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Edward B. Foley
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NC-8: Headed for Recount?

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November 14, 2006

North Carolina’s 8th District Congressional race will be susceptible to a recount, unless uncounted provisional ballots dramatically alter the existing situation.

As of November 13, the Fayetteville Observer reports Republican Robin Hayes leading his Democratic opponent, Larry Kissel, by 465 votes (in another story, the paper reported the difference at 440). The most recent figures from the North Carolina State Board of Elections indicate the total number of ballots cast was 120,497. Assuming 120,497 as the final figure, Kissell will be able to file for a recount provided the final margin of victory is less than 1,205 votes.

This is because North Carolina law allows an unsuccessful candidate for US House to obtain a recount any time the margin of victory falls under one percent of the total vote. N.C.G.S. 163-182.7(c)(1). The margin that would result from the above figures is approximately one fourth of one percent, well within the required margin.

However, as of November 13, the Fayetteville Observer reports that 1,492 outstanding provisional ballots remain to be counted, ballots which could potentially take Kissell out of the “recount zone.” Kissell remains optimistic that these provisional votes will carry him to victory, but the State Board of Elections has indicated that historically thirty to forty percent of those ballots are disqualified and not counted. Due to this disqualification, it is expected that Kissell will have to pick up three out of every four provisional ballots to win the race.

The Fayetteville Observer reports that provisional ballots results will be added to the final tally on November 17, when local election boards certify their results.

N.C.G.S.A. s 163-182.7 (amended by S.L. 2005-428) states that a candidate desiring a recount must file a petition with the State Board of Elections by noon on the second business day after the county canvass. In contrast, the Fayetteville Observer states that the deadline is “within 24 hours of certification.” At any rate, the same Observer report states that officials interpret the law to require a recount petition to be filed by Monday, November 20th.

However, North Carolina law supplies an alternative deadline where local numbers are partial or flawed. If new numbers become available that show the candidate is entitled to a recount where before due to incorrect numbers it appeared he or she was not, the State Board of Elections will notify the candidate. Id. The candidate then has forty-eight hours to petition for a recount. Id. Officials may also order a recount at their discretion when they determine it is “necessary to complete the canvass in an election.” Id.

News reports did not contain accounts of malfunctioning machines, voter intimidation, long lines, or any of the other problems that persist in other jurisdictions. However, the candidates are clearly on the lookout for irregularities: Hayes requested a copy of all provisional ballots prior to their review.

Nathan Cemenska, Web Editor, contributed this article.