The State of North Carolina’s lack of a State Board of Elections & Ethics Enforcement is creating serious consequences across the state and now counties are scrambling to conduct a 2018 election with no guidance from the state board and with no ability to purchase needed voting machines and other election equipment.
Also, a growing number of counties are now one accident, death, resignation or change of address away from the forced dissolution of their local boards of elections.
Due to the lack of a state board, election directors in some counties are having to borrow outdated surplus equipment from other counties or rent machines from private vendors. These and many other problems related to the absence of a state board are leading to increased costs and demands on election staff time and is putting the election system in peril heading into a major election.
Currently, 23 of the 100 county elections boards in North Carolina are down to two members and, at any instant, any of those could be out of business.
Under new legislation passed last year, county boards of elections have four seats, with three members constituting a quorum. A special North Carolina Supreme Court order currently allows two-member boards to conduct business, but if any elections board member in one of those 23 counties cannot serve for any reason, that county would be without any local body that’s legally permitted to carry out the election, since the county couldn’t do basic things like respond to challenges, determine candidate eligibility or certify winners to name a few. In short, the counties wouldn’t have a local elections board at a time when such a board is an absolute necessity – during an election.
Candidate filing has already begun and the 2018 primary season is now underway. It’s almost March and the state board dispute is still tied up while early voting and absentee voting for the Tuesday, May 8 primary are just around the corner.
Even if the current legal battle being fought in the North Carolina Supreme Court and North Carolina Court of Appeals were resolved soon, it would take additional time for a new state board to be appointed and more time for that board to meet and name new members to local elections boards in order to replenish membership on those boards. The deadline has already passed for counties to have new election machines in 2018, for either the primary or the general election.
The State of North Carolina has now gone eight months without a state elections board. The former State Board of Elections was dissolved and no members have been appointed to the new State Board of Elections & Ethics Enforcement that was created to replace the prior elections board as well as to decide questions of the ethics of state and local officials.
The North Carolina General Assembly and Gov. Roy Cooper have been battling since late 2016 over the nature of the state’s board of elections and that legal dispute has left North Carolina with no elections board while the court system adjudicates the matter. Cooper argued last year that the move by the General Assembly was unconstitutional and he continues to refuse to appoint any members to the new combined state board.
The matter went to the state’s Supreme Court, which has now handed it back to a lower court for a second time. It’s not clear when the matter will be resolved.
So far, six local election disputes from 2017 – ones that in the past would have been decided by the state board of elections – have ended up in the court system instead. With no state board in place, those cases have been handed over to Wake County Superior Court for adjudication.
One growing concern is that the 2018 election is underway and it’s only a matter of time before some local boards across the state cease functioning. No new local elections board members can be appointed since, by law, those appointments must be made by the state board.
According to staff at the state board of elections office, none of the 23 two-member boards are “single-party boards” yet; all of them have one Democrat and one Republican. However, that also could change any time as well if a member of a three-member board dies, resigns or moves away. That would negate one of the central precepts of elections boards – that they have representation by both major parties.
Forsyth County is one county that has been caught in a bind for the 2018 election. Many of its voting machines were decertified on Jan. 1 2018, and the drop dead date has now passed for the state board to certify new types of election machines in time for this year’s election.
That’s because buying a voting machine is nothing like the quick two-day process of purchasing something on Amazon with a Prime account. The purchase of voting machines requires the establishment of statewide criteria that qualifies the machines, the certification of machines and spot field testing by counties in at least one election prior to widespread use. At the start of the year, Forsyth County election officials were hoping the members of the new state elections and ethics board would be appointed in time for counties to purchase new voting machines to use this year, but now that it’s late February, that deadline has passed, so there’s no way counties will be able to buy and use new machines this year.
One Guilford County elections worker told the Rhino Times that some counties were having to “beg, borrow or steal” machines for use in the May primary and that some of those machines were very old ones. Elections directors aren’t really stealing the machines yet, but the beg and borrow part is spot on.
Tim Tsujii, the Forsyth County Board of Elections director, said many of his county’s voting machines were just decertified and can’t legally be used in the upcoming elections.
“There’s no certification process in place and we have to test machines,” Tsujii said. “Due to the lack of a state board, we were unable to purchase any new equipment, so we formed a contingency plan.”
