State Supreme Court: Some Provisional Ballots Violate N.C. Law
Posted February 4, 2005
RALEIGH, N.C. — The North Carolina Supreme Court ruled Friday that provisional ballots cast in the wrong precinct on election day cannot be lawfully counted, raising new questions about the state's Nov. 2 election results.
The ruling was a victory for the Republican candidate for superintendent of public instruction, Bill Fletcher, who is locked in a tight battle with Democrat June Atkinson and who said that provisional ballots cast in the wrong precinct should not be counted.
A Wake County court ruled against Fletcher, but the Supreme Court unanimously reversed that Friday and returned the case to that court.
Fletcher trails Atkinson in balloting from November's general election by 8,535 votes out of more than 3.3 million cast.
In the high court's opinion, Associate Justice George Wainwright said election officials should "work with voters to help them locate their correct precinct" rather than accept ballots cast at the wrong precinct.
"Indeed, when a voter appears at the wrong polling place, election officials have a statutory duty to assist the voter in finding the correct precinct in which to vote," Wainwright wrote. "In sum, North Carolina law does not permit out-of-precinct provisional ballots to be counted in state and local elections."
It was not immediately clear what the next step for state election officials would be or what effect the decision might have on up-in-the-air local races. The Supreme Court remanded the case to Wake Superior Court.
Tricia Willoughby, the current schools chief, is filling the job until either Atkinson or Fletcher is named the winner.
In results posted on the State Board of Elections Web site, Atkinson leads Fletcher by 1,655,719 votes to 1,647,184.
The board has said 11,310 ballots cast in the wrong precinct on Election Day are included in its results. It's unclear whether removing those ballots would change the winner in the superintendent's race.
Atkinson said she doubts Fletcher can close the margin even if all the provisional ballots are discarded.
"I still feel confident that I will be the next state superintendent," Atkinson said Friday. "The odds heavily favor me."
The other unresolved statewide race before Friday was for agriculture commissioner. But Democrat Britt Cobb conceded that race Friday morning and the elections board immediately voted to certify Republican Steve Troxler's win, which means the Supreme Court's ruling should not change that outcome.
The court rejected an argument by Atkinson that the General Assembly should be allowed to resolve the issue. State law only allows legislators to decide an election in the event of a tie, the court said.
The court said that counting only those votes cast in the correct precinct protects the sanctity of elections.
"Had the General Assembly intended that each voter be permitted to cast a ballot at his precinct of choice, this statute would surely have employed the phrase 'any precinct' or 'a precinct,"' the ruling said.
"If voters could simply appear at any precinct to cast their ballot, there would be no way under the present system to conduct elections without overwhelming delays, mass confusion, and the potential for fraud that robs the validity and integrity of our elections process."
The Democratic-controlled State Board of Elections rejected Fletcher's ballot arguments in December, and Atkinson had been preparing to take office when the state Supreme Court told her to wait until the issue was resolved.
"The State Board of Elections simply interpreted the law incorrectly," Fletcher's lawyer Michael Crowell said Friday.
But State Board of Elections director Gary Bartlett said he was at the Legislature when lawmakers crafted the provisional ballot law and knows their intent was to allow out-of-precinct voters to cast ballots on Election Day. He declined to comment on Friday's ruling.
Democratic Party Executive Director Scott Falmlen charged that the justices were pandering to their Republican "political cronies."
"Today is a dark day for democracy in North Carolina," Falmlen said in a prepared statement. "The justices of the North Carolina Supreme Court are elected to fairly and impartially interpret the Constitution of our State, not to do the partisan bidding of any political party or candidate."