Throwing out ballots: Supreme Court ruling cast doubt on state, local races
Charlotte Observer February 6, 2005


A state Supreme Court decision has thrown out 11,310 provisional ballots cast by voters in the wrong precinct on Nov. 2, heaping further confusion on one statewide race and possibly affecting some local races in Guilford, Mecklenburg and elsewhere. It means that North Carolina still doesn't have a winner in the race for Superintendent of Public Instruction, where Democrat June Atkinson led Republican Bill Fletcher by about 8,500 votes before the ruling.

It may also mean protracted litigation to resolve whether N.C. voters must cast their votes only in the precinct where they reside. Because many of the provisional voters were black, there may be federal voting rights issues to resolve as well. (It might also have affected the race for agriculture commission, but incumbent Democrat Britt Cobb conceded to Republican Steve Troxler hours before the court ruled.)

The Supreme Court found that North Carolina law requires voters to cast their ballots in their home precincts on Election Day -- and 11,310 provisional votes cast in the wrong precincts cannot be counted for state races.

The ruling does not affect those votes in federal races such as president and U.S. senator, because the federal Help Americans Vote Act mandates that provisional votes cast by registered voters must be tallied in federal races. State election officials believed the legislature intended that the same rule would apply in state races.

That made sense. After all, more than one million North Carolinians cast early absentee ballots at local board of election offices and designated one-stop voting sites, most of them not their usual polling places. With the principle already established that voters may cast absentee ballots out of their precincts, it seems contradictory to prohibit Election Day voters from doing so as well. Early voting is so popular that state election officials are seeking legislative permission to allow one-stop sites to remain open through Election Day and close some precincts.

The Supreme Court did not address the one-stop, out-of-precinct contradiction. It said in a footnote that absentee voting and even "election day voting at specially created `out-of-precinct' voting places ... are not at issue in the present case." That's a disappointing dodge of what many believe is the central issue: either out-of-precinct voting is legal, or it isn't.

The court's interpretation was not based on how federal elections work, or on how popular one-stop voting has become, or on constitutional grounds. It turned on the state's laws, which the court said were written in plain language that clearly requires voters to cast their ballots in their own precincts on Election Day.

The Supreme Court's ruling is a setback for those who had looked to the new federal law as a way to accommodate more voters. The ruling indicates that state election law has not yet caught up with the changes in federal voting practices enacted after the 2000 election nightmare in Florida. The Supreme Court has no quibble with one million North Carolinians casting ballots out of precinct before the election but tosses out the votes of 11,310 on Election Day. That's nuts. The General Assembly must provide common sense where the Supreme Court could not -- and authorize properly registered provisional voters to cast ballots out of precinct on Election Day.

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