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STATE OF NORTH CAROLINA

WAKE COUNTY

BEFORE THE STATE BOARD OF ELECTIONS

IN RE: PROTEST OF ZACHARY LILLY )


) ORDER
)

THIS MATTER CAME BEFORE THE STATE BOARD OF ELECTIONS (“State Board”) for
telephonic hearing on July 31, 2020, on the appeal of Bevin J. Foster, a candidate in the Democratic
primary for Wayne County Board of Commissioners, District 3 (the “Contest”), after the Wayne
County Board of Elections disqualified him based on domicile in the election protest filed by Pro-
testor Zachary Lilly.

The State Board heard argument from attorney Dustin Pittman on behalf of Protestor and attorney
Jeff Loperfido on behalf of Foster. Having considered argument and written submissions from
interested parties, relevant statutes, and basing its decision upon the whole record, the State Board
hereby finds, concludes, and orders as follows:

FINDINGS OF UNDISPUTED FACTS

1. Foster was one of four candidates for the Contest in the March 3, 2020 Democratic primary
election.

2. The outcome of the Contest is as follows:

Name Votes Percent


Bevan J. Foster 1,263 40.78%
Greg Batts 1,238 39.97%
Mia Barnett 369 11.91%
Myelle Thompson 227 7.33%

3. Protestor, Linda Harper, and Joy Brown filed an election protest with the Wayne County
Board of Elections on March 17, 2020, pursuant to G.S. § 163-182.9. The protest contends
that Foster does not reside at his registered address, 610 Devereaux Street in Goldsboro. It
indicates that Foster was a candidate for Mayor of Goldsboro in November 2019 at 901
Pittman Street, which is not in District 3. Foster filed for the Commissioner District 3
contest on December 20, 2020, and updated his voter registration to 610 Devereaux Street
at that time.

4. The Wayne County Board of Elections held a preliminary consideration hearing on May
27, 2020, and voted 3-2 to schedule a full evidentiary hearing. On June 10, 2020, at the
beginning of the evidentiary hearing, the CBE, by a vote of 3-2, voted to dismiss the pro-
test based on two of the three protestors being ineligible to file a protest, three protestors
having jointly filed the protest, and improper service.

5. Protestor appealed State Board. The State Board held a hearing on June 29, 2020, and
unanimously voted to remand the protest to the county board of elections for an evidentiary
hearing on the regarding Foster’s eligibility to be a candidate in the Contest, specifically,
whether he resided in Commissioner District 3.

6. On July 7, 2020, the Wayne County Board of Elections held a hearing. Neither party of-
fered live witnesses, although they were given the opportunity to do so. The Wayne
County Board of Elections considered affidavits and other documentary evidence,
including documents obtained via subpoena. By a vote of 3-2, the Wayne County
Board of Elections determined that there was substantial evidence that Foster did not
reside in the district at the time of filing and was therefore ineligible to file as a
candidate in the district. The Wayne County Board of Elections requested that the
decision be sent to State Board for action by it.

7. The findings of fact in the Wayne County Board of Elections’ order from the July 7, 2020,
are hereby adopted except as specified herein.

CONCLUSIONS OF LAW

8. The State Board has jurisdiction over this matter pursuant to G.S. § 163-182.11.

9. Pursuant to G.S. § 163-182.11(b)(2), the State Board’s appellate review was limited to
the record from the Wayne Board and supplements of the parties.

10. The State Board’s appellate review of a county board’s decision is based on “the whole
record test, which necessitates an examination of all competent evidence before the
Board and a determination as to whether the Board’s decision was based upon substantial
evidence.” Farnsworth v. Jones, 114 N.C. App. 182, 185 (1994). The whole record test
does not permit the State Board to substitute its judgment for the county board’s judg-
ment as between two conflicting views, even though it could reasonably have reached a
different result had it reviewed the matter de novo. The State Board examines all the rec-
ord evidence, including evidence that detracts from the county board’s findings and con-
clusions as well as that evidence tends to support them, to determine whether there is sub-
stantial evidence to justify the county board’s decision. “Substantial evidence” is defined
as “relevant evidence a reasonable mind might accept as adequate to support a conclu-
sion.” Meza v. Division of Social Services, 364 N.C. 61 (2010).

