N.C. Supreme Court Tackles Issue Of Out-Of-Precinct Ballots

Five justices heard arguments from attorneys for the state and two candidates in the still-pending superintendent of public instruction race.

Republican schools chief candidate Bill Fletcher argues that provisional ballots cast in the wrong precincts Nov. 2 should be excluded from the final vote totals.

With those contested votes counted, Democrat June Atkinson leads Republican Bill Fletcher by 8,535 votes. She has been barred from taking office until the case is resolved.

The State Board of Elections says 11,310 voters cast ballots on Election Day in the wrong precinct but their choices still counted. It's unclear whether pulling out those ballots would change the winner.

The General Assembly has given the counties the job of registering and identifying voters, so people who fail to show up at their correct precinct should still be allowed to vote, said Chris Browning, a state attorney. Those voters' identities are later confirmed by the county to ensure they are registered voters.

"It's clear that out-of-precinct ballots should be counted if they voted in the county in which they were registered," Browning told the court.

But justices cited laws stating that voting in the right precinct was the controlling factor in whether someone should vote.

"What responsibility do you place on the individual voter to go to the correct location?" Justice Edward Brady asked John Wallace, an attorney for Atkinson.

Voting in the wrong precinct doesn't disqualify someone from having their ballot count in statewide races, Wallace replied.

Voters are required by law to go to their home precinct, said Fletcher's attorney, Michael Crowell. Taking the state's argument further, Crowell said, anyone could vote for statewide office even if the person showed up in a different county.

Brady worried out-of-precinct balloting could also lead someone to vote at multiple precincts on the same day.

"Doesn't it lend itself to fraud?" he asked. "Vote early, vote often?"

The justices then questioned whether other forms of out-of-precinct balloting -- traditional absentee voting and more recent one-stop voting -- also should be found illegal under Fletcher's argument. Nearly 1 million of the 3.5 million ballots cast statewide in the fall were cast early.

The Legislature has made clear in statutes that those types of voting are lawful, said Bob Hunter, an attorney representing two local GOP candidates involved in the lawsuit.

"Limit your decision. Simply state that this does not apply to one-stop voting," Hunter said at the close of the arguments, which went about 10 minutes over their allotted length of one hour.

Chief Justice Beverly Lake Jr. did not say when the justices would rule.

Fletcher and Atkinson each attended the hearing.

Democracy North Carolina and other voter advocacy groups filed a brief supporting the count of out-of-precinct ballots, saying a disproportionate number of black citizens cast those votes and that federal civil rights issues could be raised if they're discarded.

The justices also questioned Wallace's argument that Fletcher should have gone to the General Assembly, instead of the courts, to challenge Atkinson's apparent victory.

Should the out-of-precinct ballots be thrown out, the results of the agriculture commissioner's race could also be adjusted. That race is already being delayed because of 4,438 lost ballots in Carteret County. Incomplete results have Republican Steve Troxler leading Democratic incumbent Britt Cobb by 2,287 votes.

Justices Sarah Parker and Robert Edmunds recused themselves from Tuesday's arguments and will not participate in the ruling. The justices don't have to give a reason.

The case was heard in the courtroom of the state Court of Appeals. The justices, hearing their first case there in 65 years, will use the court for at least the next year while the Supreme Court building is renovated.