In a textbook example of a catch-22, the Guilford County Board of Elections has until Monday, Sept. 4 to respond to a lawsuit filed by the Durham-based Southern Coalition for Social Justice (SCSJ) – however, the elections board isn’t legally able to meet in order to vote on how to proceed or to give any direction to the attorneys representing the board.
The SCSJ filed the lawsuit against the Guilford County Board of Elections on Friday, July 14 to recover more than $600,000 in legal fees and other costs that the SCSJ incurred in a 2015 case brought by SCSJ and the City of Greensboro against the Guilford County Board of Elections. In April 2017, District Court Judge Catherine Eagles found in favor of the SCSJ.
Guilford County didn’t defend itself – maintaining that the North Carolina General Assembly was the responsible party since it was the body that conducted the redistricting action. The City of Greensboro hasn’t asked for reimbursement of legal fees related to the case but the SCSJ has, and now the Board of Elections is facing the suit to collect those costs.
Guilford County Attorney Mark Payne asked the court not to assess the fees against Guilford County but Eagles said that she would allow the SCSJ to sue for legal expenses.
But then there’s a hitch: Currently, there is no Guilford County Board of Elections and there’s no way to get one soon enough to respond to the suit in time for the deadline.
Payne said this certainly places Guilford County in an interesting position.
“We have until Sept. 4 to file a response,” Payne said, “and not having a Board of Elections that can make any decisions certainly has a potential impact – since that party can’t make decisions.”
In legislation earlier this year, the General Assembly created a newly structured state elections board – one that was combined with a state ethics board. However, North Carolina Gov. Roy Cooper has argued that the move was unconstitutional and has refused to appoint any members to the new state board.
The courts upheld the new elections and ethics board approved by the legislature, and now Cooper and elections officials across the state are waiting on a decision on the matter from the North Carolina Supreme Court. That court is scheduled to hear oral arguments in the case on Monday, August 28. Election officials say they need a decision in relatively short order since there’s an election approaching and there are many matters related to that election that the state and county elections boards must handle.
Even after a Supreme Court decision goes into effect, it will take time to appoint a state board, get that board up and running and proceed to appoint new county board members for those counties, such as Guilford County, which currently can’t conduct any election business that requires the approval and oversight of its elections board.
Members of the Guilford County Board of Elections would be appointed by the state elections board – now called the Bipartisan State Board of Elections & Ethics Enforcement. But until that state board is appointed, there’s no one with the legal authority to appoint new members to the Guilford County Board of Elections – or to any other county elections boards in North Carolina for that matter.
Republican Guilford County Board of Elections Member Don Wendelken resigned from the Guilford County Board of Elections last month and that meant the board was defunct for lack of a quorum – since elections boards in the state went from three-member to four-member boards when the new legislation went into effect in July. The remaining two members of the Guilford County elections board – Jim Kimel, a Democrat, and Kathryn Lindley, the board’s Republican chair – have no power to direct the board’s defense, negotiate a settlement or sign off on any move the county chooses to make.
Payne said he was reviewing the matter and considering the options. He said at this point the best move might be to file an extension with the hope that the court will take into account the unusual nature of the county’s predicament.
The last direction from the NC Supreme Court to state election officials was in a July 20 order ”for the purpose of preserving the status quo during the expedited consideration of this case.”
The state’s Supreme Court ruled: “The status quo as of the date of this order is to be maintained. Therefore, until further order of this Court, the parties are prohibited from taking further action regarding the unimplemented portions of the act that establishes a new ‘Bipartisan State Board of Elections and Ethics Enforcement.’”
The court also ordered that, “During the consideration of this case by this Court, the parties have no duty to take action to implement further the provisions of the Act providing for the establishment, qualification, or organization of the Bipartisan State Board of Elections and Ethics Enforcement and, furthermore, may not proceed in any manner to make any appointments to, or to provide for, the reestablishment, re-qualification, re-organization, or re-constitution of the former North Carolina State Board of Elections or the North Carolina State Ethics Commission.”
The Supreme Court ruling states that the parties involved may petition the court to obtain modifications when those changes are deemed “necessary to preserve the status quo and to ensure the orderly and lawful conducting of local and other elections during the consideration of this case by this Court.”Guilford County Board of Elections Director Charlie Collicutt said that county elections board matters are currently in a state of suspended animation. Not only can the Guilford County Board of Elections not meet to guide the lawsuit defense, it also can’t vote on other election matters.
“Basically, the Supreme Court has frozen us in place,” Collicutt said. “The court said, ‘We’re not going to issue an injunction, however we’re going to freeze everything in place.’”
Collicutt said any questions about the board’s defense, given the existing situation, were best directed toward Payne, but he did add that the Board of Elections handled some matters before Wendelken resigned last month. Wendelken’s resignation effectively put the board out of business.
“I think the board set the ball rolling and it’s just been rolling,” Collicutt said. “There has been discussion with the county attorney [regarding the case].”
Under normal circumstances, the Guilford County Board of Elections would hold its next meeting on Tuesday, August 22.
Collicutt said that staff will keep the two elections board members informed of events and added that soon there will be a need for an elections board that’s legally allowed to take actions.
“I can get through the August meeting, but fairly soon in September I’m going to need the board,” Collicutt said.
The board makes all sorts of determinations before an election including those regarding the eligibility of people to register to vote and the fate of early mail ballots that that were filled out improperly and the board answers a host of other pre-election questions that come up.
Collicutt said the board must weigh in on many issues prior to any election so that, for instance, a voter who mailed his or her ballot knows there’s a problem and has time to resolve it so the votes will count.
He gave other examples as well.
“I need them to tell me how many voting machines to put in each precinct,” he said.
Payne said there’s no way Guilford County can arrive at valid results without an elections board being in place.
“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.”
Payne said he had no information indicating when the state elections board issue will be resolved.
Guilford County Commissioner Skip Alston said that the Board of Commissioners might be able to provide some guidance and he added that the commissioners would no doubt weigh in on the lawsuit eventually because the commissioners would need to, for instance, sign off on a settlement paid out by Guilford County.
One Guilford County official said that Cooper and the state legislature were “playing a game of chicken” and that game would likely continue until it led to some “major election disaster.”