Legal cloud over agriculture revote: State high court likely to get case
News and Observer December 31, 2004

By Lynn Bonner, Staff Writer

Candidates for state agriculture commissioner say they're preparing for an unprecedented, statewide revote next year that would choose the next guardian of one of North Carolina's largest industries.

Democrat Britt Cobb is conferring with supporters. Republican Steve Troxler's campaign has a fresh appeal for money.

But before they go full-throttle into the next round, their attorneys likely will travel the well-worn path between the state elections office and Wake County Superior Court. Troxler said he plans to appeal the state elections board order for a new statewide vote that would settle the disputed election.

Nearly two months after Election Day, the race has no winner because a faulty electronic voting machine in Carteret County dropped 4,438 ballots. It's those lost votes, compared with Troxler's 2,287-vote edge in the statewide tally, that triggered the elections vortex.

The elections board was divided over whether to have another statewide election or to just collect ballots from the Carteret County residents whose votes were dropped.

What happens next depends on what a Superior Court judge decides and who objects. Another appeal could send the dispute to the state Supreme Court.

After hearing the case twice, elections board member Lorraine Shinn, a Greenville Republican, prefers it stay with the courts rather than come back to the board. She's ready for the state's Supreme Court justices to make the call.

Shinn doesn't sense any movement on the board.

"We're kind of at an impasse, as you can see," she said. "If it gets remanded back to us again, I don't know what we'll do."

On Wednesday, the elections board, using an unusual maneuver, voted 3-2 for a new statewide election to settle the race. Troxler contends the order is illegal because state law says four votes are needed.

Elections experts interviewed Thursday held the near-unanimous view that the case will end up in the state Supreme Court.

If the court agrees with Troxler's view that the board improperly ordered a new election, then it can stop the vote, said Robert Spearman, a Raleigh lawyer and a Democratic former elections board chairman.

"As with most of these kinds of controversies, once the court has jurisdiction, it's really going to have the final word on it," he said.

Officially, judges have limited powers in elections disputes.

Judges can decide whether or not the elections board acted properly. They can interpret a part of state law the board members are fighting over. But they cannot declare a winner, said Raleigh lawyer Roger Knight. Knight represented Republican House Speaker Richard Morgan in the most recent redistricting lawsuits.

"There's nothing in the statute that provides that the Supreme Court would have the authority to say one or the other can win," Knight said. "I don't see that happening in that case."

No one can remember a time when the courts ordered a new election, but the state is carving out new territory.

"Difficult situations make for new law," said Michael Crowell, the Raleigh lawyer handling an elections appeal for Bill Fletcher, the Republican candidate for state education chief. With a case bouncing back and forth between the elections board and the court, Crowell said, "this could be the kind of case that makes the court rethink that position."

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