Marty L. Roberts said he won’t appeal a Wilkes County Board of Elections decision that made him ineligible to continue as a candidate for a Wilkes Board of Education seat in the March 3 election, stated Wilkes Board of Elections Director Kim Caudill.

“He came in (to the Wilkes Board of Elections office) and said he won’t appeal. He said he had discussed it with his family,” said Caudill, adding that Roberts came to the office Tuesday.

Roberts declined to comment on his plans when contacted by the Wilkes Journal-Patriot on Wednesday. He told the newspaper in a text on Saturday that he did plan to appeal the Wilkes board’s decision, which came in verbal form at the end of a 3 ½-hour hearing on Jan. 3.

At the end of the hearing, the Wilkes board unanimously approved a motion by board member Timothy Joines ruling that Roberts’ domicile is in Yadkin County and not Wilkes. The motion said this decision was based on applying the board’s findings of fact in the case to N.C. General Statutes 163-127.5.

Caudill said the Wilkes board’s written decision, which reflects the Jan. 3 verbal decision, was received Wednesday. She said Roberts will get a copy. Under statutes, the Wilkes board’s written decision is due within 20 business days of the date (Dec. 27) Heather Dean of Boomer filed an affidavit challenging Roberts candidacy.

Dean’s affidavit said that while Roberts owns and may occasionally occupy a home in Wilkes at 2734 Somers Road, Hamptonville, she has reason to believe he lives in Yadkin at 1208 Union Church Road, Hamptonville. Dean said during the hearing that she looked into the matter after hearing from others that Roberts doesn’t live in Wilkes.

Under GS 163-127.5, Roberts must show that he hasn’t abandoned his domicile at 2734 Somers Road for him to claim this as the place where his “habitation is fixed.” He must show that he intends 2734 Somers Road to be his permanent domicile even though he built a house at 1208 Union Church Road and spends most nights there.

The N.C. Constitution (Article VI, Sec. 8) provides that a person is disqualified for office if the person is “not qualified to vote in an election for that office.” To be qualified to vote, the person must reside in the jurisdiction in which the person votes.

N.C. statutes say a person’s residence is the place in which a “person’s habitation is fixed, and to which, whenever that person is absent, that person has the intention of returning.”

After receiving the Wilkes board’s written decision, Roberts has two days to file an appeal with the N.C. Board of Elections. Statutes say the state board “shall… render its opinion on an expedited basis,” but no certain number of days is stated.

Roberts filed an affidavit on Jan. 3 stating that the 2734 Somers Road home has been his residence and he has gotten mail there “for a vast majority of time” since he moved into it in 1990. It also said he has voted in Wilkes since 1990.

The state board’s decision on an appeal would be based on a transcript of the Jan. 3 hearing. A freelance court reporter, hired by the Wilkes board, was present during the 3 ½-hour hearing to provide this. Roberts and Dean both were sworn in before they spoke and were questioned by the Wilkes board and attorney Nathan Miller of Boone, representing Roberts.

Miller said during the hearing that it doesn’t matter that Roberts’ address is listed as 1208 Union Church Road on his driver’s license and on secretary of state and some other documents. He said it’s true that Roberts owns property and sleeps overnight in both Wilkes and Yadkin, but all that matters is the location of his domicile.

“There is evidence that his domicile is still on Somers Road…. There is no evidence that he abandoned it. And that’s the key. You have to abandon it. You have to cut all ties and he hasn’t done that,” said Miller.

Wilkes Board of Elections Chairman Larry Taylor said after the hearing that he would like the N.C. Board of Elections to clarify what constitutes “abandonment.”

The Wilkes board’s “findings of fact” were derived from evidence and statements in the hearing. Statutes say “the burden of proof” is on the candidate to show that he or she is qualified to run for the office in question.

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