A razor-thin Republican primary in North Carolina Senate District 26 between Senate President Pro Tempore Phil Berger and Rockingham County Sheriff Sam Page has drawn attention to a little-known section of state election law that governs what happens when two candidates finish with exactly the same number of votes.
Under NC General Statute § 163-111, North Carolina requires a second primary election if candidates tie for first place in certain races, including legislative districts that span more than one county.
Senate District 26, which includes Rockingham and Guilford counties, falls under that category.
If the candidates finish with identical vote totals, the law says no recount would be held solely because of the tie. Instead, the tied candidates would automatically advance to a second primary election, unless one withdraws within three days after the results are officially declared.
“In the event of a tie for the highest number of votes in a first primary … no recount shall be held solely by reason of the tie, but the two candidates … shall be entered in a second primary,” the statute states.
State law schedules second primaries 10 weeks after the original primary election.
North Carolina’s second-primary system dates back to the state’s 1915 Primary Election Law, which established the framework for party primaries and runoff elections.
The distinction dates back to early election laws, when coordinating recounts across multiple counties was considered too complicated, according to Andy Jackson, director of the John Locke Foundation’s Civitas Center for Public Integrity.
Instead, the General Assembly adopted a simpler solution: If a tie occurred in a multi-county race, the candidates would face each other in a second primary decided by voters.
That framework has remained largely intact even as election administration has become more centralized.
Exact ties in legislative primaries are extraordinarily uncommon. Most multi-county legislative races involve thousands or tens of thousands of votes, making a perfect tie statistically unlikely. Close races are more commonly resolved through recounts when margins are extremely small.
“This is the type of bizarre, century-old rule law that has attracted little attention because it’s rare to see a situation when it might have to be used,” said Mitch Kokai, John Locke Foundation senior political analyst. “Don’t be surprised if the State Board of Elections and General Assembly take a closer look at this issue moving forward. The Berger-Page electoral battle could seal the fate of this requirement. It could be gone by the time the next round of multi-county elections takes place.”
In a post on X, Former Board of Election Member Gerry Cohen further highlighted the abnormality of this outcome occurring.
The law treats single-county offices differently.
If a tie occurs in a primary for a county office or a legislative district contained entirely within one county, election officials must first conduct a recount. If the recount still results in a tie, the race then proceeds to a second primary.