If a NC sheriff's election is being contested and won't be resolved before the incumbent's term ends, who serves as sheriff in the meantime?

Plain-English summary

An election contest over the Hoke County sheriff's race was still pending as the incumbent's term approached its December 7, 1998 expiration. The State Board of Elections had directed the county board to withdraw a certificate of election that was improperly issued while the contest was pending. The appeal would not be resolved before the term ended, and the incumbent said he was willing to continue serving. The county attorney asked who would act as sheriff in the meantime.

The AG answered that the incumbent would remain in office. Article VI, § 10 of the North Carolina Constitution says that, absent a contrary provision, elected officers hold their positions until their successors are "chosen and qualified." The opinion found no provision for sheriffs that displaced this rule. Because the incumbent would retain the position, there would be no vacancy to trigger the process in N.C. Gen. Stat. § 162-5. The office urged the Hoke County Board of Elections to resolve the contest expeditiously.

Currency note

This opinion was issued in 1998. 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.

Common questions

Q: Why was the election certificate withdrawn?
A: The opinion said it had been issued while an election contest was pending. The State Board of Elections directed the Hoke County board to withdraw it, and the county board did so. The opinion cited § 163-181 for the rule against issuing a certificate during a contest.

Q: Who would serve after the incumbent sheriff's term expired?
A: The incumbent would hold the office until a successor was chosen and qualified under Article VI, § 10. The opinion said no contrary provision applied to the sheriff's office.

Q: Could the county use the sheriff-vacancy process instead?
A: The AG said § 162-5 would not be invoked in this case because the incumbent would remain in office and no vacancy would occur.

Q: Did the opinion direct the election board to act?
A: It said it was important for the Hoke County Board of Elections to act expeditiously to resolve the contest. The opinion did not decide the contest itself.

Background and statutory framework

The opinion cited N.C. Const. Art. VII, § 2 and N.C. Gen. Stat. § 162-1 for the incumbent's term ending December 7, 1998. Its answer rested on the holdover language of N.C. Const. Art. VI, § 10. It distinguished N.C. Gen. Stat. § 162-5 because that statute provides a process only when the sheriff's office is vacant.

Citations from the opinion

• N.C. Const. Art. VI, § 10
• N.C. Const. Art. VII, § 2
• N.C. Gen. Stat. § 162-1
• N.C. Gen. Stat. § 162-5
• N.C. Gen. Stat. § 163-181

Source

• Landing page: https://ncdoj.gov/opinions/incumbent-sheriff-holds-over-until-successor-qualified/

Original opinion text

December 3, 1998

Mr. Garris Neil Yarborough Hoke County Attorney Hoke County

P.O. Box 266 Raeford, N.C. 28376

Re: Advisory Opinion: Incumbent Sheriff Holds Over Until Successor Qualified; N.C. Const. Art. VI, Sec. 10

Dear Mr. Yarborough:

You have requested an advisory opinion from this office and your request has been referred to me for a response. It arises from a disputed election for sheriff in Hoke County. The State Board of Elections has directed the Hoke County Board of Elections to withdraw an improperly issued certificate of election for the sheriff's race in Hoke County and the certificate has been withdrawn. It was improperly issued because an election contest was pending, and under North Carolina law no certificate should have been issued while the contest was pending. See N.C. Gen. Stat. § 163-181. The appeal has not yet been resolved and will not be resolved before the expiration of the incumbent sheriff's term of office on December 7, 1998, pursuant to N.C. Const. Art. VII, Sec. 2 and N.C. Gen. Stat. § 162-1. The incumbent sheriff has indicated he is willing to serve in office until the election dispute is resolved. Your question is who will act as sheriff of Hoke County during the pendency of the election protest after the expiration of the incumbent's term.

The North Carolina Constitution provides in Article VI, Section 10 as follows: "In the absence of any contrary provision, all officers in this State, whether appointed or elected, shall hold their positions until other appointments are made or, if the offices are elective, until their successors are chosen and qualified." There is no other provision applicable to the office of sheriff that overrides this constitutional provision.

N.C. Gen. Stat. § 162-5 provides a process to fill the office of sheriff upon the occurrence of a vacancy in the office. However, it is our opinion that this process will not be invoked in this case since, pursuant to Article VI, Section 10 of the North Carolina Constitution, the incumbent sheriff will retain his position and no vacancy will occur.

Thus, by operation of this provision in the Constitution, the incumbent sheriff in Hoke County will hold his position until his successor has been qualified. Obviously, it is important that the Hoke County Board of Elections act expeditiously to resolve the election contest.

signed by:

Ann Reed, Senior Deputy Attorney General

Susan K. Nichols, Special Deputy Attorney General