11,310 ballots cast out

Court rules voting outside home precinct is illegal; races in limbo

MARK JOHNSON   Charlotte Observer   05 February 2005

RALEIGH - The N.C. Supreme Court ruled Friday that provisional ballots cast by voters outside their home precinct are illegal, throwing out 11,310 ballots and potentially overturning a statewide vote and local races across the state.

The decision leaves the race for state schools superintendent in limbo and raises questions about the Mecklenburg County commissioners' election.

The case now goes back to a Wake County court, but the ruling means the state's 100 counties will have to identify the errant ballots and subtract them from their totals. In Mecklenburg, for example, there were nearly 1,800 out-of-precinct provisional ballots that county officials will have to examine, count the votes in each race and subtract them from the results.

"It's causing a political crisis. It could leave our elections unresolved for months," said Bob Cordle, a Democratic member of the state Board of Elections from Charlotte.

Voters in the future will have to ensure they go to the correct precinct to cast a ballot.

Bill Fletcher, the Republican candidate for superintendent of public instruction who filed the lawsuit, said he was grateful for the decision and looking forward to the next step.

Democratic candidate June Atkinson, who was declared the winner by more than 8,000 votes, said she was confident she will end up as superintendent.

In Mecklenburg, then-commissioner Ruth Samuelson came in fourth in a race for three seats, losing by 955 votes, a margin smaller than the number of out-of-precinct votes. Her loss helped give Democrats a solid 6 to 3 majority on a previously Republican-controlled board.

"This doesn't change anything yet," she said. "It just means we're closer to knowing whether anything is going to change."

Similarly, Karl Adkins lost a race for Superior Court judge to Linwood Foust by 116 votes. Gov. Mike Easley recently appointed Adkins to a judgeship.

Mecklenburg County commissioner Bill James, who had joined in the lawsuit, was elated.

"If I weren't so sick," he wrote in a widely distributed e-mail, "I would do an end zone dance." James had gall bladder surgery Wednesday.

Mecklenburg County's out-of-precinct provisional ballots were included in the final tally and are locked in storage, separately from other ballots, said Michael Dickerson, the county's elections director. He is waiting on directions from the State Board of Elections before doing any recounting.

The court's ruling and its potential to upend a variety of races came just hours after the commissioner of agriculture's race was settled when Democrat Britt Cobb bowed out of the dispute involving more than 4,000 lost ballots in Carteret County.

The five justices who participated in the case, all Republicans, blamed the Democratic-controlled State Board of Elections for allowing out-of-precinct provisional ballots when the state's law and constitution forbid them.

"It is indeed unfortunate that the statutorily unauthorized actions of the State Board of Elections denied thousands of citizens the right to vote on Election Day," wrote Justice George Wainwright in a unanimous opinion.

Justices Sarah Parker, a Democrat, and Robert Edmunds, a Republican, did not participate in the case and did not disclose a reason. Edmunds is from Greensboro, as is one plaintiff, and Parker and Atkinson were both on the Democratic Party's slate of statewide candidates last fall.

Wainwright wrote that the court was powerless "to rectify the Board's unilateral decision to instruct voters to cast provisional ballots in a manner not authorized by state law. To permit unlawful votes to be counted along with lawful ballots in contested elections effectively `disenfranchises' those voters who cast legal ballots."

Provisional ballots are given out when a voter shows up and his or her name is not on the rolls. The ballots were used in the past to correct wrong addresses and other errors. After the vote-counting debacle in Florida in 2000, Congress passed the Help America Vote Act, which required provisional ballots under the idea that a voter could vote and officials could check later to see if the voter was eligible.

The General Assembly passed a corresponding state law, which the State Board of Elections interpreted to mean that anyone could go to any precinct in their county using a provisional ballot.

The Supreme Court is "disenfranchising a lot of voters who played by the rules," said Bob Hall of Democracy North Carolina, a campaign watchdog group.

Fletcher sued over the out-of-precinct ballots, with his lawyers highlighting where the state constitution says voters must cast ballots in their precinct. Lawyers for the state, though, said precincts determine what races a voter can vote in which state Senate district, for example not the specific building.

The state lawyers also emphasized that Fletcher's arguments would invalidate the more than 1 million early votes that were cast by voters outside their precincts. The Supreme Court ignored that issue, saying that early and absentee ballots were not at issue.

Atkinson, the Democratic candidate for state schools superintendent, said she didn't think the vote among the out-of-precinct provisional ballots was lop-sided enough to reverse the results in her race.

"I agree with (country music singer) Porter Wagoner," Atkinson said. "`I've enjoyed this as much as I can stand.'"

N.C. Court Ruling

WHAT HAPPENED? N.C. Supreme Court threw out 11,310 ballots cast outside the voters' home precincts.

WHAT'S NEXT? Case goes back to Wake County court, then counties count the improper ballots and them from November vote totals.

WHAT'S AT STAKE? Election of state superintendent of public instruction remains unsettled and questions raised about several local races statewide