The wheels of justice may turn slowly but, when it comes to elections, time marches on.
A recent ruling by the North Carolina Supreme Court makes that fact about time ominous because that ruling means there will be further delay before a now vacant state board of elections is named.
The Supreme Court decision sends the high-profile politically charged case back to Wake County Superior Court and gives that court 60 days to make a determination on the merits of the case. The same ruling also allows some counties with only two board of elections members, such as Guilford County, the ability to meet and take action rather than remain in the state of suspended animation that those boards have been in.
Of course, an election on the way isn’t good news for election offices across North Carolina with no state board in place to oversee it.
North Carolina Gov. Roy Cooper has refused to appoint members to a combined state elections and ethics board established earlier this year by the NC General Assembly because Cooper does not approve of the legislation that merged the two boards and made other changes.
The state elections board appoints county boards of elections members to their seats, and currently there are 16 counties that have fewer than three board members.
Earlier this year, the North Carolina General Assembly changed all county boards from three-seat boards to four-seat boards. That increase from three to four members took effect in July, but no new county board members could be appointed to fill those new seats until a state board of elections is named.
The new state Supreme Court ruling in the case of Cooper v. Phillip Berger et al. will create a further delay in the process of naming a state board and filling the empty slots on county boards. The state board is also needed for other legal and procedural actions before, during and after the upcoming elections. In Guilford County, early voting in the primary election starts on Thursday, Sept. 21.
This summer, a Wake County Superior Court panel of three judges ruled that that court did not have jurisdiction to decide the case and that case moved to the North Carolina Supreme Court, which has now, in its latest ruling, sent the matter back to the Wake County and given that court 60 days to make its determination as well as to explain why that court claimed not to have jurisdiction.
After that, the case could be back at the state Supreme Court. When the legal battle ends, a state board will have to be appointed first and then that state board can fill the vacant county board seats.
The state Supreme Court’s ruling states, “A three-judge panel of the superior court dismissed plaintiff’s complaint because the panel determined that it lacked jurisdiction over the subject matter of plaintiff’s claims … The Constitution of North Carolina vests the superior court with ‘original general jurisdiction throughout the State.’”
The ruling also states that the proper course of action would be for Superior Court to address the merits of the case before the North Carolina Supreme Court reviews it again. The Wake County court was also instructed to explain why that court believed it lacked jurisdiction to rule on the case.
Another part of the new state Supreme Court ruling offered good news for the Guilford County Board of Elections and the 15 other county elections boards that have fewer than three members. Under the law passed by the North Carolina General Assembly earlier this year, all 100 county boards have four seats – with three members making a quorum, allowing that board to conduct business. That meant that two-member boards didn’t have enough members to establish a quorum. In July, former Guilford County Board of Elections Member Don Wendelken resigned suddenly, putting that board out of business due to a lack of members, until the state’s Supreme Court made this new ruling.
The North Carolina Supreme Court ruling states that, until this matter is resolved, Guilford County’s elections board and the 15 other two-member boards have the ability to meet and take action.
North Carolina still, however, doesn’t have a state elections board and may not get one in the foreseeable future. That means things could get very interesting for local elections offices and county elections boards as the primary and general elections approach and an increasing number of issues will need to be handled by that now non-existent state board.
In the legislation earlier this year, the General Assembly created the newly structured state elections board – one that was combined with a state ethics board. However, Cooper argued that the move was unconstitutional and he refused to appoint any members to the newly created state board.
Now the Wake County court has the hot potato again and must make its decision by the end of October. The matter is then likely to be reviewed by the state Supreme Court and it will take additional time to appoint a new state elections and ethics board.
Guilford County Attorney Mark Payne said this week that the Guilford County Board of Elections is now clear to meet and make decisions. He said that as long as any decision of the two existing board members is unanimous it carries the same force as any decision previously made by the board.
When Payne was asked whether he anticipated that the current state legal battle would be worked out in time for the next election, he responded, “How about them Heels.”
Guilford County Board of Elections Director Charlie Collicutt said he will need a state board.
“I need them to certify results across county lines and for appeals and challenges,” Collicutt said. “It is concerning and we do need an answer.”
He said that hopefully no Guilford County challenges, protests or other issues the state board must address will come up soon.
Collicutt said his office had begun mailing out ballots for oversees and military voters and that staff is now prepping for early voting and training poll workers.
Forsyth County Board of Elections Director Tim Tsujii said his office will need the state board rulings for any protest or challenges and added that these types of issues tend to come up as the election occurs, though he added his county had been lucky in that regard so far.
Tsujii said he’ll also need a state board to approve paper based election machines for his county. All counties must be using that type of machine by 2018.
“That’s one thing we need a state board for that affects Forsyth County,” Tsujii said. “The law requires that all counties go to a paper-based system.”
He said that some of the machines his office now uses do not qualify.
“Those will be decertified on Jan. 1, 2018 and we will need new voting machines,” he said. “That’s an issue for us. Any new equipment will need to be approved by the state board.”
He said buying new elections machines is a multi-step process that must start well before the actual purchase.
