Judge calls off agriculture race revote
News Record January 13, 2005

By Mark Binker, Staff Writer

RALEIGH -- A Superior Court judge sided with Guilford County farmer Steve Troxler and called off a second statewide election to decide the agriculture commissioner race.

"It's been a long battle, but I've had to believe all along that things would turn out right, and I still believe they will," Troxler said as he answered phone calls at his Browns Summit home.

Judge James Spencer's ruling on Wednesday sends the case back to the State Board of Elections. It does not say what the final outcome of the race between Troxler, a Republican, and Democratic incumbent Britt Cobb should be.

Troxler has led Cobb since Nov. 2, when more than 3.4 million people cast votes in the election. Current tallies put Troxler's lead at 2,287 votes.

But a voting machine in Carteret County lost 4,438 votes, enough to erase that margin.

The five-member State Board of Elections has struggled to determine the election's final outcome. First the group called for a peculiar special election that would have polled all those whose votes were lost, as well as any voters who did not cast ballots on Election Day. A judge struck down that order.

Meeting again on Dec. 29, the board's three Democrats voted for a new statewide election. The board's two Republicans refused to go along.

Typically, the board needs at least four votes to order an election be held again. However, the board's Democrats used a parliamentary maneuver to try to modify their earlier order, something they said would only require three votes.

Spencer disagreed.

"What occurred here was an attempt at an impermissible end run around a statute that is clear and controlling. The result was unlawful and will not be permitted to stand," Spencer wrote in a decision that he filed close to 5 p.m. on Wednesday.

In an e-mail, Cobb said he was "frustrated" with the order but made no mention of whether he would appeal Spencer's ruling to a higher court.

"The matter has been bounced back and forth like a ping-pong ball," Cobb wrote. "Considering the impasse, perhaps it's time the State Board of Elections referred the matter to the General Assembly."

Cobb pointed to a section of the state constitution he said allows the legislature to settle a "contested election."

Both houses of the General Assembly are controlled by Democrats, so such a solution could favor Cobb.

"I really believe that the citizens of North Carolina will stand on their heads if there is a maneuver tried like that," Troxler said.

Troxler's campaign volunteers spent much of last week collecting affidavits from Carteret County residents whose votes were lost. Troxler said he has collected enough affidavits to show he won the election. Those affidavits were presented before Spencer earlier this week. Troxler's lawyer, Marshall Hurley of Greensboro, argued that Spencer should use the affidavits to declare Troxler the winner.

Instead, Spencer made sure to mark them as legal exhibits and ordered that they be made available to the State Board of Elections.

"(The) board may examine the affidavits and if found to be in proper form, with valid waivers of the secrecy of the ballot, may consider them in its determination of whether the matter should be reopened on ground of new evidence," Spencer wrote.

"We hope the third time will be the charm," Hurley said. "I think the court is very clear in what needs to happen from here."

Spencer's order notes that the board's decisions regarding this case seemed to be influenced by politics as much as protocol, noting that every vote in the election board's last hearing was decided along party lines. His order warns that although Spencer was unwilling to impose his judgement on the case this time, further appeals could prompt the courts to more directly settle the case.

"(The) court does observe that there comes a time when the passion of partisan politics must give way to the integrity of the electoral process," he wrote. "The people of North Carolina deserve and have a right to expect it and the integrity of our system of government demands it. That time, if not long past, is now." 

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