N.C. judge declines injunction over provisional ballotsABC 11 November 29, 2004
A Wake County judge declined Monday to delay certification of the race for state schools chief while the courts decide whether thousands of Election Day ballots should have been counted.
Republican candidate Bill Fletcher and two local candidates had sought a preliminary injunction from Superior Court Judge Henry Hight, arguing that 10,000 provisional ballots cast in the wrong precincts on Nov. 2 should be left out of the final vote totals.
Fletcher trails Democrat June Atkinson by 8,535 votes out of about 3.3 million cast in the race for state superintendent of public instruction.
Michael Crowell, a lawyer for Fletcher and the other candidates, said they plan to appeal Hight's ruling Tuesday.
"We believe we are correct as a matter of law," Crowell said. "One way or another, this is going to have to be decided by the appellate courts."
Also Tuesday, the State Board of Elections is scheduled to hear formal protests of the election by Fletcher and other candidates -- including both competitors in the race for agriculture commissioner, where Republican Steve Troxler leads Democratic incumbent Britt Cobb by 2,342 votes.
In addition to protesting the counting of provisional ballots, candidates are disputing the election based on votes that have been documented as lost -- more than 4,400 in Carteret County and 120 in Cleveland County.
The board could order new elections in the superintendent and agriculture commissioner races or could allow a revote by Carteret voters whose ballots were lost.
Even without the injunction, candidates have 10 days after their protests are handled by the board to appeal any ruling.
During Monday's court hearing, Crowell told Hight that the North Carolina constitution should be read as barring people from voting at the wrong precinct on Election Day. Letting people vote in any precinct within their county increases the likelihood of electoral fraud, Crowell argued.
The state constitution says U.S. citizens at least 18 years old can vote in North Carolina elections provided they have lived in the state for a year and within a precinct 30 days prior to the election.
Bob Hunter, another lawyer for Fletcher and candidates from Guilford and Mecklenburg counties, said that means out-of-precinct ballots are unlawful.
But lawyers for the state said the same logic would make unlawful the more than 1 million votes cast before Nov. 2, either by absentee ballot or through early voting.
"North Carolina law specifically states that out-of-precinct ballots are to be counted," said Alexander Peters of the state attorney general's office.
The State Board of Elections issued a rule this year telling the county boards to count out-of-precinct ballots only in races in which the voter would have been able to vote from their home precinct, Peters said.
However, Hunter said, each county has used different procedures in tabulating those partial ballots, leading to inconsistent results. That's why the courts should either force the state board to call for a new election or remove those out-of-precinct ballots from the vote totals, he argued.
The provisional ballots were set aside on Election Day, after which county election officials went through them and checked the voter's address to determine whether the person was registered and which races the voter was eligible to vote in.
Fletcher and Atkinson both attended Monday's hearing, then stood next to one another to answer reporters' questions.
While respecting Fletcher's right to go to court, Atkinson said she remained confident that she will end up winning the race.
Fletcher said his complaint was prompted by the numerous controversies over tabulation errors and lost ballots that have marked this year's North Carolina election. "I think the candidates and the citizens deserve an accurate count, and we want to make sure we get one," he said.