Authority to Demand and Use Part of Public Facility as Voting Place

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. § 163129, 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 Couty 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