Governor’s legal battle over election board leaves counties in limbo


Dan Way - Carolina Journal



RALEIGH — Gov. Roy Cooper’s refusal to appoint members to the new Bipartisan State Board of Elections & Ethics Enforcement has shut down 10 county boards of elections, adding confusion to the 2017 electoral process.

The state elections and ethics board was required to appoint county board members on Tuesday. That did not happen because Cooper has refused to appoint state board members.

Cooper’s intransigence prevented appointments to county boards by Tuesday’s statutory deadline. He is awaiting the state Supreme Court to rule on his constitutional challenge to creation of the new board.

A three-judge Superior Court panel dismissed Cooper’s lawsuit on June 1. Cooper asked the Supreme Court in late June to stay that decision until his appeal is heard. Earlier this month he asked the Supreme Court to take the case, skipping past the Court of Appeals.

That leaves the county boards in limbo because the state board is charged with appointing four county board members from lists of three candidates provided by the Democratic and Republican parties. Previously the county boards had only three members.

Kim Westbrook Strach, executive director of the state board, sent a memorandum to county boards on July 5 directing them not to meet if they have a board vacancy.

The new law requires three-fourths of county board members to be present to constitute a quorum. Holdover three-member boards cannot meet that requirement if they are one member short. Boards that retained three members must vote unanimously to approve any actions.

Vance County Board of Elections member Cathie Clodfelter said her board is unable to meet because chairman Kevin Kilgore moved to Wake County. Clodfelter, a Republican, and Seneca Nicholson, a Democrat, are the remaining board members.

Carteret, Chowan, Cumberland, Edgecombe, Jones, Lincoln, Perquimans, Pitt, and Transylvania are in the same vacancy holding pattern as municipal and primary elections approach.

Clodfelter said the county board cannot setting hours and days for one-stop early voting, authorizing polling locations, and hiring precinct workers until the lawsuit is decided. County boards typically are handling those duties by now to prepare a formal plan requiring state approval.

One-stop voting for Henderson municipal elections begins Sept. 21. Clodfelter worries time might run out to formalize that process.

While her board is in limbo, it can’t provide typical functions such as hearing challenges to a voter’s eligibility. Voter challenges have come up in the past for people who own second homes at Kerr Lake and want to transfer their voter registration, Clodfelter said.

Likewise, the board can’t hear challenges to a candidate’s qualifications, Clodfelter said. Candidate filing began last Friday and ends July 21 for Henderson’s elections.

If a request for a special election to allow for liquor by the drink were received, as in the past, the board could not grant it, she said.

Sharon Lewis, Carteret County Board of Elections director, said no issues have arisen yet in her county requiring board action. But shortly the board must approve poll workers, test voting equipment, hold a mock election, and order ballots.

“We’re just crossing our fingers and saying a prayer” the impasse is resolved promptly, Lewis said. “It’s unbelievable. It’s one of those things you thought would be settled.”

She blamed politics for the turmoil, saying there is “more than enough [blame] for everyone to share.”

Josh Lawson, the state board’s general counsel, said county board members would not be seated until July 18 under the law, so if Cooper relents before then there would be minimal effect.

An annual, mandatory meeting will be held next month to inform county boards of elections about new laws and other changes.

But if the gridlock persists, new county board members would have increasing trouble getting up to speed on their duties once appointed.

With expansion to four-member county boards, there will be 100 new board members statewide. In Wake County, two of the three present board members said they don’t want reappointments. “There are lots of counties like that,” Lawson said, further driving up the number of new appointees needed.

If a third party challenges a municipal candidate’s qualifications, the law allows just 10 days for the county board to rule on it. In counties with board vacancies barring meetings, the challenger would have to pay court filing fees and take the case to the Court of Appeals, Lawson said.

If a county board splits 2-1 on site locations or hours for one-stop voting, as sometimes occurs, the normal appeal to the state is not possible since that board hasn’t been seated.

“There’s no mechanism to resolve that,” Lawson said. “It gets really kind of nutty.”

In an additional wrinkle, Gerry Cohen, a longtime attorney for the General Assembly, noted in a Facebook post that if the Supreme Court sides with Cooper, then the Wake County Board of Elections may have no Democratic or Republican members.

The state parties had until June 12 to submit nominees for county boards, and only the Libertarian Party sent three names — two registered Libertarians and an unaffiliated voter. The GOP submitted names a week late; Democrats sent their nominees July 10.

Dan Way

Carolina Journal

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