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

The Surry County Board of Elections asked whether it could demand a particular part of a public facility for use as a voting place. The Attorney General said N.C. Gen. Stat. § 163-129 gives a county board of elections authority to demand and use a school, another public building, or another building supported in whole or in part by tax revenues, including a part of such a building. It may do so even when the people in control of the facility object.

The statute also lets the elections board require that requisitioned premises, or part of them, be vacated for registration and voting. If it requires a tax-supported building as a voting place, it may require those in control to provide voter parking that the board determines is adequate.

The opinion adds a public-benefit obligation on both sides. The elections board and the facility's controllers must cooperate to make available space and parking that meet federal and state election requirements, including accessibility, while avoiding disruption of the facility's essential functions. The opinion does not give a facility manager a veto over a particular room or layout. Nor does it say the board may ignore the public-benefit and cooperation duties when selecting space.

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.

For a present-day polling place, check the current election statute and applicable accessibility requirements.

Common questions

Q: Can officials controlling a tax-supported building refuse its use as a polling place?
A: The opinion says the elections board may demand and use the building or a part of it even over their objection. It also says both sides must cooperate to meet election requirements and protect the building's essential functions.

Q: Can the elections board demand only part of a school or public building?
A: Yes. The statute quoted in the opinion expressly permits use of a building "or a part thereof" and allows the board to require the requisitioned premises or part to be vacated for voting.

Q: Who decides whether the parking is adequate?
A: The statute says the county board of elections determines adequacy and may require those in control of the tax-supported building to provide voter parking.

Q: Does the opinion give the facility manager veto power over a particular room?
A: No. It says the board may demand part of the building even over an objection. It also directs the two bodies to cooperate on space and parking that meet election requirements while avoiding disruption of essential functions.

Background and statutory framework

N.C. Gen. Stat. § 163-129, as quoted in the opinion, authorizes a county board of elections to procure suitable voting space and to demand tax-supported buildings or parts of them. It also addresses voter parking. The Attorney General cited Avery County v. Braswell, 215 N.C. 270 (1939), in explaining that the elections board must act for the public's benefit, and applied the same duty to the building's controllers. The resulting instruction is cooperation on compliant space and parking with attention to the facility's essential functions.

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