Can a North Carolina county board of elections force a public school, town hall, or other tax-supported building to be used as a polling place against the wishes of the people who run it?

Plain-English summary

Surry County's Board of Elections wanted to use part of a public building as a polling place. Someone, presumably whoever ran the building, was not happy about it. Angie Crews asked the AG whether the elections board could simply demand the space anyway. Senior Deputy AG Ann Reed and Special Deputy AG Susan Nichols said yes.

The answer rested on the plain language of G.S. § 163-129. The statute told county boards of elections that they "shall be entitled to demand and use any school or other State, county, or municipal building, or a part thereof, or any other building, or a part thereof, which is supported or maintained, in whole or in part by or through tax revenues" for any primary or election. The statute went further: the elections board could "require that the requisitioned premises, or a part thereof, be vacated for these purposes." A separate provision required the building's operators to provide adequate voter parking once the elections board determined a tax-supported building would be used.

The AG framed the power as straightforward and not subject to a public official's veto. The county board of elections "clearly" had the authority to use the facility "even over the objection of those otherwise in control of the public facility." That language was important. It meant a principal who did not want school classes interrupted on election day, or a town manager who did not want voters in the lobby of town hall, could not unilaterally refuse.

The AG then put a cooperation duty on both sides. Citing Avery County v. Braswell, 215 N.C. 270 (1939), the AG observed that the elections board had to act for the benefit of the public, not for its own convenience or that of any private faction. The other side of the same coin: the building's operators also had to act for the benefit of the public. Read together, those duties meant both bodies had to negotiate in good faith to find space and parking that satisfied federal and state election requirements (including the federal accessibility standards then in force) while avoiding unnecessary disruption to the building's essential functions. In effect, the elections board had a trump card under the statute, but it was expected to use the card responsibly and through dialogue.

Currency note

This opinion was issued in 2000. 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. North Carolina's election administration statutes have been recodified within Chapter 163 multiple times since 2000 (including the 2017 enactment of the State Board of Elections and Ethics Enforcement and subsequent reorganizations), so the section numbers in this opinion may now read differently. The substantive demand-and-use authority for tax-supported buildings has remained in the statute book, but anyone administering election sites should consult current Chapter 163 provisions.

Background and statutory framework

Why the statute exists. Polling places have to be accessible, equipped with electrical service, large enough to accommodate machines and voter flow, available for the full election day, and free of partisan branding. State election boards have historically relied on public buildings (schools, libraries, fire stations, town halls, recreation centers) because those buildings meet the requirements and because their use shifts the cost of polling space from the elections budget to the building's existing operating budget. G.S. § 163-129 was the General Assembly's tool to make sure local building managers could not block precinct-line decisions made under § 163-128.

The statutory text in 2000. Section 163-129 instructed county boards of elections to provide or procure (by lease "or otherwise") "a suitable structure or part of a structure" for registration and voting. The same sentence said the board was "entitled to demand and use" any tax-supported building or part of one, for "any primary or election," and could require the premises to be vacated. A separate paragraph let the elections board require the building's controllers to provide adequate parking.

The Avery County principle. Avery County v. Braswell held that local government officers act in the public's trust, not for themselves. The AG used the case as a reminder that both the elections board and the building's operators had public-benefit duties. The duties cut both ways: the elections board could not pick an inconvenient or arbitrary space to punish a political opponent, and the building's operators could not stonewall a reasonable request.

Accessibility and federal law. The opinion mentioned "federal and state requirements for the conduct of elections, including accessibility requirements." In 2000, those requirements came from the Voting Accessibility for the Elderly and Handicapped Act (1984) and the Americans with Disabilities Act (1990). The Help America Vote Act of 2002 added a more detailed accessibility regime later. The AG's point was that the elections board's request had to be for space that met those requirements; a request for an inaccessible second-floor room of a building without an elevator would not satisfy the cooperation duty.

"Or part thereof." The phrase mattered because building managers often resisted ceding the entire building. The statute resolved that by letting the elections board demand part of the building. The combination of "demand" and "or part thereof" was the AG's textual hook for the conclusion that a manager could not say no to the request itself, only to the specific room or layout proposed.

Common questions

Q: Could a school principal close school on election day and refuse to host voting because the building was "closed"?

A: The opinion did not address the closure question directly, but the demand-and-use authority of § 163-129 covered the building regardless of its operating schedule. A closure decision did not strip the elections board of its statutory access right.

Q: What if the elections board picked a building with no parking?

A: The statute let the elections board "require" the controllers of the building to provide adequate parking. If the building did not own enough parking, the cooperation duty pushed both sides toward neighboring lots, shuttle arrangements, or alternative space.

Q: Could a private building, owned by a person or business, be commandeered the same way?

A: Only if the private building was "supported or maintained, in whole or in part by or through tax revenues." A purely private business, without tax support, was outside the statute's demand-and-use authority.

Q: What was the remedy if a building manager refused to comply?

A: The opinion did not address enforcement. Practically, the elections board could go to court for a writ requiring compliance, since the statute imposed a duty rather than a discretionary courtesy.

Citations from the opinion

• N.C. Gen. Stat. § 163-129
• Avery County v. Braswell, 215 N.C. 270 (1939)

Source

• Landing page: https://ncdoj.gov/opinions/authority-to-demand-and-use-part-of-public-facility-as-voting-place/

Original opinion text

Re: Advisory Opinion; Authority to Demand and Use Part of Public Facility as Voting Place; N.C. Gen. Stat. § 163-129

Dear Ms. Crews:

On behalf of the Surry County Board of Elections you have requested an advisory opinion on whether the Board of Elections may demand a certain part of a public facility to use as a voting place. The pertinent statute, N.C. Gen. Stat. § 163-129, provides in part:

At the voting place in each precinct established under the provisions of G.S. 163-128, the county board of elections shall provide or procure by lease or otherwise a suitable structure or part of a structure in which registration and voting may be conducted. To this end, the county board of elections shall be entitled to demand and use any school or other State, county, or municipal building, or a part thereof, or any other building, or a part thereof, which is supported or maintained, in whole or in part by or through tax revenues . . . for the purpose of conducting registration and voting for any primary or election, and it may require that the requisitioned premises, or a part thereof, be vacated for these purposes.

If a county board of elections requires that a tax-supported building be used as a voting place, that county board of elections may require that those in control of that building provide parking that is adequate for voters at the precinct, as determined by the county board of elections.

The statute clearly gives a county board of elections the authority to demand and use a part of a public facility or a facility supported in part through tax revenues for voting on primary or election days, even over the objection of those otherwise in control of the public facility. In exercising this authority, however, it is incumbent on the Board of Elections to act for the benefit of the public. See Avery County v. Braswell, 215 N.C. 270, 275 (1939). Likewise, those in control of the facility sought to be used by the Board of Elections must act for the benefit of the public. Accordingly, in our opinion both bodies must cooperate (1) to make available for elections parts of the public building and its parking facilities which meet federal and state requirements for the conduct of elections, including accessibility requirements, and (2) at the same time to avoid disruption of the essential functions of the public facility.

Signed by:

Ann Reed, Senior Deputy Attorney General

Susan K. Nichols, Special Deputy Attorney General

cc: Gary O. Bartlett, Executive Secretary-Director, State Board of Elections