RALEIGH, N.C. — The State Board of Elections agreed Tuesday to allow voters whose ballots were lost due to a machine malfunction in Carteret County to cast new ballots in a special election for state agriculture commissioner.
The board voted 4-1 to allow participation in the election by early voters whose ballots were lost, plus anyone who did not vote Nov. 2.
No date was set for the special election.
Republican Steve Troxler leads incumbent Democrat Britt Cobb by just 2,342 votes out of 3 million cast in the agriculture commissioner's race. More than 4,400 votes were lost in coastal Carteret when machines didn't record some votes.
The only vote against the proposal came from Larry Leake, the board chairman who earlier expressed concern about the panel's power to limit the election to one county rather than the whole state.
Tim McKay, a spokesman for Cobb, said he didn't know if Cobb would accept the ruling or appeal it. "It's something unexpected," he said.
Troxler also said the board's decision surprised him.
"It's a little bizarre, to tell you the truth." he said. "It's new. It's unprecedented. It's uncharted waters."
The vote for the special election followed a chaotic series of motions and votes that threw the agriculture commissioner race -- still unresolved four weeks after Election Day -- into further confusion.
By a 3-2 margin, board members initially voted down motions to allow a revote by the Carteret voters whose ballots were lost and to hold a new agriculture commissioner election in that county.
Board members voted 3-2 in favor of calling a new statewide election for agriculture commissioner. But because four votes were required for passage of that measure, it also failed.
That left the board at an apparent impasse and members called a recess. Upon returning to session, board members voted in favor of the Carteret-only special election. Gary Bartlett, director of the board of elections, says 23,971 voters will be eligible to cast ballots in the special election.
"It's not exactly what we had asked for, so there's a new wrinkle to it. We'll evaluate it for a couple of days and see what we'll do," Troxler said.
Earlier, the board rejected a protest over ballots cast outside voters' precincts and unanimously certified Democrat June Atkinson as the winner of the race for state superintendent of public instruction. Atkinson led her race by 8,535 votes over Republican Bill Fletcher.
Still, the fight over thousands of provisional ballots continued in court.
By a 4-1 margin, the board rejected Fletcher's claim that the provisional ballots cast on Election Day in the wrong precincts should be thrown out.
Michael Crowell, an attorney for Fletcher, had argued that as many as 10,000 such ballots are invalid under the state constitution. He has filed appeals asking the state's appellate courts to block the board's certification of the race until the courts weigh in on the provisional ballot issue.
Crowell also argued that county board of elections unfairly applied varying standards in tabulating the provisional ballots.
An attorney for Atkinson argued that Fletcher was engaging in "selective disenfranchisement" by trying to eliminate the votes from people who mistakenly went to the wrong precinct to vote.
"These ballots did not favor Mr. Fletcher, so the action was filed," said John Wallace.
In rejecting the appeal and certifying Atkinson's victory, the state board declined to take a stand on the constitutional merits of the issue.
"I'm afraid the courts will have to rule on this constitutional question," said Chuck Winfree, a Greensboro Republican.
Another Republican board member, Lorraine Shinn of Greenville, cast the lone vote in favor of the protest by Fletcher and a Republican candidate for Guilford county commissioner.
On Monday, Wake County Superior Court Judge Henry Hight declined to delay certification of Fletcher's race while the provisional ballot question is decided by the courts.
Fletcher plans to appeal both the elections board's ruling and Hight's decision.
Candidates have 10 days after their protests are handled by the board to appeal any ruling.
Atkinson hugged supporters after the board made her the official winner. She urged Fletcher to concede, but acknowledged the race may not be over.
"I'll take one day at a time and I feel confident that in the end that I will be the next state superintendent," she said.
Still up in the air was the identity of the next agriculture commissioner.
Officials have said 4,438 ballots were lost in Carteret County when touch-screen voting machines failed to record some votes - a number that could change the winner in the Troxler-Cobb race.
The ballots weren't counted because the machine manufacturer failed to change a setting that would have stored those ballots. Election officials can identify the citizens whose votes weren't recorded because they participated in early, absentee-style voting.
Cleveland County election officials also failed to recount 120 ballots in mid-November because they had been thrown out by mistake on election night, after the first round of counting was completed.
The lost ballots highlight numerous problems discovered after Election Day, including tabulation errors and misplaced ballots. Nearly all the errors have been corrected, officials say.