not roll over.

The opinion is short but practical. It resolves a question that probably came up routinely in the era before larger reorganizations: rural communities whose fire service was being subsidized by neighboring towns and where local landowners wanted equal cost-sharing but the actual residents who would pay the tax declined to approve it.

Currency note

This opinion was issued in 1997. 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. The fire district tax statutes have been amended on multiple occasions since 1997, and many counties have moved to consolidated fire-tax structures or county-wide fire service taxes. Anyone facing a current question about fire district tax election procedure should consult the current versions of Chapter 69 and the relevant chapter on county-wide fire service taxation, plus the State Board of Elections rules.

Background and statutory framework

North Carolina has multiple statutory frameworks for funding fire service. Chapter 69 contains the older fire district tax mechanism: a defined geographic district within a county votes on whether to tax itself to pay a fire-service contract. The petition procedure (35% of resident landowners) and the majority-vote requirement are central to the design. The result is that fire taxes are imposed only with the affirmative consent of those who will pay them.

The Stacey Britt situation reflected the structural tension. The area received fire protection from a neighboring volunteer department. Town residents who lived inside Warsaw paid a town tax that funded the department. Stacey Britt area landowners (outside the town limits) received service but did not pay the town tax. Some Stacey Britt landowners wanted to formalize the cost-sharing by imposing a special tax on the area. But when the special tax went to a vote, half of the resident voters did not want to pay it.

The opinion's reasoning on the tie vote is straightforward majoritarian logic: a tax authorization requires a majority, period. The Duncan court's quote from C.J.S. is the textbook statement. The two-year waiting period is the legislature's protection against repeated re-petitioning by tax proponents after a rejection.

The renewed-petition requirement after the two-year wait matters in practice because organizing a 35%-of-landowners petition takes effort. Tax proponents cannot keep a defeated petition "in the bank" and use it again. They have to start over with the signature drive. That structural friction further protects against tax-fatigue elections.

Common questions

Does a tie vote always mean a measure fails?

In NC tax referenda where statute requires "a majority voting in favor," yes. The principle is general: a tie is not a majority and not a plurality. The legislature can override this default by writing in a specific tie-breaking provision (some statutes provide that the governing board decides ties, or that the proposition is deemed passed unless a specific number vote no), but absent such a provision, a tie defeats.

Could the county commissioners impose the tax anyway after a tie vote?

No. The statute conditions the commissioners' authority on the majority vote: "If a majority of the qualified voters voting at said election vote in favor of levying and collecting a tax in said district, then the board of county commissioners is authorized and directed to levy and collect a tax." Without the majority vote, the commissioners have no statutory authority to levy this particular fire district tax.

Could the Warsaw Volunteer Fire Department simply stop providing service in the Stacey Britt area?

That is a contract question between the department and whoever it has a service agreement with, not an election-law question. The AG opinion does not address it. As a practical matter, fire departments and county governments often work out alternative funding arrangements (contracts paid out of county general fund, voluntary subscriber fees, county-wide fire service tax) when a special district vote fails.

Source

• Landing page: https://ncdoj.gov/opinions/access-to-account-billing-records-of-customers-of-public-utilities/

(Note: the NCDOJ archive lists this opinion under a URL slug that does not match the content. The opinion body, dated February 20, 1997, addresses the Stacey Britt fire district tax election.)

Citations

• N.C. Gen. Stat. § 69-25.1
• N.C. Gen. Stat. § 69-25.4
• State ex rel. Duncan v. Beach, 294 N.C. 713 (1978)

Original opinion text

February 20, 1997

Mr. Kenneth R. Newbold
Chairman
Duplin County Board of Elections
P.O. Box 975
Kenansville, North Carolina 28349-0975

Re: Advisory Opinion; Stacey Britt District Fire Tax Election; N.C. Gen. Stat. §§ 69-25.1 & 69-25.4

Dear Chairman Newbold:

Your letter dated February 3, 1997, was forwarded to me by the State Board of Elections. They have requested that we provide a response to your questions. I understand the facts of your situation to be that on January 21, 1997, your Board conducted a fire district election to determine whether a new tax should be imposed on residents of the Stacey Britt area. Those residents currently receive fire services from the Warsaw Volunteer Fire Department. Residents of Warsaw pay a town tax to cover these services but residents of the Stacey Britt area do not. The election was called by the Board of County Commissioners pursuant to N.C. Gen. Stat. § 69-25.1 after a petition signed by more than 35% of the resident landowners in the Stacey Britt area requested that an election on a special tax be held.

The election on January 21, 1997, resulted in a tie vote. Your Board has certified this result, but you ask for an advisory opinion on (1) whether a tie vote means the tax was rejected, and (2) whether and under what conditions a new election on the issue of a tax may be held. These issues are addressed below:

Consequence of a Tie Vote

North Carolina General Statute § 69-25.4 states:

"If a majority of the qualified voters voting at said election vote in favor of levying and collecting a tax in said district, then the board of county commissioners is authorized and directed to levy and collect a tax in said district in such amount as it may deem necessary…." (Emphasis supplied.)

The North Carolina Supreme Court has quoted with approval language stating "it is a fundamental idea in all republican forms of government that no one can be declared elected and no measure can be declared carried unless he or it receives a majority or a plurality of the legal votes cast in the election." State ex rel Duncan v. Beach, 294 N.C. 713 (1978) (quoting 29 C.J.S., Elections § 243). Since this fire district tax election resulted in a tie vote, it did not receive a majority vote and must be considered as having been defeated. There is no provision in the statute for a new vote in case of a tie and there is clear language in N.C. Gen. Stat. § 69-25.4 that approval of the majority of those voting is required before a tax may be imposed. The tax must be deemed to have been rejected.

Requirements for a New Election

North Carolina General Statute § 69-25.1 states: "If the voters reject the special tax under the first paragraph of this section, then no new election may be held under the first paragraph of this section within two years on the question of levying and collecting a special tax under the first paragraph of this section in that district, or in any proposed district which includes a majority of the land within the district in which the tax was rejected."

The statute clearly states that no new election may be held for two years on levying a tax after a vote has rejected a tax in that district. The only procedure available under the statute for calling a election is the petition procedure. Thus, new petitions would need to be completed in order to call a new election two years from January 21, 1997.

Ann Reed
Senior Deputy Attorney General
Administrative Division

Susan K. Nichols
Special Deputy Attorney General
Elections Section