He added that, before Forsyth County can buy new machines, those machines have to be field tested in an actual primary or general election. Now it is too late for a county to get new election equipment and test the machines during a primary.
He said his county is going to have to rely much more on paper ballots this year.
“There’s a cost associated with it,” Tsujii said.
He said that, when paper ballots are used at a polling place, his office must provide 120 percent of the number of voters, since there has to be one for every potential voter as well as enough ballots to use as backups when people make mistakes.
Tsujii also said one issue he’s facing is that every polling place must have a voting machine that complies with the Americans with Disabilities Act (ADA). There are 101 polling places in Forsyth County, so that means his county needs 101 of those machines as well.
Tsujii said his county was able to borrow some of the ADA-compliant machines needed but had to rent the vast majority that will be used in the primary.
“We’ve been asking around to other counties to see if we could borrow some machines,” he said.
Tsujii is lucky in one respect: His county’s elections board still has three members.
Pat Gannon, the public information officer for the state board of elections said he doesn’t know when the courts will resolve the matter and he cited the election machine issue as one key concern.
“Without a state board, we can’t certify new equipment,” Gannon said,
He added that the security of machines was a central consideration when it comes to authorizing new machines.
Guilford County Board of Elections Director Charlie Collicutt said that state and local elections officials are trying to do the best they can, and he added that at least there’s currently a functioning outlet for election disputes.
“One thing we know is that the Wake County Superior Court will take up issues,” Collicutt said.
That’s been the case so far, but it will be interesting to see how the Wake County Superior Court feels about hearing local election disputes from across the state that are now heard by local elections boards.
Collicutt said election turnout is expected to be higher this year than last year and therefore there’s a likelihood of a greater number of challenges.
He also said that counties could have disputes about early voting sites.
“That can always lead to issues,” Collicutt said of the often lively discussions regarding where voting machines should be placed during early voting.
Former Mayors, Councilmembers May Still Be in Office and Not Know It
By all appearances, Jay Wagner is the mayor of High Point – but, as everyone knows, appearances can be deceiving.
Wagner – like 157 other officials elected across the state who won in the last election – has never been, as required by law, certified to serve in the position he was elected to last November.
That certificate of election from the state elections board is the document that grants candidates the rights and privileges of the office of mayor of High Point and the same rights for other offices. In December, Wagner and the 157 others across the state who were elected with votes from multiple counties assumed office though they never obtained the vital certificate of election from the state that gives them the legal right to do so.
All across North Carolina, there are people now serving as mayors, city councilmembers and town councilmembers even though they were never certified as winners due to the fact that the State of North Carolina doesn’t have a state board of elections to perform that act. Some other cities where elected leaders are serving terms without having been properly certified are Chapel Hill, Roanoke Rapids, Thomasville, Kernersville and Burlington.
Nancy McFarlane, the current mayor of Raleigh who won that seat in a multijurisdictional race in November, is another person who hasn’t been certified as the winner.
The State of North Carolina hasn’t had a board of elections since last July, and it’s not clear when it will get one. A court battle between North Carolina Gov. Roy Cooper and the North Carolina General Assembly over the question is ongoing.
Many candidates in the last election, such as those who ran for seats on the Greensboro City Council, were elected in local races in which the voters for those offices were contained entirely within a single county – and those winning candidates were certified as the winners by local boards of elections such as the Guilford County Board of Elections.
Greensboro Attorney Chuck Winfree, who served on the State Board of Elections from 2001 to 2013, said the issuance of a certificate of election is required before people can serve.
“The law is, you don’t have a right to take office without being certified,” Winfree said.
He said the rights and privileges of holding office emanate from the certificate of election.
“You’re not the winner until you are certified and have a certificate of election or certificate of nomination,” the long-time former state board member said.
(Certificates of nomination go to the winners of primary races.)
Months before the November election last year, attorneys and elections officials alike were making this same point. When the State Board of Elections was dissolved and Cooper wouldn’t appoint a new board, elections officials and attorneys made the same point. They said at the time that, of course, the state had to have the state board of elections in place by the election because it was necessary for the board to certify the winners.
