N.C. election board hears protest over provisional ballots

11/30/2004

By GARY D. ROBERTSON  / Associated Press

Two statewide races remain unresolved four weeks after Election Day as voting officials determine what to do about thousands of ballots that got lost or thrown away, along with those that one candidate says shouldn't be counted.

The State Board of Elections met Tuesday to review protests by several candidates. Members of the board must decide whether the mistakes are enough to merit a new election. As of early afternoon, that meeting continued and no decision had been made.

The board's decision could influence the outcome of races for agriculture commissioner, where Republican Steve Troxler leads incumbent Democrat Britt Cobb by 2,342 votes, and superintendent of public instruction, where Democrat June Atkinson leads GOP candidate Bill Fletcher by 8,535 votes.

First on the board's discussion Tuesday was the issue of provisional ballots, which are ballots that voters cast outside their assigned precinct.

Michael Crowell, an attorney for Fletcher, said as many as 10,000 of those ballots shouldn't be included in the final vote count because the state constitution doesn't allow them.

In addition, he said the state board's directions to local elections officials about how to handle provisional ballots were unclear.

"Different county boards of elections are counting ballots differently," Crowell said. "The current regulation of the board does not address these differences."

Attorneys for Cobb and Atkinson argued that Fletcher was engaging in "ive disenfranchisement" by trying to eliminate the provisional ballots.

"These ballots did not favor Mr. Fletcher so the action was filed," said John Wallace, an attorney for the two.

The board must also figure out how to respond to the loss of 4,438 ballots in Carteret County when touch-screen voting machines failed to record some votes.

The ballots weren't counted because the machine manufacturer failed to change a setting that would have stored those ballots. Election officials can identify the citizens whose votes weren't recorded because they participated in early, absentee-style voting.

Cleveland County election officials also failed to recount 120 ballots in mid-November because they had been thrown out by mistake on election night, after the first round of counting was completed.

The lost ballots highlight numerous problems discovered after Election Day, including tabulation errors and misplaced ballots. Nearly all the errors have been corrected.

Atkinson's vote advantage over Fletcher is more than the number of lost votes at issue. But Fletcher also has complained that up to 10,000 provisional ballots cast in the wrong precincts statewide shouldn't be in the final count and could affect the outcome.

Wake County Superior Court Judge Henry Hight declined late Monday to delay any certification of Fletcher's race by the state board while the provisional ballot question is examined by the courts.

Crowell said he planned to appeal Hight's ruling.

"We believe we are correct as a matter of law," Crowell said. "One way or another, this is going to have to be decided by the appellate courts."

Even without the injunction, candidates have 10 days after their protests are handled by the board to appeal any ruling.

During Monday's court hearing, Crowell also argued against provisional ballots. Letting people vote in any precinct within their county increases the likelihood of electoral fraud, Crowell argued.

Lawyers for the state said the same logic would make unlawful the more than 1 million votes cast before Nov. 2, either by absentee ballot or through early voting.

Fletcher is challenging the law because he's unhappy about his showing in the election, said Alexander Peters of the State Attorney General's Office.

"This case is not about a constitutional principle," Peters said. "This case is about the plaintiffs looking at the results of the election and deciding which votes ought to be counted."

Fletcher said the numerous controversies that have marked this year's North Carolina election prompted his complaint.

"I think the candidates and the citizens deserve an accurate count, and we want to make sure we get one," he said.