The Wilkes Board of Elections will hold a public hearing Friday on whether one of six Wilkes Board of Education candidates in 2020 is a Wilkes County resident as a result of a challenge filed with the board.

The board’s hearing concerning the residency of Marty Lynn Roberts of Hamptonville starts at 1 p.m. in the commissioners meeting room on the first floor of the Wilkes County Office Building in Wilkesboro. The Hamptonville zip code includes addresses in both Wilkes and Yadkin counties.

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 for an office, the person must reside in the appropriate jurisdiction—the county or city or another electoral district.

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.”

Heather Dean of Boomer challenged Roberts’ candidacy in an affidavit filed at the Wilkes Board of Elections office on Dec. 27, said Wilkes Board of Elections Director Kim Caudill.

Dean couldn’t be reached for comment by press time, but the affidavit she filed stated that she has reason to believe Roberts actually is a resident of Yadkin County and that his primary address is 1208 Union Church Road, Hamptonville.

In the affidavit she filed, Dean said she is aware that the public record shows that Roberts also owns a home and tract of land at 2734 Somers Road, Wilkes County, N.C., and although he may occupy that home occasionally, it is believed that his primary residence remains at 1208 Union Church Road, Hamptonville, Yadkin County….”

In an interview Monday, Roberts acknowledged that he owns a house in Wilkes County and a house in Yadkin County and receives mail at both addresses, but said his residence is in Wilkes, adjacent to his business, Rid-A-Bug Exterminating Inc. He also noted that he is registered to vote in Wilkes.

“I’m just trying to make a difference in the lives of children in Wilkes County,” said Roberts, adding that a lot of people have indicated that they support him. He said his attorney will be with him at the hearing Friday.

The affidavit filed by Dean stated and provided documentation showing that the Wilkes County Tax Registry mails the tax bill for Roberts’ house and 11 acres at 2734 Somers Road is mailed to Roberts at 1208 Union Church Road, Hamptonville.

The affidavit also stated and provided documentation showing that Articles of Organization for LLR Farms LLC filed with the N.C. Secretary of State’s office list Roberts as the registered agent and show him with an address at 1208 Union Church Road, Hamptonville.

Roberts said he only owns a small portion of the LLC referenced in the affidavit.

According to statutes, “The burden of proof shall be upon the candidate, who must show by a preponderance of the evidence of the record as a whole that he or she is qualified to be a candidate for the office.”

Caudill said the Roberts matter is the first candidate residency case heard by the Wilkes Board of Elections. She said it must be handled like a court proceeding, with the elections board serving as a judge. The board will issue a verbal decision after hearing testimony on both sides of the matter Friday, followed by a written decision within 20 days.

People who speak during the hearing will be sworn in. A court reporter from Caldwell County was hired to take down what is stated. Caudill said the board’s decision can be appealed to the State Board of Elections, and from there it may be appealed to the N.C. Court of Appeals.

Dean met the requirement of filing a candidate challenge within 10 business days of the end of the period to file for election. An affidavit also must be filed.

This is Roberts’ first time as a candidate for elected office.

Caudill said that in addition to notifying Roberts about the challenge, she notified the chairman of the Wilkes Democratic and Republican parties and the other five Wilkes school board candidates.

From UNC School of Government

According to Robert Joyce of the University of North Carolina School of Government, “A unique body of law has grown up around the question of residence for voting purposes. It starts with the statutory definition (found in G.S. 163-57) that some people find a little vague. “That place shall be considered the residence of a person in which that person’s habitation is fixed, and to which, whenever that person is absent, that person has the intention of returning.” 

Joyce added, “It’s not a simple formula, such as where you sleep or where you get your mail.  Instead, it’s a little more fluid, boiling down to a few rules, simple to state but sometimes hard to apply.

“First, everybody has one and only one residence for voting purposes.  You may own and spend time at two or more houses, but only one can be your voting residence.

“Second, your residence once established remains your residence until by your actions and intent you affirmatively change it to a new residence. As the N.C. Supreme Court once put it, a person acquires a new residence for voting purposes when ‘he (1) has abandoned his prior home, (2) has a present intention to make that place his home, and (3) has no intention presently to leave that place.'  Lloyd v. Babb, 296 N.C. 416, 449 (1979).

“And third, your intent counts (that is, what you consider your home is very important in a determination as to what your residence is), but what you say your intent is can be overridden by what you actually do.  As the state court of appeals once put it, ‘We have not ignored defendant’s declarations concerning his [residence].  We must point out, however, that conduct is of greater evidential value than expressions of intent.’”

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