A human being can go about two days without water before major warning signs appear – and, apparently, a state can go about six months without a board of elections before big problems start to show up.
The State of North Carolina has now gone a half-year without a state board of elections and it’s heading into 2018 with no sign that a board will be in place any time soon. That absence of a state board is starting to show itself in multiple ways – and the problems are only mounting as time goes on.
During the last election on Tuesday, Nov. 7, problems arose that the state board would normally have addressed, leaving election officials in something of a quandary; and, in the aftermath of that election, there are lingering disputes – some of which require the state elections board to adjudicate them. However, since there is no board, those disputes are being handed over to Wake County Superior Court.
Also, with no state elections board in place, there’s no one to certify the winners of multijurisdictional seats across the state – races that cross county borders, such as the High Point mayor’s race. Nor is there a state elections board to certify new voting machines. Some counties will see their existing machines decertified at midnight, Dec. 31.
The NC General Assembly and Gov. Roy Cooper have been battling since late last year over the nature of the state board of elections, and that dispute has left the state election board-less while the court system handles the matter. The General Assembly passed legislation that created a newly structured state elections board – one that was combined with a state ethics board into the new NC State Board of Elections & Ethics Enforcement. However, Cooper argued that that move was unconstitutional and he has refused to appoint any members to the new combined state board.
The courts upheld the new elections and ethics board created by the legislature; however, the matter has been appealed to the state’s Supreme Court, and now Cooper, election officials across the state and everyone else involved are awaiting a decision.
Since that state board appoints members to county boards of elections – and since there’s no state board to appoint new members – more concerns have been arising as county board members resign, die, move away or lose interest in serving on the board.
The NC Supreme Court did rule earlier this year to allow boards with only two members to continue operating, even though the state boards all have four seats under the new law, and two members would normally not be sufficient for a quorum. So far, there is no news of any board in the state going to one or zero members due to death, illness, resignations or other issues – but that’s only a matter of time and, any day now, a county could find itself with a one-member board that cannot legally supervise that county’s elections.
Several election officials, both state and local, said this week that they have no idea when the Supreme Court will make a decision.
One current case that would normally have been addressed by the state elections board originated in Winterville – a small town near Greenville – where one candidate for a Winterville Town Council seat came out ahead by a single vote, but 10 votes were apparently cast inadvertently from outside the town limits due to a clerical error. The local elections board wrote a letter to the state elections board noting that the election result couldn’t be certified and that board was therefore sending the matter to the NC State Board of Elections & Ethics Enforcement. However, since there is currently no such board, the state’s elections office submitted the matter to the Wake County Superior Court, where apparently judges, rather than election board members, will determine the winner.
Another case that came up was in the town of Sharpsburg, a small town about 60 miles east of Raleigh, where the incumbent mayor received 139 votes and his opponent 136 votes. A problem at one polling place kept some from voting and county boards don’t have the legal authority to extend voting hours without the state board’s approval – so the Wilson County Board of Elections was unable to extend those hours.
Now, some are asking the Wilson County Board of Elections to call for a new election, but the county board doesn’t have that power either – a county board can only make a recommendation to the state board, which ultimately makes the decision.
If that dispute isn’t complicated enough already, the town spans three counties – Edgecombe, Nash and Wilson. Also, the Southern Coalition for Social Justice has now gotten involved and there are racial tensions over the contest results since one candidate is black and the other white. Whoever the state board of elections members are once they’re named, they might hope that that dispute gets worked out by the courts before the new state board is established.
In Guilford County, Board of Elections Director Charlie Collicutt said he has no idea when the issue will be resolved. He said he’s hearing radio silence from state officials and the court.
“I’ve heard nothing at all,” he said.
County elections boards certify the results of races that are within one county, but the state board certifies races that cross county lines, such as the High Point mayor’s race. Before the November election, several legal and election officials told the Rhino Times that a state board had to be put in place before the election because that board was needed to certify those multijurisdictional winners; however, since then the election has come and gone – and there’s still no state board. Those winners were sworn into office despite the issue.
Patrick Gannon, the public information officer for the State Board of Elections & Ethics Enforcement, said that, in lieu of signed certifications the state board would normally send to winning candidates after an election, the state’s elections office has sent a letter to the candidates explaining the situation.
That letter, which is signed by Kimberly Strach, the chief state elections official for North Carolina, reads, “Ordinarily, the State Board of Elections & Ethics Enforcement (“State Board”) would issue a signed certificate of election to the winner of a multi-county election. Because of ongoing litigation regarding the agency, however, members have not been appointed to the State Board. Signed certificates cannot be issued at present.”
That letter also states, “Results for your contest have been certified by individual county boards of elections and confirmed by careful audits conducted by the State Board Office. Official county results and unofficial state results confirm you are the winner, and we wish to extend our best wishes as you assume office.”
Gannon said it was his understanding that election disputes that would have ended up with the state board will be transferred to Wake County Superior Court.
“We’re just awaiting a Supreme Court decision,” Gannon said, adding that he had “no prediction” when that decision would be handed down.
Gannon summed up the situation in a subsequent email: “The N.C. Supreme Court is expected to make a final ruling on the constitutionality of Session Law 2017-6. We don’t know when that will happen. Circumstances have arisen where a State Board is needed, but this agency has been navigating those as they come up, sometimes through the courts. We will continue to do that until new board members are appointed.”
One of the most serious concerns resulting from the lack of a state board is whether all counties will have certified voting machines in place for the 2018 elections.
Purchasing election machines is an involved process but right now election officials don’t know which machines a new elections board will certify, and that puts all buying decisions on hold. Even after the state Supreme Court makes a decision, it will take time to appoint that board – and for the board to meet, discuss the matter and make a ruling on what type of voting machines can be used. After that, the counties will be able to begin the selection process.
That will not be a problem for Guilford County but will be for other counties. Due to two pieces of legislation passed by the NC General Assembly over the last five years, some counties have ended up with a voting machine decertification date later than that of other counties.
“We’re fine,” Collicutt said regarding voting machines for 2018. “Some other counties – like New Hanover and Forsyth – have voting machines that will be decertified in a couple of weeks.”
Kathryn Lindley, who chairs the Guilford County Board of Elections, said one major decision Guilford County will need from the state board is a primary date.
“We can’t set the primary times,” Lindley said of the board she chairs.
Like Collicutt, Lindley said Guilford County is fortunate it doesn’t have concerns about election machines since those used in this county won’t be decertified until later.