11. In an election protest, the burden of proof is on the protestor to prove an outcome-deter-
minative violation by “substantial evidence.” See generally G.S. § 163-182.10(d)(2). See
Appeal of Ramseur, 120 N.C. App. 521 (1995) (“In sum, we conclude that in an action to
invalidate an election or referendum, the burden of proof is upon the unsuccessful party
to show that the outcome of the election or referendum would have been different absent
irregularities in the voting process.”). The burden was on Protestor before the Wayne
County Board of Elections for factual determinations re-garding residency.

12. The Wayne County Board of Elections failed to make findings of facts regarding actual
abandonment of Foster’s domicile at 901 Pittman Street. In fact, Foster submitted multi-
ple affidavits that he moved out of 901 Pittman Street and established his domicile at the
610 Devereaux Street address in early December 2019. The fact that he temporarily left
the residence, in an arrangement that the parties agreed was temporary, does not consti-
tute an abandonment of his residence at 610 Devereaux Street. The Wayne County Board
of Elections apparently discounted this evidence altogether, yet it did not find that Foster’s
affidavits or other supporting evidence incredible.

13. Protestor responds by pointing to the fire report on which Foster listed 901 Pittman Street
as his address and to the lack of running water or power from December 9 to January 3,
2020. The fire report, however, did not indicate whether to list a residential or mailing
address, and Foster indicated he did not always receive mail at 610 Devereaux Street. In
addition to the mailings returned to the Wayne County Board of Elections, he submitted
several other pieces of mail that were sent to 610 Devereaux Street and returned to sender.

14. The Wayne County Board of Elections placed undue weight on the appropriateness of a
habitation without running water as a viable residence under the constitutional and statu-
tory framework in North Carolina. Under North Carolina law, “residence” is synony-
mous with “domicile” and denotes a permanent dwelling place to which a person, when
absent, intends to return. Farnsworth at 186-87. Certain case law regarding residency has
been codified. See G.S. § 163-57. Among the provisions of this section, it is clear that
“[i]n the event that a person’s residence is not a traditional residence associated with real
property, then the location of the usual sleeping area for that person shall be controlling;”
and “that residence shall be broadly construed; and that, in all cases, a residence is that
habitation “to which whenever that person is absent, that person has the intention of
returning.” Id.

15. In the context of a candidate’s residency, it is necessary to establish: “(1) An actual aban-
donment of the first domicile, coupled with an intent not to return to the first domicile;
(2) The acquisition of a new domicile by actual residence at another place; and (3) The
intent of making the newer domicile a permanent domicile.” G.S. § 163-127.5.

16. Residency may be established without a showing of any legal claim or title to a habita-
tion, and an individual may establish a residence for voting purposes notwithstanding
clear restrictions prohibiting their use of a premises as a residence. See In re Wilkins,
S.B.E. (2015) (affirming that a candidate had successfully established his residence in
quarters situated above a car wash in “violation . . . of a city zoning rule,”).

17. The Wayne County Board of Elections appeared to have difficulty believing that a candi-
date seeking public office might forgo comforts and amenities available at his mother’s
home in order to live in the electoral district in a property that belonged to him. That a
prospective candidate may choose to, or be forced by circumstance to, live
uncomfortably, such as without running water, does not render the candidate in eligible
for office. See In re Greene, S.B.E. (2019) (“A candidate need not choose a residence
with characteristics preferred by the majority; the majority must determine which
residence the candidate in fact chose.”).

18. Based on a review of the whole record, the Wayne County Board of Elections’ decision
was not supported by substantial evidence particularly as it relates to Foster’s purported
failure to abandon his domicile at 901 Pittman Street. Foster established residence in
District 3 as of the date he filed for office, and he was, therefore, eligible to run in the
Democratic primary for Wayne County Board of Commissioners, District 3.

IT IS THEREFORE ORDERED, by unanimous vote of all four State Board present, that:

The Wayne County Board of Elections’ order is REVERSED.

This the 3rd day of August, 2020.

_________________________________
Damon Circosta, Chair
STATE BOARD OF ELECTIONS
Certificate of Service

I, Katelyn Love, General Counsel for the State Board of Elections, do hereby certify
that that the foregoing materials were deposited to the care and custody of FedEx for
delivery to:

Bevan J. Foster
610 Devereaux Street
Goldsboro, NC 27530

Zachary Edward Lilly


211 West Ash Street
Goldsboro, NC 27530

I further certify that a copy of the foregoing materials was deposited to the care and
custody of the U.S. Postal Service using certified mail:

Zachary Edward Lilly


P.O. Box 291
Goldsboro, NC 27533

This the 3rd day of August, 2020.

________________________
Katelyn Love
General Counsel
N.C. State Board of Elections