The Guilford County Board of Elections held a special meeting on Thursday, July 26 to consider a residency challenge for District Court Judge Mark Cummings, a candidate for the 18A Superior Court judge seat who is running against District Court Judge Lora Cubbage. Both candidates are Democrats.
The seat is currently held by Superior Court Judge Patrice Hinnant, who is not running for reelection.
After a long and confusing discussion, the board was deadlocked 2 to 2 on whether it had the jurisdiction to hold a hearing on the challenge. The Republicans on the board, Chairman Kathryn Lindley and Eugene Lester, voted that the board did have jurisdiction and the Democrats, Jim Kimel and T. Anthony Spearman, voted that they didn’t.
Since the board was deadlocked the issue will be sent to the North Carolina State Board of Ethics and Elections Enforcement to rule on whether the Guilford County board has jurisdiction.
According to the challenge filed by Willena Cannon, Cummings and his wife live at 3675 McGinty Dr., which is in judicial district 18E, and that makes Cummings ineligible to run for the seat in 18A.
The complaint states that Cummings was told by the Superior Court Trial Court administrator on or about June 27 that he was ineligible to run for the 18E seat because he did not reside in the district.
Cummings listed 444 Gorrell St., Unit C, as his residence when he filed to run on June 29, but according to the challenge Walter Leray Graves is the resident at that address.
The challenge also notes that while Cummings had changed his voter registration to the Gorrell Street address, his wife was still registered to vote at the McGinty Drive address.
The complaint also lists a bunch of evidence that Cummings had lived at the McGinty Drive address and that the evidence is that on the day Cummings filed to run for the 18A Superior Court judge seat on June 29, 2018, he was not a resident of the Gorrell Street address.
It is a thorough challenge with 25 pages of statements and documents.
At the beginning of the Board of Elections meeting, Lindley noted that the burden of proof was on the candidate to prove that he did reside at that address when he filed.
Anyone who doesn’t think the election laws in North Carolina are confusing should have been at this meeting. With five attorneys present (three members of the board are attorneys – Lindley, Lester and Kimel – plus Guilford County Attorney Mark Payne and Cummings), there were almost as many different opinions of how the laws should be interpreted.
One thing was certain, Cummings didn’t want his hearing held Thursday and eventually he got his way.
Cummings first argued that he hadn’t been notified in a timely manner because he didn’t receive the official notice in the mail until Monday, July 23. He then said that as a sitting District Court judge he had to be in court and couldn’t stay for the hearing.
A motion to continue with the hearing passed on a 3-to-1 vote with Spearman voting no.
Cummings then challenged the right of the board to hold the hearing based in part on the fact that in the statute the state board was referred to with a capital B.
This was denied on a unanimous vote.
Cummings was then allowed to question the challenger. When he asked Cannon her level of education, the question was ruled out of order by Lindley.
When Cummings asked Cannon who helped her file the complaint, that was also ruled out of order. But since Cannon had already answered, the answer was allowed to stand. Cannon said that Lewis Pitts, a former civil rights attorney, had assisted her.
The question then boiled down to when and where the complaint was filed.
Guilford County Director of Elections Charlie Collicutt testified that Cannon had given him a copy of the complaint on July 11, but that he saw that as a courtesy, because the complaint had to filed with the State Board of Ethics and Elections Enforcement in Raleigh and the deadline was July 13.
Cannon said that she mailed it on July 11 after meeting with Collicutt and getting the address.
Collicutt testified that on July 18 he received an email from Josh Lawson, the attorney for the state board of elections in Raleigh, that stated the challenge to the candidacy had been filed. The email states, “Attached, please find a scanned copy of the Petition and Challenge to the Candidacy received by our Office yesterday. The Petition and Challenge was correctly filed with the State Board, and your County Board must now proceed under G.S. 163A-1027.”
Collicutt said he responded with an email that asked if it was “correctly and timely filed.” Collicutt testified that, in a phone conversation, Lawson said that it was timely filed but he had no documentation to that effect and that is what the board discussed at some length.
The challenge was not date stamped but the envelope was date stamped July 17, which would have been past the July 13 deadline for filing a challenge.
To someone who didn’t attend law school, the fact that the state stated it was “correctly” filed would mean that it was timely filed. Also the fact that the email from the state board attorney stated that the Guilford County board “must proceed” would be evidence that, according to the rules of the state board, it was both correctly and timely filed.
The statute does not specify what constitutes timely filing but it is believed by some that the state board considered a challenge filed when it was mailed, not when it was received. There is nothing in the law that would prohibit this interpretation.
But Kimel said that the July 17 date stamp raised too much ambiguity for the Guilford County board to continue the hearing and Spearman agreed.
So with the 2-to-2 split on the Guilford County Board of Elections on whether it could hold the hearing, Cummings got the delay that he was seeking.
Since the state has already ruled that the challenge was timely filed, but hadn’t put it in writing, it seems unlikely that the state board will overrule its attorney and decide that it was not filed in a timely manner, which means this challenge will go to the state, be sent back the Guilford County Board of Elections and then, regardless of the ruling of the Guilford County board it will likely be appealed to the state board for a final decision.
Residency challenges are the challenge du jour this year. There have been far more than in a normal election year and few have succeeded.