In late August, when everyone assumed the courts would have the issue worked out before the November election, Guilford County Attorney Mark Payne’s comment to the Rhino Times was typical of those from other attorneys and election officials. At the time, Guilford County didn’t have a functioning county board of elections because former Republican board member Don Wendelken resigned from the board, leaving it with only two members, which at that time was not enough to conduct business. (A special order from the North Carolina Supreme Court later allowed two-member boards to meet and decide matters.)
Payne said in August, when speaking about the necessary certifications of Guilford County, that Guilford County Elections Director Charlie Collicutt and his office couldn’t certify winners without a board.
“Charlie has enough authority to hold an election, but you need a board of elections to certify the results,” Payne said. “Until there’s a board to certify them, we won’t even have a final vote.”
North Carolina General Statutes 163-182 state that “certificate of election” is “a document prepared by the official or body with the legal authority to do so, conferring upon a candidate the right to assume an elective office as a result of being elected to it.”
In state statutes, the word “shall” is taken to mean that an action is “mandatory” or “imperative.” The statutes state that the state board shall issue the winners of primary elections a certificate of nomination and the winners of the general election a certificate of election.
It reads, “Issued by State Board of Elections – In ballot items within the jurisdiction of the State Board of Elections, the State Board of Elections shall issue a certificate of nomination or election, or a certificate of the results of the referendum, as appropriate. The certificate shall be issued by the State Board six days after the completion of the canvass pursuant to [state statute] unless there is an election protest pending.”
If there’s a substantive challenge, the certificate isn’t issued until that matter is resolved: “The certificate shall be issued 10 days after the final decision of the State Board on the election protest, unless the State Board has ordered a new election or the issuance of the certificate is stayed by the Superior Court of Wake County pursuant to [state statutes].”
The certificate of election is the validation by the board that the votes have been counted, the winner is in fact the winner, challenges have been addressed and that the rights and powers of the office can be transferred from the previous office holder to the newly elected official.
While there is no state board of elections at present, there is a state elections board office. The Rhino Times asked the state elections board staff in an email: “Is it the view of your office that that state law does require certification by the state board of elections for those multi jurisdictional candidates? If it is, does this create any issues regarding the current legitimacy of candidates who are now serving without any certification?”
In an email response to that question, the state board office responded, “We are not aware of any election officials being challenged or not being sworn in due to the lack of certification in a multi-county contest.”
In response to a question as to whether a future board, once established, would issue certificates of election to those candidates, the response read, “This is something the State Board members will be made aware of once they are seated.”
After the last election, state staff sent a letter to the 158 multijurisdictional candidates. In lieu of the signed certifications that the state board would normally send to winning candidates after an election, the state’s elections office sent a letter to the candidates explaining the situation.
That letter, which was signed by Kimberly Strach, the chief state elections official for North Carolina, read, “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 goes on to state, “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.”
While the letter sidesteps the sticky legal question, it was no doubt less chaotic than instructing 158 elected officials across the state that they couldn’t take office because their elections could not be certified by the state board.
Wagner, who was sworn in as the new High Point mayor in December, said that this matter that is “above my pay grade” and he said it was something for state officials to work out.
Former Guilford County Board of Elections Director George Gilbert said that in all his years as an elections director he had never seen a situation such as this where there was no state board to certify winners. He said one big factor at play is whether or not anyone contests the multijurisdictional winners.
“It depends on the willingness of the incumbent to step down,” he said.
“It’s a board acknowledging that the person has been duly elected,” Gilbert said.
Gilbert also said there are pragmatic concerns to address in the current highly unusual satiation.
“There’s got to be somebody serving,” he said.
One legal argument is that, given that these winners were never certified, the previous office holders should still be in office. For instance, the last term of former High Point Mayor Bill Bencini – or is it current mayor – hasn’t ended because there is of yet no one to replace him.
Guilford County residents may remember the battle between North Carolina state Sen. Trudy Wade and former Guilford County Commissioner John Parks when the two ran against each other 14 years ago for a Board of Commissioners seat. That very close race in November 2004 resulted in a recount and a court battle. As that battle played out, Wade, the incumbent, continued serving as a Guilford County commissioner until May 5, 2006, shortly after the legal conflict ended and Parks was certified the winner.